United States v. Parra-Mercado , 435 F. App'x 812 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
JULY 20, 2011
No. 10-15547 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 0:07-cr-60210-WPD-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
ORLANDO PARRA-MERCADO,
lllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 20, 2011)
Before BARKETT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Orlando Parra-Mercado, a federal prisoner convicted of a drug trafficking
offense, appeals from the district court’s denial of his motion for specific
performance of his plea agreement. In his motion, Parra-Mercado requested the
court to compel the government to file a motion for a sentencing reduction based
on his substantial assistance, pursuant to Fed. R. Crim. P. 35(b), even though the
government retained the “sole and unreviewable” discretion whether to do so
under the plea agreement.
We review de novo whether the district court can compel the government to
file a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,
1498 (11th Cir. 1993). Generally, the government has the power, but not the duty,
to file a motion to reduce sentence when a defendant has provided substantial
assistance to the government. Wade v. United States, 504 U.S. 181, 185 (1992);
United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008). The
government’s refusal to file a Rule 35(b) motion can be reviewed by the district
court, and the district court can grant relief, only if it finds that the government’s
refusal was based on an unconstitutional motive, such as race or religion. Wade,
504 U.S. at 185-86.
In this case, Parra-Mercado did not allege that the government’s failure to
file a Rule 35(b) motion was based on his race or religion. Rather, he alleged that
the government failed to do so in order to pressure his brother to testify in an
unrelated case, which he asserts is a constitutionally-impermissible motive. Even
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assuming arguendo that such a motive is reviewable under Wade, Parra-Mercado
did no more than speculate in his motion that the government “may” have
possessed such a motive. Thus, he has failed to make the requisite “substantial
showing” in this regard. Forney, 9 F.3d at 1502. Accordingly, the district court
did not abuse its discretion by denying Parra-Mercado an evidentiary hearing, and
we affirm.
AFFIRMED.
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