### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-30857

UNITED STATES OF AMERICA, Plaintiff–Appellee
v. BRANDON BROWN, Defendant–Appellant

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:09-CV-3768

Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges. PER CURIAM: * Brandon Brown (“Brown”) pleaded guilty, pursuant to a formal plea agreement, to a ttempted posses s ion of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). B r o wn a lleges t hat, in addition to his formal plea a greement, he and the Governme nt entered into a s eparate, oral, post-plea agreement. Under that a l leged agreement, the Government would seek a sentence reduction for Brown, and, in exchange, Brown’s cousin, Richard Brown, would render substantial assistance to the Governmen t

. W hen the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Nov em ber 26, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-30857 Document: 00512453994 Page: 1 Date Filed: 11/26/2013No. 11-30857

government declined to f ile the motion to reduce B rown’s sentence, Brown filed

a petition under 2 8 U .S.C. § 2255, seeking to compel the Government t o file for

a sentence reduction pursuant to Federal Rule o f Criminal Procedure 35(b). The district court denied Brown’s peti t i o n a nd his motion to reconsider without an evidentiary hearing. Brown now appeals those decisions. We AFFIRM. I. BACKGROUND In 2005, Brown pleaded guilty, pursuant to a written plea agreement, to attempted possession of cocaine w ith intent to distribute. Although Brown faced

an advisory sentencing guidelines range of 262 to 327 months and a s tatutory maximum sentence of life imprison m e n t , t h e p lea agreement set forth a more favorable range of 192 to 216 months

. In return, B rown agreed t o waive the right to challenge his sentence on direct appeal a nd in any collateral proceeding under § 2 2 5 5 , e x c ept f or a sentence imposed in excess of the s tatutory maximum. 1 At sentencing, t h e d i s trict court o rdered a 204-month term of imprisonment. Brown filed no direct appeal. According to B rown, after he pleaded guilty, but before he w as sentenced, th e G o v e r n m e nt e n t e r e d i n t o a s e p a r at e, o ral, third-party cooperation agreeme n t with him. Under the a lleged agreement, the Government would file a Rule 35(b) motion s eeking a sentence reduction for Brown in exchange for Brown’s cousin, Richard B r o w n (“Ri c h a r d” ) , r e n d e ri n g s ub s t antial assistance t o the Government. Richard provided assistance in several drug investigations, leading to the i n dictment and guilty pleas of eight drug dealers. However, while t h e Government was s till investigatin g t h e cases in which Richard was providing

1 Although th e G o v e r n m ent s ought to enf orce the w aiver in the d is trict court, the G overnm ent d oes not s eek to enf orce it in this Court. Theref ore, the w aiver is not bind ing, and this Court m ay cons id er the ins tant ap p eal. See U ni ted Sta tes v
. Story , 439 F. 3d 226, 231 ( 5th Cir. 2006) ( “In the abs ence of the governm ent’s objection to [ the ap p ellant’s ] ap p eal bas ed on his ap p eal w aiver, the w aiver is not bind ing becaus e the governm ent has w aived the is s ue. ”)

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assistance, Brown attempted to end these investigat i ons by having his wife 2
anonymo u sly call law enforcement and tell them that a p olice officer was alerting the public that the DEA was using Richard as a confidential s ource to target crack cocaine dealers. Because of Brown’s interferen c e w i t h the investigations, the G o v e r n m e n t informed his attorney that it would not file a Rule 35(b) motion seeking to reduce his sentence. In 2009, Brown filed a § 2255 motion to correct his sentence, arguing that the Government had breached i ts verbal, post-plea ag r eement to move for a sentence reduction under Rule 35(b). While acknowledging that prosecutors generally h ave discretion whether to file Rule 35(b) motions, Brown claimed that the Government h a d bargained away its discretion w h e n it verbally promised to file a R ule 35(b) motion if R ichar d p r o v i d e d assistance. Brown argued that, b e cause Richard had substantially assisted the Government, t he Governme n t was obligated to file a Rule 35(b) motion on his behalf. The Government o p p osed Brown's motion on several grounds, including that the district court had n o j u risdiction to review B rown’s motion in the ab s e n c e of a Rule 35(b) motion filed by the Government o r an alleged unconstitutional motive for the Government’s failure to file a R ule 35(b) motion. 3 The Government argued t hat Brown h ad not made a s ho w i n g o f an unconstitutional m otive and that his a rgument about t he G overnment bargaining away its discretion was Brown’s attempt to circumvent t he S upreme Court’s decision i n Wade v. United States , 504 U.S. 1 81, 185 (1992). Finally, the

