United States v. Calvin Allen ( 2019 )

Case: 19-60019 Document: 00515067839 Page: 1 Date Filed: 08/07/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-60019 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
August 7, 2019
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
CALVIN ALLEN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:15-CR-36-1
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Calvin Allen, federal prisoner # 18222-043, is serving a 188-month prison
sentence following his 2015 guilty-plea conviction for possessing with the
intent to distribute a controlled substance. Allen appeals from the district
court’s denial of his pro se motion requesting a reduction of sentence pursuant
to Federal Rule of Criminal Procedure 35(b). The Government has filed a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-60019 Document: 00515067839 Page: 2 Date Filed: 08/07/2019
No. 19-60019
motion to dismiss the appeal or, in the alternative, for summary affirmance in
light of Wade v. United States, 504 U.S. 181, 185-86 (1992).
This court reviews “de novo whether the district court had jurisdiction to
resentence.” United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997).
Resentencing under Rule 35(b) “is permitted only on the Government’s
motion.” United States v. Early, 27 F.3d 140, 141 (5th Cir. 1994). Thus, to the
extent that Allen’s motion sought resentencing pursuant to Rule 35(b), the
motion “was unauthorized and without a jurisdictional basis.” Id.
To the extent that Allen’s motion sought review of the Government’s
failure to file its own Rule 35(b) motion, the district court likewise had no
authority to grant relief. “The government’s refusal to file a Rule 35(b) motion
is not reviewable unless that refusal is based on an unconstitutional motive,”
as discussed in Wade, 504 U.S. at 185-86, or “the government has ‘bargain[ed]
away’ its discretion.” United States v. Grant, 493 F.3d 464, 467 (5th Cir. 2007)
(quoting United States v. Price, 95 F.3d 364, 368 (5th Cir. 1996)). Allen has
not shown that either circumstance was present here.
In sum, Allen’s Rule 35(b) motion was unauthorized, and the district
court lacked jurisdiction to consider it or to review the Government’s failure to
file its own Rule 35(b) motion. See Grant, 493 F.3d at 467; Early, 27 F.3d at
141. The judgment is AFFIRMED on that basis. The Government’s motion to
dismiss the appeal or, alternatively, for summary affirmance is DENIED as
moot.
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