                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-12532         ELEVENTH CIRCUIT
                                   Non-Argument Calendar       MARCH 2, 2011
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 2:02-cr-00072-JES-SPC-3

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

FRANKIE LEE SMITH,

lllllllllllllllllllll                                          Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Middle District of Florida
                                ________________________

                                       (March 2, 2011)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

         Frankie L. Smith appeals the district court’s denial of his pro se petition for

a writ of mandamus seeking to compel the government to file a U.S.S.G. § 5K1.1
motion to reduce his sentence. Because we conclude that the district court did not

abuse its discretion, we affirm.

      Pursuant to a written plea agreement, Smith pleaded guilty to one count of

conspiracy to possess with intent to distribute fifty grams or more of crack

cocaine. The agreement included a provision that the government would consider

a sentencing reduction based on Smith’s substantial assistance to authorities in the

prosecution of others. Specifically, the provision stated,

      If [Smith’s] cooperation is completed prior to sentencing, the
      government agrees to consider whether such cooperation qualifies as
      ‘substantial assistance’ . . . warranting the filing of a motion at the
      time of sentencing recommending . . . a downward departure from the
      applicable guideline range pursuant to USSG §5K1.1 . . . . If
      [Smith’s] cooperation is completed subsequent to sentencing, the
      government agrees to consider whether such cooperation qualifies as
      ‘substantial assistance’. . . warranting the filing of a motion for a
      reduction of sentence within one year of the imposition of sentence
      pursuant to Fed. R. Crim. P. 35(b). In any case, the defendant
      understands that the determination as to whether ‘substantial
      assistance’ has been provided or what type of motion related thereto
      will be filed, if any, rests solely with the United States Attorney for
      the Middle District of Florida, and the defendant agrees that
      defendant cannot and will not challenge that determination, whether
      by appeal, collateral attack, or otherwise.


At the change-of-plea hearing, Smith confirmed that there were no other promises

made by the government. The government then informed the court that it intended

to file a “5K1” based on Smith’s substantial assistance.

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      At sentencing, however, the government stated that Smith’s cooperation

was not complete and that it intended to file for a reduction under Rule 35 for his

cooperation at a later date. Smith was sentenced to 262 months’ imprisonment,

which was later reduced to 214 months’ imprisonment based on the Rule 35

motion.

      After filing several motions seeking a reduction in his sentence, Smith filed

the instant petition for a writ of mandamus to compel the government to file the

§ 5K1.1 motion. The district court denied the petition, finding that Smith had not

shown he was entitled to relief.

      We review the district court’s refusal to issue a writ of mandamus for an

abuse of discretion. See Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1055

(11th Cir. 2008). “Mandamus is an extraordinary remedy, and it is appropriate

only when no other adequate means are available to remedy a clear usurpation of

power or abuse of discretion by the district court.” Id. (quotation omitted).

Further, a petitioner must prove that his “right to the issuance of the writ is clear

and indisputable.” Id. (quotation omitted). Thus, we have articulated three

requirements for the issuance of a writ of mandamus: (1) the petitioner has a clear

right to the relief requested; (2) the defendant has a clear duty to act; and (3) no

other adequate remedy is available. Cash v. Barnhart, 327 F.3d 1252, 1258 (11th

                                           3
Cir. 2003).

       In this case, the district court did not abuse its discretion.1 Smith did not

have a clear right to the relief requested because his plea agreement provided only

that the government would consider filing either a § 5K1.1 motion or a Rule 35

motion depending on when Smith’s cooperation was complete. Because Smith’s

cooperation was not completed until after the sentencing proceeding, under the

terms of the plea agreement Smith was not entitled to a reduction under § 5K1.1.

       Second, the government did not have a clear duty to act. Although the

prosecutor indicated his intent to file a § 5K1.1 motion at Smith’s change-of-plea

hearing, when the time came at sentencing for such a motion, Smith’s cooperation

was not complete. Thus, the government relied on the explicit language of the

plea agreement in later filing a Rule 35 motion to reduce Smith’s sentence once

Smith’s cooperation was completed after sentencing.

       Third, Smith had other adequate remedies to seek redress. Smith concedes

that he has raised his claim in numerous other filings, indicating the availability of

other remedies. That Smith could not establish his eligibility for different forms of



       1
           Although we address the merits of the request for mandamus relief here, we note that
the district court did not abuse its discretion because, as part of his plea agreement, Smith waived
the right to bring any challenge to the government’s decision whether to file a motion for a
reduction in sentence based on substantial assistance.

                                                 4
relief does not establish that those remedies were inadequate, nor does it entitle

him to the extraordinary remedy of a writ of mandamus.

      AFFIRMED.




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