2 The record is unclear as to Brow n’s relations hip w ith the wom an w ho m ad e the call. At s om e p oints , s he is ref erred to as Brow n’s w if e, in others , as Brow n’s girlf riend

.
3 In its op p os ition to Brow n’s original § 2255 m otion, the G overnm ent als o argued that Brow n w aived his right to ap p eal, see sup ra , and Brow n's claim w as not cognizable und er § 2255. The G overnm ent has not p res s ed thes e is s ues on ap p eal, and s o w e do not cons id er them here. See U

ni ted Sta tes v. G rif

fi th , 522 F .3d 607, 610 ( 5th Cir. 2008) ( “It is a w ell worn p rincip le that the f

ailure to rais e an is s ue on ap p eal cons titutes w aiver of that argum ent. ”)

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Government claimed that Brown had nullified any a ssistance by obstructing the investigation gener a t e d by Richard’s assistance, a nd, in any event, Richard decided t o work f

or his own financial gain, and not Brown’s benefit, after his initial work for the Government. 4 On M arch 29, 2010, the district court denied Brown’s origina l § 2255 motion. The c o u r t explained that courts generally cannot interfere with the Government's discretionary decision to file Rule 35(b) motions; courts can, however, conside r c laims that the Government relied on an unconstitutional motive in refusing to file a Rule 35(b) motion. B ecause Brown had not alleged

an u nconstitutional motive f o r t he Government's failure to file a Rule 35(b) motion, Brown’s claim was unreviewable. While the court acknowledged that prosecutors are bound to fulfill promises made in exchange for a guilty plea, it found Brown wa s n o t e nt it l e d t o relief because the G overnment’s a lleged promise

o c curred after Brown entered his guilty p lea. B rown received notice o f t h e district court’s order on April 13, 2010. 5 Brown f i l e d a m o tion on April 20, 2 010 asking the district court to reconsider its denials of his § 2255 motion and his motion to a mend. The district court d enied Brown’s m otion for reconsid e r a t i o n on June 7, 2 011. The court found no e rror in its original anal y s i s
. T h e court o bserved that t h e alleged

4 The p arties d is p ute Richard ’s m otive f or as s is ting the G overnm ent. Brow n contend s that Richard w as w ork ing f or the G overnm ent s olely f or his ( Brow n’s ) benef i t

. T he G overnm ent argues that Richard m ad e his f irs t tw o s up ervis ed p urchas es f or Brow n’s benef

it but that later p urchas es w ere d one f or his ow n (Richard ’s ) m onetary cons id eration. Becaus e the f actual d is p ute d oes not im p act our conclus ions , w e need not res olve this is sue.

5 Becaus e the d is trict court’s ord er w as f iled und er s eal, the d ecis ion d id not ap p ear on the electronic d ock et s heet and w as not im m ed iately s erved on the p arties

. O n Ap ril 7. 2010— af

ter the court ruled on his original § 2255 m otion but bef ore he received a cop y of the ord er— Brow n f

iled a m otion to am end his p etition. H e sought to includ e alternative m otions to com p el the G overnm ent to f ile a Rule 35(b) m otion, to enf orce s p ecif

ic p erf orm ance of

the G overnm ent’s p rom is e to f ile a R ule 35(b) m otion, and f or an evid entiary hearing. The d is trict court d enied the m otion to am end as m oot in light of its earlier ord er d enying § 2255 relief

