            Case: 15-15335   Date Filed: 07/21/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15335
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:10-cr-00269-TCB-AJB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MEKAEL DANIELS,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (July 21, 2016)

Before ED CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      Mekael Daniels appeals pro se the district court’s denial of his motion to

compel the government to file a Federal Rule of Criminal Procedure 35(b) motion

for reduction of sentence based on substantial assistance.

      Daniels pleaded guilty to one count of possession with intent to distribute

100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Pursuant

to a written plea agreement, he agreed to cooperate with the government. In return

the government agreed to inform the district court of his cooperation. The plea

agreement provided that if Daniels completed his cooperation before sentencing

and the government determined that it amounted to “substantial assistance,” then it

would recommend a downward departure at the sentence hearing. If Daniels

completed his cooperation after sentencing and the government determined that it

amounted to “substantial assistance,” then the government would file a Rule 35(b)

motion for reduction of sentence. The plea agreement stated that in “either case,

[Daniels] understands that the determination as to whether [he] has provided

‘substantial assistance’ rests solely with the Government.”

      The government determined that the cooperation Daniels provided before his

sentencing amounted to “substantial assistance,” and accordingly filed a motion

under United States Sentencing Guidelines § 5K1.1 recommending a downward

departure at his sentence hearing. During the hearing the government informed

Daniels that it deemed his cooperation to be complete. It told him that if he wished


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to provide further information in the future in the hope of prompting the

government to file a Rule 35(b) motion, then he should contact the United States

Attorney’s Office to see if it was willing to consider his cooperation. The

government made that point clear because of his “disconcerting” pattern of

“get[ting] out of prison, commit[ting] another crime, [cooperating], get[ting] a

reduction, get[ting] out of prison,” and committing another crime. The district

court granted the government’s motion. The court entered judgment in August

2012, and Daniels did not appeal.

      Almost three years later, Daniels filed pro se in federal district court a

motion titled “Defendant’s Motion to Compel Specific Performance

and . . . Compel the Government to File a Rule 35(b) Motion for a Sentence

Reduction.” He contended that the government violated the plea agreement by not

filing a Rule 35(b) motion after he provided more cooperation post-sentencing. He

asked the district court to order the government to file a Rule 35(b) motion for

reduction of sentence based on that alleged cooperation. The court denied his

motion and Daniels appealed.

      We review de novo whether the district court can compel the government to

file a substantial assistance motion. United States v. Forney, 9 F.3d 1492, 1498

(11th Cir. 1993). The government has “a power, not a duty, to file a motion when

a defendant has substantially assisted.” Wade v. United States, 504 U.S. 181, 185,


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112 S. Ct. 1840, 1843 (1992); United States v. McNeese, 547 F.3d 1307, 1308–09

(11th Cir. 2008). A defendant has no right to relief “unless he makes a substantial

threshold showing” that the government’s refusal to file a substantial assistance

motion was based on the breach of a plea agreement or an unconstitutional motive

(such as the defendant’s race or religion). Wade, 504 U.S. at 185–86, 112 S. Ct. at

1843–44 (quotation marks omitted); Forney, 9 F.3d at 1499–1502 & 1499 n.2; see

also United States v. Gonsalves, 121 F.3d 1416, 1419 (11th Cir. 1997).

      The government upheld its end of the plea agreement by filing a § 5K1.1

motion based on its determination that Daniels’ pre-sentencing cooperation

amounted to substantial assistance. Although Daniels’ later cooperation may have

allowed the government to file a Rule 35(b) motion, its failure to do so did not

breach the plea agreement. The government had the sole power to determine

whether Daniels’ cooperation qualified as “substantial assistance.” See Forney, 9

F.3d at 1499 n.2 (“Because the plea agreement left sole discretion to the

government to determine substantial assistance, the government’s decision not to

file a [substantial assistance] motion was unavailable for judicial review . . . absent

an allegation of constitutionally impermissible motive.”) (quotation marks

omitted). Daniels alleged no facts indicating that the government acted with an

unconstitutional motive when it refused to file a Rule 35(b) motion. Because he

failed to make any showing (let alone a substantial one) that the government


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breached the plea agreement or acted with an unconstitutional motive, the district

court properly denied his motion. 1

       AFFIRMED.




       1
          Daniels also appeals the denial of his motion for leave to appeal in forma pauperis. “An
application for leave to proceed in forma pauperis is addressed to the sound discretion of the
[district] court . . . .” Gomez v. United States, 245 F.2d 346, 347 (5th Cir. 1957). Because
Daniels never filed a separate motion in this Court to permit an appeal in forma pauperis, we do
not reach this claim. See id.
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