*

 After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 21, 2007*

Decided February 26, 2007

Before

 Hon. FRANK H. EASTERBROOK, Chief Judge

 Hon. RICHARD A. POSNER, Circuit Judge

 Hon. TERENCE T. EVANS, Circuit Judge

No. 06-2403 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TONEY D. WHITEHEAD,

Defendant-Appellant.

Appeal from the United States

District Court for the Southern

District of Illinois

No. 96-30065-WDS

William D. Stiehl, 

Judge.

O R D E R

This appeal concerns the timeliness of Toney Whitehead’s attempt to secure a

sentence reduction under Federal Rule of Criminal Procedure 35(b). Whitehead

pleaded guilty to nine separate drug and gun charges and was sentenced to 322

months’ imprisonment in 1997. We dismissed his direct appeal and granted his

counsel’s motion to withdraw under Anders v. California, 386 U.S. 738 (1967). See

United States v. Whitehead, No. 97-2807, 1998 U.S. App. LEXIS 5561 (7th Cir.

March 12, 1998) (unpublished). 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 06-2403 Page

2

More than eight years after sentencing, in 2005 Whitehead, pro se, asked the

district court to compel the government to file a Rule 35 motion for a reduction of

sentence based on his substantial assistance to prosecutors. In his sworn affidavit

accompanying the motion, Whitehead says that “[a]pproximately one week after his

arrest” he provided “substantial assistance to authorities by conducting a proffer

and debriefing in which he implicated a number of other substantial narcotics

traffickers in the East St. Louis metropolitan area.” Whitehead swears that the

government promised him a sentence reduction based on his assistance, and he says

the government reneged on its agreement “without just cause.” The district court

denied Whitehead’s motion because he filed it more than one year after sentencing

and no exceptions to the one-year bar applied. See Fed. R. Crim. P. 35(b).

Whitehead now argues that it would be unjust to deny him relief simply

because the government neglected to timely file a Rule 35 motion. He says the

district court should have ignored the timing issue and invoked its inherent power

to enforce contracts. The government responds with a motion to dismiss in which it

contends that the time constraints in Rule 35 preclude both the district court and

this court from reaching the merits of Whitehead’s motion. 

Rule 35(b) authorizes a district court to reduce a defendant’s sentence to

reward him for his substantial assistance only “[u]pon the government’s motion.” 

Fed. R. Crim. P. 35(b). Normally the decision to file a Rule 35(b) motion rests

entirely in the prosecutor’s discretion, and a district court would not be empowered,

based on Rule 35(b) alone, to grant a Rule 35(b) motion brought by a defendant. 

Nevertheless, there are enforceable limitations to a prosecutor’s discretion,

including when it has been bargained away in a plea agreement. See Santobello v.

New York, 404 U.S. 257, 262-63 (1977); United States v. Lezine, 166 F.3d 895, 903

(7th Cir. 1999); United States v. Smith, 953 F.2d 1060, 1065-66 (7th Cir. 1992). 

And, as the Supreme Court explained in Wade v. United States, 504 U.S. 181, 186

(1992), “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.” Id. at 185-86. While Wade involved a

prosecutor’s refusal to file a U.S.S.G. § 5K1.1 motion at sentencing, we and our

sister circuits have treated § 5K1.1 and Rule 35(b) alike. See United States v. Doe,

940 F.2d 199, 203 n.7 (7th Cir. 1991) (citing cases); United States v. Moran, 325

F.3d 790, 793 (6th Cir. 2003); United States v. Marks, 244 F.3d 971, 973 n.1 (8th

Cir. 2001); United States v. Gangi, 45 F.3d 28, 30-31 (2d Cir. 1995) (citing cases). 

And we have applied Wade to review a district court’s denial of a motion to compel a

Rule 35(b) motion. See United States v. Wilson, 390 F.3d 1003 (7th Cir. 2004); see

also Marks, 244 F.3d at 975. 
No. 06-2403 Page

3

The problem for Whitehead is that under this circuit’s precedent, the district

court lacked jurisdiction to grant the ultimate remedy Whitehead seeks. Rule 35(b)

authorizes the district court to reduce a defendant’s sentence only upon the

government’s motion made within one year of sentencing (unless an exception

applies). We explained in United States v. McDowell, 117 F.3d 974, 980 (7th Cir.

1992), that the rule’s time limits are jurisdictional. Thus, even if everything

Whitehead says is true, the district court was not empowered to grant his Rule

35(b) motion because it is more than seven years late. (Whitehead did not ask the

government to file a “placeholder” motion within the one-year deadline to secure the

district court’s jurisdiction, as is routine. See, e.g., Wilson, 390 F.3d at 1007; United

States v. Hartwell, 448 F.3d 707, 718 (4th Cir. 2006).) Furthermore, even if after

Eberhart v. United States, 546 U.S. 12 (2005), the Rule 35(b) time limits are not

strictly “jurisdictional,” the government has asserted both here and in the district

court the defense of untimeliness, so it is proper to affirm the district court’s ruling

on that basis.

Whitehead’s only hope for relief under Rule 35(b) is an exception to the oneyear deadline created by the December 2002 amendment to Rule 35 for information

supplied to the government that he did not know of, or the government could not

use, until more than a year after sentencing. Fed. R. Crim. P. 35(b)(2). Although

one circuit has found that the amendment applies to any Rule 35(b) motion filed

after December 1, 2002, regardless of when the defendant was originally sentenced,

see United States v. Moreno, 364 F.3d 1232, 1234-35 (11th Cir. 2004), Whitehead

has forfeited any such argument here because his submissions to the district court

do not even hint at the possibility that Rule 35(b)(2) applies. Indeed, his

submissions foreclose Rule 35(b)(2) relief because they refer only to information

that he knew and provided to the government before sentencing. Accordingly, an

argument based on Rule 35(b)(2) (or any other argument that Whitehead raises for

the first time on appeal) has not been adequately preserved and is not a basis for

relief here. See Perruquet v. Briley, 390 F.3d 505, 517 (7th Cir. 2004). 

AFFIRMED.