United States v. Stanley Jennings , 147 F. App'x 148 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_________________________ September 2, 2005
THOMAS K. KAHN
No. 03-16498 CLERK
Non-Argument Calendar
_________________________
D.C. Docket No. 91-14013-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY JENNINGS,
a.k.a. Rickey,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Florida
__________________________
(September 2, 2005)
Before EDMONDSON, Chief Judge, ANDERSON and CARNES, Circuit Judges.
PER CURIAM:
Defendant-Appellant Stanley Jennings appeals the district court’s denial on
jurisdictional grounds of his pro se motions for (i) specific performance to require
the government to file a Fed.R.Crim.P. 35(b) motion for reduction of sentence;
and (ii) sentence reduction pursuant to U.S.S.G. § 5K2.0. No reversible error has
been shown; we affirm.
At the crux of Jennings appeal is his claim that he provided substantial
assistance to the government, and that his assistance contributed to the prosecution
and conviction of two drug dealers in 2000. Jennings contends that the Assistant
United States Attorney (“AUSA”) for the Northern District of Georgia acted in
“bad faith” when she promised -- but failed -- to send a letter of recommendation
in support of a sentence reduction on Jenning’s behalf to the AUSA for the
Southern District of Florida.
“Determining whether a motion for reduction of sentence will be filed is
reserved to the government, which must ascertain what information the defendant
has as well as the truthfulness and usefulness of this information before deciding
whether it is appropriate to file a section 5K1.1 motion at sentencing or a Rule
35(b) motion for a convicted defendant thereafter.” United States v. Orozco, 160
F.3d 1309, 1315-16 (11th Cir. 1998). Judicial review of a prosecutor’s refusal to
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file a substantial assistance motion is unavailable except when the refusal is based
on an unconstitutional motive. See Wade v. United States, 112 S. Ct. 1840. 1843-
44 (1992) (“we hold that federal district courts have authority to review a
prosecutor’s refusal to file a substantial assistance motion and to grant a remedy if
they find that the refusal was based on an unconstitutional motive.). The exercise
of prosecutorial discretion is immunized from judicial review except “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, such as race or religion.” United States v. Forney, 9 F.3d 1492,
1502 (11th Cir. 1993)(emphasis in original) (discussing a prosecutor’s refusal to
file a motion pursuant to U.S.S.G. § 5K1.1).
Jennings alleges no unconstitutional motive underpinning the government’s
failure to file a substantial assistance motion. Absent such an allegation (which, as
we have noted, needs to be sufficiently supported), the district court denied
properly Jenning’s motion to require the government to file a Rule 35(b) motion
for sentence reduction.
Jennings makes no claim of error in his appellate briefs stemming from the
district court’s jurisdictionally premised denial of Appellant’s motion for a
downward departure under U.S.S.G. § 5K2.0 for post-conviction rehabilitation.
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Issues not raised in the appellant’s brief are deemed waived. See United States v.
Ford, 270 F.3d 1346, 1347 (11th Cir. 2001). And, in any event, the Sentencing
Guidelines provide for no downward departure based upon post-sentence
rehabilitation when resentencing for an offense. See U.S.S.G. § 5K2.19.*
AFFIRMED.
*
As the government points out, the only statutory basis for modification of an imposed term of
imprisonment is 18 U.S.C. § 3582(c); Appellant points to -- and we see -- satisfaction of no basis
under§3582(c) which could support district court authority to reduce Appellant’s sentence.
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