Case: 17-14055 Date Filed: 04/20/2018 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14055
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-00266-TCB-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN HICKEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 20, 2018)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 17-14055 Date Filed: 04/20/2018 Page: 2 of 5
Kevin Hickey, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion to compel the government to file a Fed. R. Crim. P.
35(b) motion for a sentence reduction due to his post-sentence substantial
assistance. Hickey argues that the government breached its plea agreement when it
did not file a Rule 35 motion as the result of his post-sentencing substantial
assistance. He also argues that the government’s only motivation for failing to file
a motion for further sentence reduction was due to his homosexuality and
Catholicism.
We review questions of the district court’s subject matter jurisdiction de
novo. United States v. Oliver,
148 F.3d 1274, 1275 (11th Cir. 1998). Whether a
district court may grant a downward departure from the guideline range under Rule
35 in the absence of the government’s motion is a question of law reviewed de
novo. See United States v. Forney,
9 F.3d 1492, 1498 (11th Cir. 1993) (reviewing
the government’s decision not to file a § 5K1.1 motion). We review de novo the
question of whether the government has breached a plea agreement. United States
v. Mahique,
150 F.3d 1330, 1332 (11th Cir. 1998). We may affirm a district
court’s decision on grounds that the district court did not address. See Ochran v.
United States,
273 F.3d 1315, 1317-18 (11th Cir. 2001).
Under the Sentencing Guidelines, the government may file a motion
informing the district court of the defendant’s substantial assistance and request a
2
Case: 17-14055 Date Filed: 04/20/2018 Page: 3 of 5
downward departure. See U.S.S.G. § 5K1.1. Under Rule 35(b), “[u]pon the
government’s motion,” the district court may reduce a defendant’s sentence after
he has been sentenced if the defendant provided substantial assistance in
investigating or prosecuting another defendant. Fed. R. Crim. P. 35(b). When the
defendant has provided substantial assistance, the government has the power, but
not the duty, to file a substantial assistance motion. See Wade v. United States,
504
U.S. 181, 185 (1992) (addressing the government’s failure to file a substantial
assistance motion in the § 5K1.1 context); see also United States v. McNeese,
547
F.3d 1307, 1308-09 (11th Cir. 2008) (applying Wade in the Rule 35(b) context).
Federal courts may review the government’s refusal to file a substantial assistance
motion only if the defendant makes a “substantial threshold showing” that the
refusal was based on an unconstitutional motive, such as the defendant’s race or
religion.
Wade, 504 U.S. at 185-86 (quotation marks omitted). However, “[a]
defendant who merely claims to have provided substantial assistance or who makes
only generalized allegations of an improper motive is not entitled to a remedy or to
even an evidentiary hearing.” United States v. Dorsey,
554 F.3d 958, 961 (11th
Cir. 2009). Thus, judicial review generally is appropriate only when “there is an
allegation and a substantial showing that the prosecution refused to file a
substantial assistance motion because of a constitutionally impermissible
motivation.”
Forney, 9 F.3d at 1502.
3
Case: 17-14055 Date Filed: 04/20/2018 Page: 4 of 5
We have explained that “[t]he substantial assistance regime is not a spoils
system designed simply to reward a cooperative defendant; it is designed to benefit
the government in its prosecution efforts.” United States v. Orozco,
160 F.3d
1309, 1316 (11th Cir. 1998) (quotation marks omitted). We have concluded that a
defendant’s argument that the government could not refuse to file a substantial-
assistance motion for “reasons other than the nature of [defendant’s] substantial
assistance” was not supported by Wade, and it was contrary to the “broad grant of
prosecutorial discretion recognized by this court.” United States v. Nealy,
232
F.3d 825, 831 (11th Cir. 2000) (quotation marks omitted) (brackets in original).
Accordingly, even though the government conceded that the defendant’s assistance
had been substantial, we did not review the government’s decision not to file a
motion for a reduction of the defendant’s sentence in the absence of an
unconstitutional motive. See
id.
If the defendant makes a threshold showing that the government’s refusal to
file a substantial assistance motion was a breach of the express terms of the plea
agreement, an evidentiary hearing and relief may be appropriate. See
Forney, 9
F.3d at 1500-03 & nn. 2, 5. However, where a plea agreement requires the
government only to consider filing a Rule 35 motion and places the decision solely
in the hands of the government, the government retains this power and does not
breach the agreement by failing to file such a motion. See
id. at 1499-1500.
4
Case: 17-14055 Date Filed: 04/20/2018 Page: 5 of 5
Accordingly, under these circumstances, the district court has no jurisdiction to
review whether the defendant in fact offered substantial assistance “unless and
until the government makes a . . . motion for downward departure based on
substantial assistance.” See
id. at 1499-1502 & n.2.
The district court lacked jurisdiction to consider Hickey’s motion because
the government did not breach its plea agreement with Hickey and he did not make
a substantial showing that the government’s failure to file a motion was based on
unconstitutional reasons.
AFFIRMED.
5
