* Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. 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, ofviolating 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 ClerkNo. 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 F ED
. R. C RIM
. P. 35, to reduce his sentence. That motion was denied. We affirm. Proceeding proseon appeal, Brown asserts that hecomplied with his pleabargain obligation to provide information concerning drug trafficking. He argues that the government, in the plea agreement, bargained away its discretion tofile 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. F ED
. R. C RIM
. P. 35(b). Only the government has the authority to file such a motion, but it does not have the obligation to doso. Wadev. 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 subject to 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 ‘substantial threshold showing’ that the refusal is based on unconstitutional motives” such as race or religion. S need, 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 ofthe plea agreement, which explicitly grants the government complete discretion with regard to filing a rule 35 motion. Brown expressly acknowledged the agreement’s provisionsat rearraignment and agreed with the prosecutor’s statement that theNo. 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 Statesv. Aderholt, 87 F.3d 740, 743 (5th Cir. 1996). AFFIRMED.