United States v. Cesar Augusto Marin-Martinez , 361 F. App'x 58 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11371 ELEVENTH CIRCUIT
JANUARY 13, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 00-00432-CR-T-30-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR AUGUSTO MARIN-MARTINEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 13, 2010)
Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
The United States arrested Petitioner for possession and conspiracy to
distribute five or more kilograms of cocaine. In exchange for a reduced sentence,
Petitioner says he provided the government with information for use in related
investigations. Petitioner filed a motion asking the District Court to compel the
government to file a motion to reduce Petitioner's sentence under Federal Rule of
Criminal Procedure 35(b). The District Court denied Petitioner's motion without
an evidentiary hearing. We see no reversible error; we affirm.
In 2001, Petitioner was convicted, and the District Court sentenced
Petitioner to 360 months imprisonment. In 2009, Petitioner filed a motion with the
District Court to compel the government to file a motion to reduce his sentence
under Rule 35(b). Although a Rule 35(b) motion is discretionary, Petitioner asked
the District Court to review why the government had not lived up to an alleged
deal to file the motion. Petitioner suggested that the reason was to punish
Petitioner for demanding a jury trial: an unconstitutional motive. The District
Court denied Petitioner's motion.
We review a district court's denial of a motion to compel the government to
file a Rule 35(b) motion (as well as its decision not to hold an evidentiary hearing
on the motion) for an abuse of discretion. United States v. Winfield, 960 F.2d 970,
972 (11th Cir. 1992).
2
District courts have authority to review the government's refusal to file a
Rule 35(b) motion and to grant a remedy if the refusal was based on an
unconstitutional motive. Wade v. United States, 112 S. Ct. 1840, 1843-44 (1992).
Just because a defendant provides substantial assistance, the defendant is not
entitled to a remedy, discovery, or even an evidentiary hearing. Id. at 1844.
Generalized allegations of improper governmental motive are insufficient;
Defendant must make a "substantial threshold showing" before a district court
must grant an evidentiary hearing. Id.Petitioner presented evidence directed towards the existence of an agreement
with the government.1 Petitioner did not present evidence directed towards the
reason the government violated the agreement, if the agreement ever existed.
Because Petitioner failed to make a substantial threshold showing that the
government had an unconstitutional motive for not filing a Rule 35(b) motion,
Petitioner is unentitled to an evidentiary hearing, discovery, or remedy. The
District Court did not abuse its discretion in denying Petitioner's motion without an
evidentiary hearing.
AFFIRMED.
1
The government says that the evidence that Petitioner attached as appendices to his brief
were not part of the district court record, and it is therefore improper for this court to consider
them. Given that the appendices do not go to Petitioner's required showing, we need not reach
their legitimacy.
3