*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

1

 Because Garcia is proceeding pro se, we construe his filings liberally. 

See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

FILED

United States Court of Appeals

Tenth Circuit

January 29, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 09-3269

v. (D. of Kan.)

MAXIMINO GARCIA,

Defendant-Appellant.

(D.C. No. 03-CR-20061-1-CM)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.** 

Maximino Garcia, a federal prisoner appearing pro se and in forma

pauperis,1

 appeals the district court’s failure to compel the government to file a

motion to reduce his sentence under Rule 35 of the Federal Rules of Criminal

Procedure. The district court found that Garcia’s motion was moot, because the

Appellate Case: 09-3269 Document: 01018358366 Date Filed: 01/29/2010 Page: 1 
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government had already filed, and the district court had already granted, a motion

for sentence reduction pursuant to Rule 35. 

Because we lack jurisdiction under 18 U.S.C. § 3742, we DISMISS the

appeal. 

I. Background

Garcia pleaded guilty to conspiring to distribute methamphetamine on

January 5, 2004, and was sentenced to 292 months’ imprisonment on April 6,

2004. On August 19, 2005, the government filed a Rule 35(b) motion seeking a

60-month reduction of Garcia’s sentence for substantially assisting in the

prosecution of another. The district court granted the government’s motion that

same day.

Garcia filed a motion on July 26, 2007, requesting information concerning

a reduction of his sentence under Rule 35. The July 26 motion suggested Garcia

was unaware of the contents of both the government’s motion and the district

court’s order of August 19, 2005, which had been filed under seal. The district

court denied the motion, stating that Garcia should seek copies of those

documents from his counsel.

On July 27, 2009, Garcia filed the motion giving rise to this appeal. In that

motion, he alleged the government did not fulfill its agreement to file a Rule 35

motion to reduce his sentence in exchange for his substantial assistance. Garcia

requested the district court compel the government to file such a motion. The

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government responded to Garcia’s motion by noting that he had already

received—on August 19, 2005—the relief he sought to compel. The district

court, acknowledging that a Rule 35 reduction of 60 months had already been

requested and granted, denied the July 27 motion as moot. 

Garcia filed his notice of appeal on September 21, 2009. On appeal, for the

first time, he contends that his sentence was not reduced adequately due to an

unconstitutional motive and bad faith. 

II. Discussion

We lack jurisdiction to hear Garcia’s appeal under § 3742 and therefore

must dismiss the appeal. “Jurisdiction to review the district court’s grant of a

Rule 35(b) motion arises, if at all, under 18 U.S.C. § 3742(a).” United States v.

Neary, 183 F.3d 1196, 1197 (10th Cir. 1999). Section 3742 permits a defendant

to appeal his sentence only if the sentence: 

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing

guidelines; or

(3) is greater than the sentence specified in the applicable guideline range

. . .; or

(4) was imposed for an offense for which there is no sentencing guideline

and is plainly unreasonable. 

18 U.S.C. § 3742(a)(1)S(4). Section 3742 does not normally permit review of

the amount of a downward departure. See Neary, 183 F.3d at 1197. 

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2

 A district court may review the government’s refusal to file a substantial

assistance motion only in limited circumstances, including to determine whether

(continued...)

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The government moved to reduce Garcia’s sentence by 60 months pursuant

to Rule 35(b)(2)(B). Upon the government’s motion, that rule allows the district

court to reduce the sentence of a defendant who provides information within one

year of sentencing that does not substantially assist the government until more

than one year after sentencing. See FED. R. CRIM. P. 35(b)(2)(B). The district

court granted the government’s request, reducing Garcia’s sentence from 292 to

232 months’ imprisonment.

Garcia now contends that reduction of his sentence was inadequate. He

asserts that the government promised him it would move for an adequate

reduction in exchange for his cooperation, that his sentence was reduced by only a

small margin, and that those circumstances evidence an unconstitutional motive

and bad faith. Although Garcia does not reference § 3742 in his brief to this

court, based on a broad construal of his statements, he appears, for purposes of

that statute, to claim that his sentence was unlawfully imposed. Garcia’s

allegations, however, are insufficient to support such a claim. 

First, Garcia fails to identify, and we cannot discern, which particular

provisions of the law were supposedly violated. Second, Garcia does not allege

specific facts that demonstrate an unconstitutional motive, irrationality, or bad

faith influenced the sentence reduction he received.2

 Finally, Garcia does not

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2

(...continued)

is was “(1) animated by an unconstitutional motive, or (2) not rationally related to

a legitimate government end.” United States v. Duncan, 242 F.3d 940, 947 (10th

Cir. 2001) (analyzing 18 U.S.C. § 3553(e) and USSG § 5K1.1 ); United States v.

Evans, 955 F.2d 34, 35 (10th Cir. 1992) (“Because of their overlapping subject

matter and similarities in language, it is instructive to examine and compare []

§ 5K1.1 and [] § 3553(e) when interpreting Rule 35(b).” (internal parentheticals

omitted)). Also, “[a]bsent an unconstitutional motive, the extent to which a

district court exercises its discretionary authority to depart downward is not

subject to review.” United States v. Williams, --- F.3d ---, No. 08-3606, 2009 WL

5125273 (8th Cir. Dec. 30, 2009). 

3

 In addition to reviewing the government’s decision not to file a

substantial assistance motion for unconstitutional motive and irrationality, a

district court may review such a refusal if the defendant claims the refusal

violates an agreement. See Duncan, 242 F.3d at 945 n.6. 

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allege specific facts showing that the government breached an agreement with

him by moving to reduce his sentence by less than it previously agreed it would.3

Accordingly, because Garcia does not set forth a sufficient claim under

§ 3742, the court is without jurisdiction to hear his appeal. 

III. Conclusion

For the foregoing reasons, we DISMISS the appeal.

Entered for the Court,

Timothy M. Tymkovich

Circuit Judge 

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