United States v. Henry Claude Agnew

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11162 ELEVENTH CIRCUIT
JUNE 11, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 03-20226-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY CLAUDE AGNEW,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 11, 2010)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Henry Agnew appeals the district court’s denial of his pro se motion to
compel the government to file a motion to reduce his sentence pursuant to
Fed.R.Crim.P. 35(b). No reversible error has been shown; we affirm.
Agnew was indicted for drug trafficking in 2003. As part of a plea
agreement, Agnew pleaded guilty to one count; he agreed to cooperate with the
government. On its part, the government reserved the right to evaluate Agnew’s
cooperation and to share its evaluation with the court at the time of sentencing.
The plea agreement provided that the government might, at or before sentencing,
make a motion for a downward departure or, post-sentencing, make a Rule 35
motion for reduction of sentence, “[i]f in the sole and unreviewable judgment” of
the government, Agnew’s substantial assistance so warranted. The plea agreement
provided further:
The defendant acknowledges and agrees, however, that
nothing in this Agreement may be construed to require
this Office to file such a motion and that this Office’s
assessment of the nature, value, truthfulness,
completeness, and accuracy of the defendant’s
cooperation shall be binding on the defendant.
At sentencing, the government requested a sentence at the low end of the
262 to 327-month guidelines range; it stated that it would consider filing a Rule 35
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motion in the future. The court imposed a 262-month sentence.
In November 2008, Agnew filed a motion to compel the government to file a
motion to reduce sentence. According to Agnew, he provided -- at some risk to
himself and his family -- substantial assistance to the government and that
assistance was critical to the conviction of a drug kingpin. The government
responded that it had considered Agnew’s cooperation and determined that a
sentence reduction was not warranted. The government argued that the district
court had no jurisdiction to grant Agnew’s motion: Agnew had neither alleged nor
shown that the government’s failure to file a substantial assistance motion was the
product of a constitutionally impermissible motive. Because no constitutionally
impermissible motive was alleged, the district court denied Agnew’s motion.
We review de novo a district court’s authority under Fed.R.Crim.P. 35(b) to
reduce a sentence in the absence of a government motion. See United States v.
Forney, 9 F.3d 1492, 1498 (11th Cir. 1993) (considering government refusal to file
a U.S.S.G. § 5K1.1 substantial assistance motion). Because Rule 35(b) provides
the government with “‘a power, not a duty, to file a motion when a defendant has
substantially assisted,’” United States v. Forney, 9 F.3d 1492, 1500 (11th Cir.1993)
(quoting Wade v. United States, 112 S.Ct. 1840, 1843 (1992)), “federal district
courts have authority to review a prosecutor's refusal to file a substantial-assistance
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motion and to grant a remedy [only] if they find that the refusal was based on an
unconstitutional motive,” such as “race or religion.” Wade, 112 S.Ct. at 1843-44.
See United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008) (applying
Wade limitations on judicial review to Rule 35(b) substantial assistance motions).
And, as we have said,
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. Thus, judicial
review is 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.
United States v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009) (internal citation and
quotation omitted).
On appeal Agnew questions whether the government’s refusal to file a
substantial assistance motion on his behalf was because he “was ‘Black with Dred
Locks’ [sic]? Was this done because ‘Dred Locks [sic] is not a style, but a
Religious Belief?” We note that this suggestion of unconstitutional motive was not
advanced before the district court. And, in any event, district court authority to
review a government refusal to file a substantial assistance motion is triggered only
when the allegation is supported by a substantial showing of unconstitutional
motive. “[A] claim that a defendant merely provided substantial assistance will not
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entitle a defendant to a remedy or even to discovery or an evidentiary hearing. Nor
would additional but generalized allegations of improper motive.” Wade, 112
S.Ct. at 1844. Agnew’s assertions that he provided substantial assistance --
together only with speculative and generalized suggestions of unconstitutional
motivation -- support no review of the government’s discretionary decision to
make no Rule 35(b) motion.*
AFFIRMED.
*
Agnew’s related argument that the government violated his plea agreement also is
without merit. The plea agreement obligated the government only to consider filing a substantial
assistance motion on Agnew’s behalf. Because nothing in Agnew’s plea agreement required the
government to request a sentence reduction, Agnew fails to show that the government breached
its obligations under the plea agreement. See Forney, 9 F.3d at 1499-1500 (government’s failure
to make a section 5K1.1 motion was not a breach of plea agreement that provided that
government would “consider” whether defendant’s assistance qualified as substantial
assistance).
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