United States v. Henry Austin Duncan

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 5, 2008
No. 07-15890 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00015-CR-01-HLM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY AUSTIN DUNCAN,
a.k.a. Hank Duncan,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 5, 2008)
Before ANDERSON, CARNES and HULL, Circuit Judges.
PER CURIAM:
Henry Duncan, proceeding pro se, appeals the district court’s denial of his
petition for a writ of mandamus to compel the government to file a Federal Rule of
Criminal Procedure 35(b) motion to reduce his sentence based on his substantial
assistance in investigating or prosecuting others.
I.
In 2005 Henry Duncan entered into a plea agreement with the government.
The terms of the agreement were that Duncan would plead guilty to one count of
the indictment against him, cooperate fully with the government, and waive some
of his rights to directly appeal or collaterally attack his sentence. In exchange, the
government agreed to dismiss the remaining counts in the indictment and make
certain recommendations at his sentence hearing. Additionally, the government
agreed that, if Duncan’s cooperation was complete at the time of sentencing and
constituted “substantial assistance,” the government would move for a downward
departure under United States Sentencing Guidelines § 5K1.1. If Duncan’s
cooperation was not complete until after sentencing and was “substantial
assistance,” then the government agreed to “consider whether to file a [Rule 35(b)]
motion for reduction of sentence.” The plea agreement specified that “the
determination as to whether [Duncan] ha[d] provided ‘substantial assistance’
rest[ed] solely with the government.”
The district court accepted Duncan’s guilty plea and adopted the plea
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agreement. At sentencing, the government made the recommendations listed in the
plea agreement and moved for a § 5K1.1 substantial assistance departure, which
the court granted. The court then sentenced Duncan to 135 months imprisonment
and ten years of supervised release. Duncan did not appeal that sentence.
On September 6, 2007, Duncan, proceeding pro se, filed a petition for a writ
of mandamus, asking the court to order the government to make a Rule 35(b)
motion on his behalf. He argued that the plea agreement with the government
required it to file a Rule 35(b) motion because he had continued cooperating after
being sentenced. He also requested, if necessary, an evidentiary hearing on
whether his continued cooperation was substantial assistance. The district court
denied his petition, and Duncan appealed.
II.
Duncan first contends that the district court erred in denying his petition for
a writ of mandamus because the government violated an enforceable plea
agreement by failing to make a Rule 35(b) motion on his behalf.1 “Mandamus is
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The government contends that Duncan’s complaint should be considered a motion to
vacate, correct, or amend a sentence under 28 U.S.C. § 2255, not a petition for a writ of
mandamus. However, “[t]he plaintiff is the master of the complaint,” and Duncan clearly
specified that he was seeking a writ of mandamus. United States v. Jones, 125 F.3d 1418, 1428
(11th Cir. 1997). While we can “sometimes ignore the legal label that a pro se litigant attaches
to a motion . . . to create a better correspondence between the substance of a pro se motion’s
claim and its underlying legal basis,” Castro v. United States, 540 U.S. 375, 381–82, 124 S. Ct.
786, 791–92 (2003), a writ of mandamus is an established way of enforcing a plea agreement,
see, e.g., In re Arnett, 804 F.2d 1200 (11th Cir. 1986). Therefore, we will treat Duncan’s
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proper if (1) the Plaintiffs can show a clear right to the relief sought; (2) the
Defendants have a clear, non-discretionary duty to act; and (3) no other remedy is
available.” Nyaga v. Ashcroft, 323 F.3d 906, 911 (11th Cir. 2003). Because
Duncan cannot show that the government has “a clear, non-discretionary duty to
act,” he is not entitled to a writ of mandamus.
The plea agreement between Duncan and the government stated that, if the
government determined that Duncan had provided substantial assistance, it would
make either a U.S.S.G. § 5K1.1 motion or a Rule 35(b) motion, depending on
when Duncan’s cooperation was complete. The government considered Duncan’s
cooperation to be complete at sentencing and accordingly made a §5K1.1 motion at
Duncan’s sentence hearing. This is all that the plea agreement required, and the
government complied with it. Further, even if Duncan gave substantial assistance
after sentencing, the governmnet’s only obligation was to “consider whether to
file” a Rule 35(b) motion. The plea agreement did not impose a “clear, non-
discretionary duty” on the government to make a Rule 35(b) motion after it had
already made a § 5K1.1 motion on Duncan’s behalf.
There are some times when it is appropriate for a court to review the
government’s decision not to make a Rule 35(b) motion even absent a plea
petition for a writ of mandamus as exactly that.
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agreement, but those are limited to “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.” United States v. Forney, 9 F.3d
1492, 1502 (11th Cir. 1993). Duncan has not even alleged that the government had
an unconstitutional motivation, so that exception is inapplicable here.
Duncan also contends that the district court should have at least held an
evidentiary hearing to determine if the assistance he gave the government after he
was sentenced was “substantial.” The “decision to grant an evidentiary hearing [is]
generally left to the sound discretion of district courts.” Schriro v. Landrigan, ___
U.S. ___, ___, 127 S. Ct. 1933, 1939 (2007). We review that decision only to
determine whether the district court abused its discretion. United States v. Mena,
863 F.2d 1522, 1528 (11th Cir. 1989). The absence of a clear, non-discretionary
duty on the government to make a Rule 35(b) motion on Duncan’s behalf prevents
him from obtaining a writ of mandamus, which means that proof of his substantial
assistance could not have changed the outcome of his petition. Therefore, the
district court did not abuse its discretion when it denied him an evidentiary
hearing.
AFFIRMED.
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