FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 28, 2012

JOHN LEY

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 Case No. 11-13900 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 9:06-cr-80115-KAM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

ORAL ROGER RUSSELL, 

 Defendant-Appellant. 

________________________

 Appeal from the United States District Court

 for the Southern District of Florida 

 ________________________

(March 28, 2012)

Before BARKETT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

Oral Roger Russell, proceeding pro se, appeals the district court’s denial of

his motion to compel the government to file a sentence-reduction motion. Russell
argues that, despite the substantial assistance he provided law enforcement, the

government breached its oral promise to file a sentence-reduction motion on his

behalf. 

Pursuant to a written plea agreement, Russell pleaded guilty to one count of

possession with intent to distribute at least fifty grams of cocaine base, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and was sentenced to 262 months

imprisonment. The plea agreement made clear that the government reserved the

right to evaluate the extent and nature of Russell’s cooperation and, within its

discretion, could make a motion pursuant to Rule 35 of the Federal Rules of

Criminal Procedure for a sentence reduction. The agreement further stated that

“nothing in this Agreement may be construed to require [the government] to file

such a motion,” and that the government’s evaluation of Russell’s cooperation

could not be challenged. Russell signed the agreement. And the district court

accepted his plea as made knowingly and voluntarily, and without any promise not

contained in the agreement itself. 

Federal Rule of Civil Procedure 35(b) provides that “[u]pon the

government’s motion made within one year of sentencing, the court may reduce a

sentence if the defendant, after sentencing, provided substantial assistance in

investigating or prosecuting another person.” Fed. R. Crim. P. 35(b)(1). This

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Court has afforded the government “virtually unfettered discretion” in determining

whether to file a Rule 35(b) sentence-reduction motion. Murphy v. United States,

634 F.3d 1303, 1313 (11th Cir. 2011). 

To be sure, the government cannot refuse to file a substantial-assistance

motion on unconstitutional grounds, such as would happen if the refusal were

motivated by racial or religious discrimination or lacked a rational relation to a

legitimate government end. Wade v. United States, 504 U.S. 181, 185–86, 112 S.

Ct. 1840, 1843–44 (1992). But where a defendant’s claim rests solely on the

allegation that he provided substantial assistance, or on generalized allegations of

an improper motive, we can only conclude that the government’s decision not to

move was based “simply on its rational assessment of the cost and benefit that

would flow from moving.” Id. at 187, 112 S. Ct. at 1844.

Russell has not offered any basis for disregarding the plain terms of his plea

agreement, in which the government specifically disclaimed any obligation not

contained therein. Nor has he made a threshold showing that the government’s

refusal to move for the sentence reduction was based on unconstitutional grounds. 

See id. at 185–86, 112 S. Ct. at 1843–44. As a result, he has not shown grounds

for relief. 

AFFIRMED.

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