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verbal agreement between the parties took place after entry of Brown’s p lea and noted that a post-plea agreement did n ot raise the same constitutional issues as a plea agreement. Brown filed his notice of appeal on September 12, 2011. I I. STANDARD OF REVIEW We review questions o f law de novo and accept the district court’s factual findings unless they a re clearly e r roneous. United States v. Juarez , 672 F.3d 381, 385 (5th Cir. 2 012). This Court reviews the denial o f a m o t ion brought under 28 U.S.C. § 2255 without an e videntiary h earing for abuse of discretion. United States v
. Bartholomew , 974 F.2d 39, 41 (5th Cir. 1992). W e grant a request for an ev i d e n t i a ry h earing o nly when the Appellant has produced “independent indicia of the likely merit” of his allegation. United States v. Edwa r d s , 4 4 2 F.3d 258, 264 (5th Cir. 2006) (citations o mitted) (internal quotation marks omitted). III. DISCUSSION A. Does this Court have jurisdiction to hear Brown’s appeal? This Court has a duty to examine the basis of its jurisdiction, sua sponte, if necessary. M

osley v. Cozby , 813 F.2d 659, 6 60 (5th Cir. 1987). A timely notice of appeal is a jurisdictional requirement in a civil case. Bowles v
. Russell , 551 U.S. 205, 214 (2007); United States v. Hayes , 532 F.3d 349, 352 (5th Cir. 2008) (observing that a § 2255 proceeding is c ivil in nature). Federal Rule of Appellate Procedure 4(a)(1)(B) provides that a notice o f appeal in a civil case w h e r e the Government is a party m ust be filed w ithin sixty days of the entry o f judgment. Here, Brown filed his notice of appeal on September 12, 2011, seventeen months after he r e c e i v e d notice of t he district c ourt’s judgment. Certain postjudgment m otions, h owever, may suspend the time for fili n g a n o t ice of appeal. See Fed. R. App. P. 4(a)(4)(A) (listing p ostjudgment motions and stating that the time to file an a ppeal runs from the date o f entry of the order disposing of such mo t ions). Thus, we must first d etermine how to classify Brown’s

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postjudgment motion: as a moti o n f i l e d p ursuant to Federal Rule of Civil Procedure 59(e) or an unauthorized, successive petition u nder § 2 255. We can then assess whether the postjudgment motion enlarged the time to file Brown’s notice of appeal and, therefore, his notice of appeal was timely. 1. Is B rown’s motion properly c l a s s ified as a R ule 59(e) m otion or an unauthorized, successive petition under § 2255? B r own filed his motion to reconsider on April 20, 2010, t wenty-f i v e d a y s after the district c ourt ruled on Brown’s original § 2255 motion. Brown’s motion is styled as a Rule 59(e) motion, but that alone is n ot dispositive of whether Brown’s postjudgment motion should be classified a s a Ru l e 5 9 ( e ) motion or a successive § 2255 motion

. While the S upreme Court has not yet examined when a Rule 59(e) motion should be t reated as a successive § 2255 motion, it has e xplained that a motion filed pursuant t o Federal Rule of Civil P rocedure 60(b) is typically considered a successive § 2254 application if it raises new c l aims or “atta c k s t h e f ederal

c o u rt’s previous resolution of a claim on t he merits .” Gonzalez v. Crosby , 5 4 5 U.S. 524, 531–32 (2005). When a Rule 6 0(b) motion does not challenge the district c ourt’s prior resolution of claims on the merits a nd instead attacks “some defect in the integrity of the federal habeas p roceedings,” the motion is not the equivalent o f a su ccessive h abeas application and should n ot be construed as such. Id. at 5 32. Examples of motions attacking a defect i n the integrity of the federal habeas proceedings include a claim o f fraud on the court or challenges to a court’s procedural ruling which precluded a merits determination, such as when a ruling is based on an a lleged failure to exhaust, a p rocedural default, or a time-bar determination. Id. at 532 nn.4–5. While the Gonzalez c ourt declined to consider whether its analysis would be equally applicable to § 2255 cases, id. at 529 n.3, this Court has applied the holding in Gonzalez to § 2 255 cases. See, e.g. , W illiams v. Thaler , 602 F.3d 291,

