* 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should not be published and is not precedent except under the limited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. 06-61073

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

BERNARD SANGS

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 2:97-CR-96-4

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Bernard Sangs, federal prisoner # 10671-042, appeals the district court’s

denial of his “motion for judicial review.” In that motion, Sangs argued that the

Government orally agreed to file a motion under FED. R. CRIM. P. 35 to reduce

his sentence for substantial assistance that he provided after sentencing, and

thatthe Government has refused to file the motion. The district court construed

the motion for judicial review as a successive motion under 28 U.S.C. § 2255 and

denied the motion because Sangs failed to obtain our certification of the motion.

United States Court of Appeals

Fifth Circuit

F I L E D

December 13, 2007

Charles R. Fulbruge III

Clerk
No. 06-61073

The government does not make a jurisdictional challenge, but we must

consider this court’s and the district court’s jurisdictional basis. See United

States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). The district court has

jurisdiction to correct or modify Sangs’s sentence in limited circumstances under

18 U.S.C. § 3582 (b) and (c). The applicable provision here permits jurisdiction

if the government moves to reduce a defendant’s sentence under FED. R. CRIM.

P. 35(b)(1). The court has jurisdiction when this motion is made more than one

year after sentencing if the defendant has substantially assisted the government

by providing “information not known to the defendant until one year or more

after sentencing”; information that was provided within one year of sentencing

that did not become useful until more than one year after sentencing; or

information that the defendant could not have reasonably anticipated to be

useful until more than one year after sentencing. FED. R. CRIM. P. 35(b)(2)(A)-

(C); see also United States v. Early, 27 F.3d 140, 141 (5th Cir. 1994). 

The district court has jurisdiction to review a government’s refusal to file

a Rule 35 motion only where the defendant has made a “substantial threshold

showing” that the government has refused based on an “unconstitutional

motive.” United States v. Sneed, 63 F.3d 381, 389 n.6 (5th Cir. 1995); Wade v.

United States, 504 U.S. 181, 185-86 (1992).

Sangs’s motion for judicial review was “an unauthorized motion which the

district court was without jurisdiction to entertain” because “his motion and

situation do not fit any provision” of the Rule. Early, 27 F.3d at 142. Sangs did

not make a “substantial threshold showing” of “unconstitutional motive” that

might have permitted the district court to review the Government’s refusal to

file a Rule 35(b) motion. See Wade, 504 U.S. at 185-86. Accordingly, we affirm

on the alternate grounds that the district court lacked jurisdiction. See Early,

27 F.3d at 142.
No. 06-61073

AFFIRMED.