United States v. Deckard

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-40039
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IKESKI DECKARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:99-CR-32-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Ikeski Deckard, federal prisoner No. 08146-078, appeals the
district court’s denial of his motion for reduction of sentence
based on substantial assistance, purportedly filed pursuant to
FED. R. CRIM. P. 35(b).
A motion for reduction of a defendant’s sentence pursuant to
Rule 35(b) must be filed by the Government. United States v.
Early, 27 F.3d 140, 141 (5th Cir. 1994). The Government’s
refusal to move for a reduction of sentence is unreviewable by
the district court absent a “substantial threshold showing” that
*
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this opinion should not be published and is not precedent except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. 04-40039
-2-
the decision is based on an unconstitutional motive. Wade v.
United States, 504 U.S. 181, 185-86 (1992) (reviewing
Government’s refusal to file a motion pursuant to U.S.S.G.
§ 2K1.1). Deckard does not allege that the Government’s decision
not to file a Rule 35(b) motion in his case was based on an
unconstitutional motive. Deckard’s Rule 35(b) motion was thus
“an unauthorized motion which the district court was without
jurisdiction to entertain.” Early, 27 F.3d at 142.
The judgment of the district court is AFFIRMED.