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302 & n.4 (5th Cir. 2010) (noting that almost every c i r c u i t has applied the rationale of Gonzalez t o § 2 255 proceedings); United States v. Bain , 3 09 F. App’x 889, 890 (5th Cir. 2009) (unpublished) (per curiam) (citing Gonzalez in a § 2255 case). Additionally, this C ourt has held that the principl e s announced in Gonz a l e z s hould be used t o determine whether motions filed pursuant to Rule 59(e) are unauthorized successive § 2 2 5 4 a p p l i cations. Williams , 602 F. 3d at 303–04. We therefore a pply t he principles from Gonzalez to determine whether Brown’s motion f

o r reconsideration is an unauthorized successive § 2255 motion or a Rule 59(e) motion. This Court ordered supplemental briefing on the iss ue of how to classify B r o w n’s postjudgment motion. Brown claims t hat his motion f or reconsi d e r a t i o n

was a Rule 59(e) m otion because it did not raise a new cla i m o r a t t a c k the district court's prior ruling o n t he merits but was instead an attack on the integrity of the federal habeas proceedings. Bro w n a r g u es that there was no merits ruling for h i m t o challenge because the district court dismissed h is § 2255 motion for procedural reasons when i t ruled that judicial re v i e w was not available. He a lso p oints out that his original § 2 255 motion s ought an evidentiary hearing and t hat his motion for reconsideration simply renewed this request. The Government a grees that Brown’s a rgument in his postjudgme n t motion was essentially that t he district court should h ave held an e videntiary hearing, and so the motion to reconsider sho u l d b e classified as a Rule 59(e) motion. We agree that Brown’s motion to reconsider was a Rule 5 9(e) motion. As both Brown and th e G o v e r nment point out, one o f the key points in Brown’s motion for reconsideration is his claim t hat he was entitled to an e videntiary hearing. This claim is a challenge to a procedural ruling o f the sort mentioned in Gonzalez , making his motion an attack on “ s ome defect in t he integrity of the

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federal h abeas proceeding[]” and t h u s n o t an unauthorized, successive habeas petition. See Gonzalez , 545 U.S. at 531–32 & nn.4–5. In addition, Brown’s postjudgment a rgument t hat the district court failed to consider the “crux” of his claim—that the Government h a d b argained away its discretion—did not raise a new c laim. B rown a rgued in his original § 2255 motion that the Government w as required to file a Rule 35(b) motion because it had b a r g ained away its discretion in m aking the alleged o ral, post-plea agreement. Though B r o w n r epeated that argument i n his motion for reconsideration, Brown did not raise a new claim. See Balentine v. Thaler , 626 F.3d 842, 848–49 (5th C ir. 2010) (holding t hat a Rule 60(b) motion did n ot raise

a new claim f

or ineffect i v e a ssistance o f counsel—and thus was not an unauthorized successive § 2 254 petition—where the origin a l § 2254 petition raised an ineffective assistance of counsel claim). Because Brown’s motion for reconsideration attacked the integrity of t he federal h abeas proceeding instead of raising a n ew claim, it is a Rule 59(e) motion, not a successive § 2255 motion

. 2. D i d B r o w n’s postjudgment motion enlarge the time to f ile h is notice of appeal? We must next address whether Brown’s Rule 59(e) motion expanded the time for Brown to file his notice of appeal. Because Brown’s motion to reconsider is a Rule 59(e) m otion, the t ime to f ile his notice of appeal did not begin to run until after entry of the court order disposing of his motion. See Fed. R. App. P. 4(a)(4)(A)(iv) (explaining that “the time to file an appeal runs
. . . from the entry of the order di s p osing of the last such remaining motion” filed under Rule 59). The order disposing of Brown’s motion was en t e r ed on J une 7, 2011. Thus, Brown had sixty days from that date, s pecifically until Monday, August 8, 2011, to f ile his notice of appeal. See Fed. R

. App. P. 4(a)(1)(B) (giving sixty days after entry of the j udgmen t o r order appealed to f ile a notice of appeal when the

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United States i s a party); see also Fed. R. App. P. 2 6(a)(1) (e x p l aining how to compute time under the Federal Rules of Appellate Procedure). On August 3, 2 011, within the sixty-day time frame, Brown filed a motion seeking an e x t e n s i o n o f time to file a notice o f appeal. A litigant seeking an

e x t e n s ion of time for filing an appeal must file the extension motion no l a t e r than thirty days a fter expiration of t he a pplicable period for noticing an appeal. Fed. R. App. P. 4(a)(5)(A). Because Brown’s extension motion was file d b e f o r e the sixty-day period ended, his motion seeking an extension of t i m e t o file a notice of appeal was timely. See id. A d istrict court m ay grant an extension of time for filing a notice o f appeal

on a showing of good c ause or excusable neglect, but the extension i s limited to

no later than thirty d ays a fter expiration of the applicable appeal period or fourteen days after the date the court’s extension order is e ntered, w hichever is later. Fed. R. App. P

