IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 attempted possession of cocaine with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Brown alleges that, in addition to his

formal plea agreement, he and the Government entered into a separate, oral,

post-plea agreement. Under that alleged agreement, the Government would

seek a sentence reduction for Brown, and, in exchange, Brown’s cousin, Richard

Brown, would render substantial assistance to the Government. When the

United States Court of Appeals

Fifth Circuit

F I L E D

November 26, 2013

Lyle W. Cayce

Clerk

* 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.

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government declined to file the motion to reduce Brown’s sentence, Brown filed

a petition under 28 U.S.C. § 2255, seeking to compel the Government to file for

a sentence reduction pursuant to Federal Rule of Criminal Procedure 35(b). The

district court denied Brown’s petition and 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 with intent to distribute. Although Brown faced

an advisory sentencing guidelines range of 262 to 327 months and a statutory

maximum sentence of life imprisonment, the plea agreement set forth a more

favorable range of 192 to 216 months. In return, Brown agreed to waive the

right to challenge his sentence on direct appeal and in any collateral proceeding

under § 2255, except for a sentence imposed in excess of the statutory

maximum.1 At sentencing, the district court ordered a 204-month term of

imprisonment. Brown filed no direct appeal.

According to Brown, after he pleaded guilty, but before he was sentenced,

the Government entered into a separate, oral, third-party cooperation agreement

with him. Under the alleged agreement, the Government would file a Rule 35(b)

motion seeking a sentence reduction for Brown in exchange for Brown’s cousin,

Richard Brown (“Richard”), rendering substantial assistance to the Government. 

Richard provided assistance in several drug investigations, leading to the

indictment and guilty pleas of eight drug dealers. However, while the

Government was still investigating the cases in which Richard was providing

1 Although the Government sought to enforce the waiver in the district court, the

Government does not seek to enforce it in this Court. Therefore, the waiver is not binding, and

this Court may consider the instant appeal. See United States v. Story, 439 F.3d 226, 231 (5th

Cir. 2006) (“In the absence of the government’s objection to [the appellant’s] appeal based on

his appeal waiver, the waiver is not binding because the government has waived the issue.”).

2

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assistance, Brown attempted to end these investigations by having his wife2

anonymously call law enforcement and tell them that a police officer was

alerting the public that the DEA was using Richard as a confidential source to

target crack cocaine dealers. Because of Brown’s interference with the

investigations, the Government 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 its verbal, post-plea agreement to move for a

sentence reduction under Rule 35(b). While acknowledging that prosecutors

generally have discretion whether to file Rule 35(b) motions, Brown claimed that

the Government had bargained away its discretion when it verbally promised to

file a Rule 35(b) motion if Richard provided assistance. Brown argued that,

because Richard had substantially assisted the Government, the Government

was obligated to file a Rule 35(b) motion on his behalf. 

The Government opposed Brown's motion on several grounds, including

that the district court had no jurisdiction to review Brown’s motion in the

absence of a Rule 35(b) motion filed by the Government or an alleged

unconstitutional motive for the Government’s failure to file a Rule 35(b) motion.3

The Government argued that Brown had not made a showing of an

unconstitutional motive and that his argument about the Government

bargaining away its discretion was Brown’s attempt to circumvent the Supreme

Court’s decision in Wade v. United States, 504 U.S. 181, 185 (1992). Finally, the

2 The record is unclear as to Brown’s relationship with the woman who made the call.

At some points, she is referred to as Brown’s wife, in others, as Brown’s girlfriend.

3

In its opposition to Brown’s original § 2255 motion, the Government also argued that

Brown waived his right to appeal, see supra, and Brown's claim was not cognizable under

§ 2255. The Government has not pressed these issues on appeal, and so we do not consider

them here. See United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (“It is a well worn

principle that the failure to raise an issue on appeal constitutes waiver of that argument.”).

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Government claimed that Brown had nullified any assistance by obstructing the

investigation generated by Richard’s assistance, and, in any event, Richard

decided to work for his own financial gain, and not Brown’s benefit, after his

initial work for the Government.4

 

On March 29, 2010, the district court denied Brown’s original § 2255

motion. The court explained that courts generally cannot interfere with the

Government's discretionary decision to file Rule 35(b) motions; courts can,

however, consider claims that the Government relied on an unconstitutional

motive in refusing to file a Rule 35(b) motion. Because Brown had not alleged

an unconstitutional motive for the 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 was not entitled to relief because the Government’s alleged promise

occurred after Brown entered his guilty plea. Brown received notice of the

district court’s order on April 13, 2010.5

 

Brown filed a motion on April 20, 2010 asking the district court to

reconsider its denials of his § 2255 motion and his motion to amend. The district

court denied Brown’s motion for reconsideration on June 7, 2011. The court

found no error in its original analysis. The court observed that the alleged

4 The parties dispute Richard’s motive for assisting the Government. Brown contends

that Richard was working for the Government solely for his (Brown’s) benefit. The

Government argues that Richard made his first two supervised purchases for Brown’s benefit

but that later purchases were done for his own (Richard’s) monetary consideration. Because

the factual dispute does not impact our conclusions, we need not resolve this issue.

