* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60856

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TRILLO BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Mississippi

No. 1:03-CR-73

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Trillo Brown, federal prisoner # 11800-042, was convicted, on his guilty

plea, of violating 21 U.S.C. § 841 by distributing more than five grams of crack

United States Court of Appeals

Fifth Circuit

F I L E D

July 25, 2008

Charles R. Fulbruge III

Clerk
No. 07-60856

2

cocaine. He was sentenced to 105 months of imprisonment and did not appeal.

After his conviction became final, he filed a motion to compel the government to

move, pursuant to FED. R. CRIM.P. 35, to reduce his sentence. That motion was

denied. We affirm.

Proceeding pro se on appeal, Brown asserts that he complied with his pleabargain obligation to provide information concerning drug trafficking. He argues

thatthe government, in the plea agreement, bargained away its discretion to file

a rule 35 motion. He further contends that the government breached the plea

agreement because it neither moved for a departure for substantial assistance

nor for a reduced sentence pursuant to rule 35. In his view, the government had

an unconstitutional motive that consisted of “abusing [its] discretionary power

and [taking] advantage” of him.

On motion of the government, a court may reduce a sentence to reflect

substantial assistance in the investigation or prosecution of another offender.

FED. R. CRIM.P. 35(b). Only the government has the authority to file such a motion, butit does not have the obligation to do so. Wade v. United States, 504 U.S.

181, 185 (1992); United States v. Sneed, 63 F.3d 381, 389 n.6 (5th Cir. 1995).

Nevertheless,“a prosecutor’s discretion when exercising that power is subjectto

constitutional limitations that district courts can enforce.” Wade, 504 U.S. at

185. A court can review the refusal to move for a reduction if the defendant

makes “a ‘substantialthreshold showing’thatthe refusal is based on unconstitutional motives” such as race or religion. Sneed, 63 F.3d at 389 n.6 (quoting

Wade, 504 U.S. at 186). Brown does not make a substantial threshold showing

of an unconstitutional motive.

The record refutes Brown’s related contention—that the government’s

conduct does not comport with the parties’ reasonable understanding of the plea

agreement, which explicitly grants the government complete discretion with regard to filing a rule 35 motion. Brown expressly acknowledged the agreement’s

provisions at rearraignment and agreed with the prosecutor’s statement that the
No. 07-60856

3

agreement reflects all the promises, agreements, and understandings. Accordingly, and in view of the lack of any unconstitutional motive, the failure to file

such a motion did not violate the plea agreement. See United States v. Aderholt,

87 F.3d 740, 743 (5th Cir. 1996).

AFFIRMED.