. 4 ( a)(5)(C). Here, the district court granted B rown an extension to file his notice of appeal until S eptember 2 0, 2 0 1 1 , m o re than the thirty days allowed under Federal Rule of Appellate Procedure 4(a)(5)( C ). Although this date was m ore than thirty days a fter the expiration of Brown’s sixty-day appeal p eriod, it was within fourteen days from September 8, 2011, the date t he court’s extension order was granted. Thus, the c ourt granted Brown a permissible extension period to file his notice of appeal. Brown filed his notice of appeal on September 12, 2011. Because Brown filed his notice of appeal prior to the September 20, 2011 deadline, h is notice of appeal was timely.

B. Did t he district court e rr when it refused to enforce the alleged, oral post-plea agreement by the Government to request a Rule 35(b) reduction of sentence?

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Brown contends that t he district court erred in r efusing to enforce the Government’s alleged promise to file a Rule 35(b) motion t o reduce his s entence in exchange for his c ousin’s assistance. H e argues, as he did b efore the district court, that the G o v e rnment bargained away i ts di scretion to file the Rule 35(b) motion. T o support this argument, Brown points t o Santobello v. New York , 404 U.S. 257 (1971), where the Supreme Court held that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so t hat it can be said to be part of t h e i n ducement or consideration, such p romise m ust be fulfilled.” Santobello , 404 U.S

. a t 2 6 2

. He argues that Santobello applies to post-plea agreements intended to induce cooperation with the Government. See, e.g. , Williams v. S

pitzer , 2 46 F. Supp. 2d 368 (S.D.N. Y

. 2 0 0 3 ) (extending Santobello t o require enforcem e n t of p rosecutors’ promises made to induce cooperation wit h the G overnment and ordering an evidentiary hearing to determine whether prosecutors made the promises the prisoner alleged). Brown also cites c ases from this Court— United States v. Price , 95 F.3d 364 (5th Cir. 1996) (per curiam), United States v. Watson , 988 F.2d 544 (5th Cir. 1 993)—that he characterizes as holding that t he Government c an b argain away i ts discretion to file a rule 35(b) motion. Brown’s a rguments are unavailing. Brown concedes that his alleged oral agreement with the Government was a post-plea a greement

. Santobello , however, did not address post-plea a greements. Santobello , 404 U.S. at 261–63. Ins t e a d , t h e Supreme Court was concerned with p risoners being induced to
p lead guilty—and thereby give up certain c onstitutional rights—wit h o u t receiving the be n e f

i t o f the promises on w hich their guilty plea r ested. I d

. Because B r o w n h a d already pleaded guilty when the alleged o ral post-plea agreement was m ade, those concerns are not implicated in the instant case. 6 His

6 Brow n rais es a new claim in his rep ly brief

. H e argues that his oral agreem ent w ith the G overnm ent occurred af ter rearraignm ent but bef ore the d is trict court accep ted his p lea 10 Case: 11-30857 Document: 00512453994 Page: 10 Date Filed: 11/26/2013No. 11-30857

argument that we should follow Will i a m s i n extending Santobello to post-plea

a g r eements does not change this conclusion. A s the district court observed, Williams is r e a dily distinguishable: it concerned “an alleged agreement to withdraw a guilty plea which necessarily implicates constitutional protections,” unlike the Rule 3 5(b) motion alleged in this case. The cases that B rown ci t es from our circuit enco u n t e r t he same difficulty; they address plea agreements—not post-plea agreements—and t h erefor e a r e di s ti n gu i shable from the instant case. See Price , 95 F.3d at 366 (“Defendant

