United States v. Edward Eugene Marshall ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 05, 2006
No. 05-15821 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-14049-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD EUGENE MARSHALL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 5, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Edward Marshall, a federal prisoner, appeals the district court’s
order denying his motion to compel the government to file a Fed. R. Crim. P. 35(b)
motion for a reduction in sentence. Marshall argues that because he provided
substantial assistance to the government and the government had no rational reason
not to file a Rule 35(b) motion, he is entitled to an evidentiary hearing to establish
his entitlement to a Rule 35(b) motion for a reduction in sentence.
Whether the government can be compelled to file a substantial assistance
motion is a question of law that we review de novo. See United States v. Forney, 9
F.3d 1492, 1498 (11th Cir. 1993). A district court’s decision not to hold an
evidentiary hearing is reviewed for an abuse of discretion. United States v.
Winfield, 960 F.2d 970, 972 (11th Cir. 1992).
Federal Rule of Criminal Procedure 35(b)(2) provides that, after a sentence
has been imposed, upon motion of the government made more than one year after
sentencing, a district court may reduce a defendant's sentence based on substantial
assistance if the defendant's substantial assistance involved information not known
by the defendant, not useful to the government, or the usefulness of which was not
reasonably anticipated by the defendant, until more than one year after sentencing.
Fed. R. Crim. P. 35(b). The government has “a power, not a duty, to file a motion
when a defendant has substantially assisted.” Forney, 9 F.3d at 1500 (quoting
Wade v. United States, 504 U.S. 181, 185, 112 S. Ct. 1840, 1843, 118 L. E. 2d 524
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(1992) (U.S.S.G. § 5K1.1 substantial assistance context). We limit our “review of
the government's refusal to file substantial assistance motions to claims of
unconstitutional motive.” United States v. Nealy, 232 F.3d 825, 831 (11th Cir.
2000). A defendant who merely claims to have provided substantial assistance or
who makes only generalized allegations of improper motive is not entitled to a
remedy or even to discovery or an evidentiary hearing. Wade, 504 U.S. at 186, 112
S. Ct. at 1844. Thus, judicial review is generally 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.
The record demonstrates that Marshall alleged only bad faith as the
motivation for the government’s refusal to file a Rule 35(b) motion to reduce his
sentence. Marshall made neither an allegation nor a substantial showing of a
constitutionally impermissible motivation. Therefore, the district court was
without authority to review the government’s exercise of prosecutorial discretion,
and Marshall was entitled to neither an order to compel nor an evidentiary hearing.
AFFIRMED.
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