United States v. Kenneth Francis Collins , 524 F. App'x 573 ( 2013 )

Case: 12-14140 Date Filed: 07/31/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14140
Non-Argument Calendar
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D.C. Docket No. 3:01-cr-00066-RV-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH FRANCIS COLLINS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(July 31, 2013)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
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Kenneth Collins, proceeding pro se and filing in forma pauperis, appeals the
denial of his petition for writ of mandamus to compel the government to file a
Federal Rule of Criminal Procedure 35(b) motion in return for substantial
assistance he provided in the investigation and prosecution of several individuals.
Collins argues that the district court erred in determining it did not have
jurisdiction to consider his motion, the government waived its discretion in filing
the Rule 35(b) motion when a DEA agent made an oral promise to file the motion
for him, and the government is bound by the oral contract created by that DEA
agent.
Under Federal Rule of Criminal Procedure 35(b), the district court may
reduce a defendant’s sentence if “the defendant, after sentencing, provided
substantial assistance in investigating or prosecuting another person” and the
government files a motion requesting such relief. Fed. R. Crim. P. 35(b). 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, 112 S. Ct. 1840, 1843 (1992)
(discussing prosecutorial discretion and substantial assistance motions under 18
U.S.C. § 3553(e)) and U.S.S.G. § 5K1.1; United States v. McNeese, 547 F.3d 1307,
1308 (11th Cir. 2008) (per curiam) (applying Wade to a Rule 35(b) motion). The
government enjoys “virtually unfettered discretion” in deciding whether to file a
Rule 35 motion. Murphy v. United States, 634 F.3d 1303, 1313 (11th Cir. 2011).
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The Supreme Court’s decision in Wade—not principles of contract law—controls
review of governmental discretion in filing sentence reduction motions. United
States v. Forney, 9 F.3d 1492, 1503 n.3 (11th Cir. 1993).
The district court may only review the government’s refusal to file if the
defendant first makes “an allegation and a substantial showing” that the refusal
was based upon an unconstitutional motive, such as race or religion. United States
v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009) (emphasis in original) (internal
quotation marks omitted) (citing Forney, 9 F.3d at 1502). “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.” Id.
Under the All Writs Act, federal courts may issue “all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C § 1651. A district court has original jurisdiction to
“compel an officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus is a drastic
remedy, to be invoked only in extraordinary situations. In re BellSouth Corp., 334
F.3d 941, 953 (11th Cir. 2003).
We review a district court’s denial of a motion for a writ of mandamus for
abuse of discretion. In re Stewart, 641 F.3d 1271, 1275 (11th Cir. 2011) (per
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curiam). A writ of mandamus “is only appropriate when: (1) the plaintiff 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 Cir. 2003) (per curiam) (internal quotation marks and alteration
omitted). Said differently, a plaintiff must show that “he has exhausted all other
avenues of relief” and “the defendant owes him a clear nondiscretionary duty.” Id.
(internal quotation marks omitted). The party seeking the writ of mandamus must
establish that his or her right to the writ’s issuance is “clear and indisputable.” Will
v. United States, 389 U.S. 90, 96, 88 S. Ct. 269, 274 (1967) (internal quotation
marks omitted).
Collins has failed to make the required threshold showing that the
government acted with an unconstitutional motive when it refused to file a Rule
35(b) motion on his behalf. Accordingly, the district court did not abuse its
discretion in denying Collins’s petition.
AFFIRMED.
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