. . . appeals his s entence

on the grounds that

. . . the Governmen t b r e ached the terms of the plea agreement .” (emphasis added)); United States v. Garcia–Bonilla , 11 F.3d 45, 46 (5t h C i r
. 1993) (“Garcia contends that the government breached the plea agreement .” (emphasis added)); Wat s o n , 9 88 F.2d at 548 (discussing the defendant’s argument that his plea was involuntary because he was “induced to plead guilty by the government’s promise to move for downward departure”). Moreover, con t r o l ling p recedent supports the district court’s c o nclusion that judicial review i s not available because Brown has failed to a llege that the Government’s d ec i s i o n not to file a Rule 3 5(b) motion was based on an unconstitutional motive. 7 As the Supreme Court h eld in Wade , “federal district

a t the s entencing hearing. Becaus e Fed eral Rule of C rim inal Proced ure 11( d) p erm i t s a d ef end ant to w ithd raw a guil t y p l e a f o r any reas on or no reas on bef ore it is accep ted by the d is trict court, Brow n claim s that his agreem e n t w i t h t h e G overnm ent becam e p art of his “k now ing and voluntary plea becaus e it inf orm ed his d ecis ion not to w ithd raw his guilty p lea,
as perm itted by R ule 11. ” This Court, how ever, d oes not generally cons id er argum ents rais ed f or the f irs t tim e in a rep ly brief

. U ni ted Sta tes v
. Ja ckson , 50 F. 3d 1335, 1340 n. 7 ( 5th Cir. 1995)

.
7 Brow n could als o be entitled t o r e l ief if the p ros ecutor ref us ed to f

ile a R ule 35(b)
m otion f or reas ons not rationally related to any legitim ate G overnm ent end

. See Wa de , 504 U

. S. a t 1 8 6 ( “As the G overnm ent conced es , [ the ap pellant] w ould be entitled to relief if the p ros ecutor’s ref

us al to m ove w as not rationally related to any legitim a t e G o v e r n m ent end

. ” ( citations om itted ))

. H e, how ever, d id not allege bef ore the d is trict court or this C ourt that the G overnm ent’s ref

us al to f

ile the m o t i o n w as not rationally related to any legitim ate G overnm ent end

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courts have autho r i t y to review a prosecutor’s refusal t o file a [Rule 35(b)] substantial-assistance motion and to grant a remedy if t hey f ind t hat the refusal

was b ased on an unconstitutional motive .” Wade , 504 U.S. at 185–86 (emphasis added). In applying Wade to a case where the defendant claimed he was entitled to a sentence r eduction for providing assistance to t he Government after a jury found him guilty, t his Court f ound the defendant’s claim u nreviewable. United States v. Sneed , 63 F.3d 381, 3 8 8

– 8 9 n
. 6 (5th C ir. 1 995). We concluded that, “[e]ven assuming that the Go v e r n m e n t did promise to file a Rule 35(b) motion

on [the appellant’s] behalf, we cannot review [his] Rule 35(b) claim because he does not s uggest t hat the Government’s f a i l u r e t o make the motion was unconstitutionally motivated.” I d. Because we d ecline to apply Santobello in the manner B rown wishes and Brown has not alleged an unconstitutional motive for the Government’s refusal to file a Rule 35(b) m otion, we hold the dist r i c t c o u r t did not err in failing to

e n f o rce the alleged post-plea agreement by the Government to request a R u l e 35(b) reduction of sentence.

C. D id the district c ourt a b u s e its d iscretion when it failed to hold a n evidentiary hearing on Brown’s motion? Finally, Brown argues that this Court should remand his c a se for the district court to conduct an evidentiary hearing on the merits of his claim. He claims that the factual d isputes b e tween his account of the alleged post-plea agreement and the Government’s account warrant an evidentiary hearing. W e d isagree. “ [A] claim t hat a defendant merely provided substantial

a s s i s t a n c e will not entitle a defendant to a remedy or even t o discovery or an

e v i d entiary hearing.” Wade , 504 U.S. at 186. The defendant must make a “thresho l d s howing” that he or she would be entitled to relief to warrant an evidentiary hearing. Id. Brown, like the defendant in Wade , “has n ever alleged,

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much less claimed to h ave e vidence t ending to show, that the G overnment refused to file a motion f o r suspect reasons such as his race or his religion.” I d. The factual discrepancies between th e two parties’ accounts do not entitle Brown to an evidentiary hearing. Brown would not be entitled to relief as a matter of law, because he has not alleged the Government’s failure to file the Rule 35(b) motion w as the result o f an unconstitutional motive. See supra Part III.B. We hold that the district court d i d n o t a buse its discretion b ecause, as the district court correctly observed, even “[a]ssuming arguendo that t h e Government did enter into a subsequent verbal agreement with the defendant, the Court could not compel the Government to file a [R]ule 35(b) motion under the circumstances here.” IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision.

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