United States v. Martini , 27 F. App'x 1 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1123
UNITED STATES,
Appellee,
v.
SOPHIA MARTINI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Sophia Martini on brief pro se.
Jay P. McCloskey, United States Attorney, and Margaret D.
McGaughey, Assistant United States Attorney, on brief for
appellee.
October 19, 2001
Per Curiam. Pro se appellant Sophia Martini
appeals a district court order that denied her motion to
compel the United States Attorney's Office for the District
of Maine to file a motion to reduce her sentence under Fed.
R. Crim. P. 35(b). Having thoroughly reviewed the record
and the parties's briefs on appeal, we affirm the district
court's order.
We agree with the district court's conclusion that
the government could not be compelled to file a Rule 35(b)
motion under the circumstances that are present here.
Appellant has not alleged that the government's decision was
based on an unconstitutional motive, nor that it was
unrelated to a legitimate government end. Accordingly,
judicial review is not available under Wade v. United
States, 504 U.S. 181, 185-86 (1992). And while "the
government must perform in good faith the discretionary
obligations that it undertakes in a plea agreement", see
United States v. Alegria, 192 F.3d 179, 187 (1st Cir. 1999),
this principle does not entitle appellant to enforce alleged
oral promises that contravene her plea agreement, which
makes no mention of Rule 35(b) motions and which provides
that all promises will be "in writing [and] signed by the
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parties." The government's refusal to file a Rule 35(b)
motion is not subject to judicial review under these
circumstances. Cf. United States v. Sandoval, 204 F.3d 283,
286 (1 st Cir. 2000)(holding government's refusal to file
§5K1.1 motion was not subject to judicial review where plea
agreement made no mention of such motions and defendant did
not allege a Wade violation); Alegria, 192 F.3d at 186
(holding defendant could not reasonably rely on alleged pre-
plea oral promise that contravened plea agreement's
integration clause). See also United States v. Bischel, 32
F.3d 259, 264 (7th Cir. 1994); United States v. Ringling, 988
F.2d 504, 507 (4th Cir. 1993)(both declining to enforce
alleged oral promises to file Rule 35(b) motions).
Moreover, even if the government's decision was reviewable,
appellant has not made the "substantial threshold showing"
required to merit further inquiry under Alegria, 192 F.3d at
189 & n.7 (holding conclusory assertions and "sheer
speculation" were insufficient to rebut government's
facially valid reasons for determining defendant had not
rendered substantial assistance).
In view of the foregoing, we need not decide
whether jurisdiction was available under United States v.
Morales, 52 F.3d 7, 8 (1 st Cir. 1995). Accordingly,
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appellant's renewed motion for appointment of counsel is
denied and the judgment of the district court is affirmed.
See Local Rule 27(c).
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