USA v. Henry Claude Agnew, No. 09-11162 (11th Cir. 2010)

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-11162 JUNE 11,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 2 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 3 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 4 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). 5

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