FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 26, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 04-13104, 04-13427, 04-14011 

Non-Argument Calendar

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D.C. Docket No. 93-06186-CR-KLR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDREW HOLSTON,

Defendant-Appellant.

__________________________

Appeal from the United States District Court 

 for the Southern District of Florida

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 (April 26, 2005)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

On January 12, 1994, appellant pled guilty pursuant to a plea agreement to

possession with intent to distribute cocaine base, and on April 4, 1994, the district
The plea agreement provided that the Government may move the court before sentencing 1

to depart downward from the Guidelines sentence range or the statutorily mandated minimum

sentence pursuant to U. S. S. G. § 5K1.1 and 18 U.S.C. § 3553(e). The plea agreement was silent,

however, as to the Government’s discretion to move the district court after sentencing to reduce

appellant’s sentence under Fed. R. Crim. P. 35(b). 

The Government also moved the court to unseal the parties’ plea agreement. The court 2

granted the motion.

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court sentenced him to a prison term of 200 months. On May 6, 2004, invoking 1

Fed. R. Crim. P. 35(b), appellant moved the district court for specific performance

of an oral agreement the Government allegedly made with him in 1999. 

According to his motion, in 1999, he contacted government agents; he offered

them information about a gang trafficking drugs; and after the Government orally

promised that if he testified before a grand jury, it would move the district court 

pursuant to Rule 35(b) to reduce his sentence, he appeared before a grand jury.

The Government, however, refused to move the court to reduce his sentence.

The Government filed a response to appellant’s Rule 35(b) motion. It 2

denied that it had promised appellant anything for appearing before the grand jury

and said that the law enforcement officers involved in the case did not believe that

appellant had been truthful before the grand jury. In short, the Government’s

position was that any assistance appellant had provided law enforcement was

worthless. 
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On June 3, 2004, the court denied appellant’s Rule 35(b) motion in a written

order which stated that it was denying the motion after reviewing “the pertinent

portions of the record and being duly advised in the premises.” On June 9,

appellant moved the court for an extension of time to respond to the

Government’s response to his May 6 motion. On June 11, appellant appealed the

court’s June 3 order. Appellant also moved the court to amend or reconsider that

order. On June 21, the court denied as moot appellant’s June 9 motion for an

extension of time, and appellant appealed that order. On July 15, the court issued

an order denying appellant’s motion to amend or reconsider, and appellant

appealed that order. 

Rule 35(b) Reducing a Sentence for Substantial Assistance, states, in

relevant part:

 (1) In General. Upon the government’s motion made

within one year of sentencing, the court may reduce a

sentence if:

 (A) the defendant, after sentencing,

provided substantial assistance in

investigating or prosecuting another person;

and 

 (B) reducing the sentence accords with the

Sentencing Commission’s guidelines and

policy statements. 

 (2) Later Motion. Upon the government's motion made

more than one year after sentencing, the court may
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reduce a sentence if the defendant's substantial assistance

involved:

 (A) information not known to the

defendant until one year or more after

sentencing;

 (B) information provided by the defendant

to the government within one year of

sentencing, but which did not become useful

to the government until more than one year

after sentencing; or

 (C) information the usefulness of which

could not reasonably have been anticipated

by the defendant until more than one year

after sentencing and which was promptly

provided to the government after its

usefulness was reasonably apparent to the

defendant.

Ten years elapsed between the imposition of appellant’s sentence and the

filing of appellant’s Rule 35(b) motion. Thus, the Rule’s subsection (2) governs. 

In addressing the government’s refusal to file a pre-sentencing substantialassistance motion pursuant to U. S. S. G. § 5K1.1 (which is akin to the postsentencing provision of Rule 35(b)), the Supreme Court in Wade v. United States,

504 U.S.181, 183, 185-86, 112 S.Ct. 1840, 1842, 1844, 118 L.Ed.2d 524 (1992),

held that:
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because we see no reason why courts should treat a prosecutor's

refusal to file a substantial-assistance motion differently from a

prosecutor's other decisions, we hold that federal district courts have

authority to review a prosecutor's refusal to file a substantialassistance motion and to grant a remedy if they find that the refusal

was based on an unconstitutional motive. Thus, a defendant would be

entitled to relief if a prosecutor refused to file a substantial-assistance

motion, say, because of the defendant's race or religion. It follows that

a claim that a defendant merely provided substantial assistance will

not entitle a defendant to a remedy or even to discovery or an

evidentiary hearing. Nor would additional but generalized allegations

of improper motive.

Wade, 504 U.S. at 185-186, 112 S.Ct. at 1843-1844. A defendant “would [also]

be entitled to relief if the prosecutor's refusal to move was not rationally related to

any legitimate [g]overnment end.” Wade, 504 U.S. at 186, 112 S.Ct. at 1844. 

Thus, although both § 5K1.1 and Rule 35(b) contain the limiting phrase “upon

motion by the government,” the Article III courts still retain the authority to

review the refusal on limited grounds, e.g., an unconstitutional motive. Wade, 504

U.S. at 185-186, 112 S.Ct. at 1844. 

As noted, the basis of appellant’s motion to compel is a breach by the

Government of an oral promise to file a Rule 35(b) motion. The question here

boils down to whether the district court was required to hold an evidentiary

hearing on appellant’s motion. Though we are aware of no decision addressing

the issue of when the court must hold an evidentiary hearing on a Rule 35(b)
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motion, we have considered the issue in the § 5K1.1 context. United States v.

Gonsalves, 121 F.3d 1416, 1420 (11th Cir. 1997). To obtain an evidentiary

hearing, we said, the “defendant must first put forth evidence of bad faith before

the government's duty to respond, and defendant's right to reply, are triggered.” 

Id. In this case, appellant failed to produce such evidence. The district court

therefore committed no error in denying appellant’s motion for Rule 35(b) relief. 

Further, the court did not abuse its discretion in denying appellant’s subsequent 

motions.

AFFIRMED.