United States v. Hollis ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-41364
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROOSEVELT HOLLIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:95-CR-105-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Roosevelt Hollis, federal prisoner # 10019-078, appeals the
district court’s denial of his post-conviction motion for a
sentence reduction relating to his 1995 drug-trafficking
convictions. Hollis asserts that he is entitled to a downward
departure based on his “substantial assistance” in the
prosecution of a separate case. Citing principles of contract
law, Hollis contends that the Government was bound to honor its
alleged promise to move for a sentence reduction based on/in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-41364
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exchange for Hollis’ grand jury testimony. Hollis asserts that
the Government’s unwillingness to move for a sentence reduction
stemmed from Hollis’ refusal to oblige subsequent requests for
his assistance in other criminal investigations.
Federal Rule of Criminal Procedure 35(b) provides that the
district court, on motion of the Government, may reduce a
sentence to reflect a defendant’s subsequent, substantial
assistance in the investigation or prosecution of another person
who has committed an offense. By its plain language, Rule 35(b)
authorizes the Government, not the defendant, to file a motion
seeking a reduced sentence. See United States v. Early, 27 F.3d
140, 141 (5th Cir. 1994). When the Government agrees to file a
substantial assistance motion, the Government’s refusal to file
the motion is not reviewable unless that refusal is based on an
unconstitutional motive such as race or religion. Wade v. United
States, 504 U.S. 181, 185 (1992); United States v. Sneed, 63 F.3d
381, 389 n.6 (5th Cir. 1995). The mere claim that a defendant
provided substantial assistance does not warrant a remedy, and
general allegations of improper motive are insufficient to
establish a constitutional violation. Wade, 504 U.S. at 186.
Hollis’ arguments in support of his motion for downward
departure are based on little more than the unsubstantiated claim
that he provided substantial assistance in the investigation of a
separate criminal case. Hollis fails to demonstrate that the
Government agreed to file a substantial assistance motion in
No. 02-41364
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exchange for his grand jury testimony. Even if such an agreement
did exist, the Government’s failure to file the motion is not
reviewable since Hollis’ general allegations of improper motive
are insufficient establish a constitutional violation. Wade, 504
U.S. at 186.
AFFIRMED.