USA v. Charles Clark, No. 10-14728 (11th Cir. 2011)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT COURT OF APPEALS U.S. ________________________ ELEVENTH CIRCUIT No. 10-14728 Non-Argument Calendar ________________________ OCTOBER 31, 2011 JOHN LEY CLERK D.C. Docket No. 1:91-cr-00655-FAM-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus CHARLES CLARK, a.k.a. Bunky Brown, llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (October 31, 2011) Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges. PER CURIAM: Charles Clark, a federal prisoner proceeding pro se, appeals from the district court s denial of his motion to compel the government to file a motion for a sentencing reduction on his behalf, pursuant to Fed. R. Crim. P. 35(b). Clark argued that, despite rendering substantial assistance to the government, the government refused to file a Rule 35(b) motion as punishment for his earlier decision to proceed to trial. 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, the district court properly denied Clark s motion to compel the government to file a Rule 35(b) motion. This is so because, even assuming that Wade prohibits the government from retaliating against defendants who exercise their constitutional right to proceed to trial, Clark failed to make a substantial 2 showing that the government harbored such a motive. See United States v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009). Accordingly, we affirm. AFFIRMED. 3
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