5 Because the district court’s order was filed under seal, the decision did not appear on

the electronic docket sheet and was not immediately served on the parties. On April 7.

2010—after the court ruled on his original § 2255 motion but before he received a copy of the

order—Brown filed a motion to amend his petition. He sought to include alternative motions

to compel the Government to file a Rule 35(b) motion, to enforce specific performance of the

Government’s promise to file a Rule 35(b) motion, and for an evidentiary hearing. The district

court denied the motion to amend as moot in light of its earlier order denying § 2255 relief.

4

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verbal agreement between the parties took place after entry of Brown’s plea and 

noted that a post-plea agreement did not raise the same constitutional issues as

a plea agreement. Brown filed his notice of appeal on September 12, 2011. 

II. STANDARD OF REVIEW

We review questions of law de novo and accept the district court’s factual

findings unless they are clearly erroneous. United States v. Juarez, 672 F.3d

381, 385 (5th Cir. 2012). This Court reviews the denial of a motion brought

under 28 U.S.C. § 2255 without an evidentiary hearing for abuse of discretion. 

United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). We grant a

request for an evidentiary hearing only when the Appellant has produced

“independent indicia of the likely merit” of his allegation. United States v.

Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (citations omitted) (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. Mosley v. Cozby, 813 F.2d 659, 660 (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 civil in nature). Federal Rule of Appellate

Procedure 4(a)(1)(B) provides that a notice of appeal in a civil case where the

Government is a party must be filed within sixty days of the entry of judgment. 

Here, Brown filed his notice of appeal on September 12, 2011, seventeen

months after he received notice of the district court’s judgment. Certain

postjudgment motions, however, may suspend the time for filing a notice of

appeal. See Fed. R. App. P. 4(a)(4)(A) (listing postjudgment motions and stating

that the time to file an appeal runs from the date of entry of the order disposing

of such motions). Thus, we must first determine how to classify Brown’s

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postjudgment motion: as a motion filed pursuant to Federal Rule of Civil

Procedure 59(e) or an unauthorized, successive petition under § 2255. 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 Brown’s motion properly classified as a Rule 59(e) motion or an

unauthorized, successive petition under § 2255?

Brown filed his motion to reconsider on April 20, 2010, twenty-five days

after the district court ruled on Brown’s original § 2255 motion. Brown’s motion

is styled as a Rule 59(e) motion, but that alone is not dispositive of whether

Brown’s postjudgment motion should be classified as a Rule 59(e) motion or a

successive § 2255 motion.

While the Supreme Court has not yet examined when a Rule 59(e) motion

should be treated as a successive § 2255 motion, it has explained that a motion

filed pursuant to Federal Rule of Civil Procedure 60(b) is typically considered a

successive § 2254 application if it raises new claims or “attacks the federal

court’s previous resolution of a claim on the merits.” Gonzalez v. Crosby, 545

U.S. 524, 531–32 (2005). When a Rule 60(b) motion does not challenge the

district court’s prior resolution of claims on the merits and instead attacks “some

defect in the integrity of the federal habeas proceedings,” the motion is not the

equivalent of a successive habeas application and should not be construed as

such. Id. at 532. Examples of motions attacking a defect in the integrity of the

federal habeas proceedings include a claim of 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 alleged failure to exhaust, a procedural default, or

a time-bar determination. Id. at 532 nn.4–5.

While the Gonzalez court 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 § 2255 cases. See, e.g., Williams v. Thaler, 602 F.3d 291,

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302 & n.4 (5th Cir. 2010) (noting that almost every circuit has applied the

rationale of Gonzalez to § 2255 proceedings); United States v. Bain, 309 F. App’x

889, 890 (5th Cir. 2009) (unpublished) (per curiam) (citing Gonzalez in a § 2255

case). Additionally, this Court has held that the principles announced in

Gonzalez should be used to determine whether motions filed pursuant to Rule

59(e) are unauthorized successive § 2254 applications. Williams, 602 F. 3d at

303–04. We therefore apply the principles from Gonzalez to determine whether

Brown’s motion for reconsideration is an unauthorized successive § 2255 motion

or a Rule 59(e) motion. 

This Court ordered supplemental briefing on the issue of how to classify

Brown’s postjudgment motion. Brown claims that his motion for reconsideration

was a Rule 59(e) motion because it did not raise a new claim or attack the

district court's prior ruling on the merits but was instead an attack on the

integrity of the federal habeas proceedings. Brown argues that there was no

merits ruling for him to challenge because the district court dismissed his § 2255

motion for procedural reasons when it ruled that judicial review was not

available. He also points out that his original § 2255 motion sought an

evidentiary hearing and that his motion for reconsideration simply renewed this

request. The Government agrees that Brown’s argument in his postjudgment

motion was essentially that the district court should have held an evidentiary

hearing, and so the motion to reconsider should be classified as a Rule 59(e)

motion. 

We agree that Brown’s motion to reconsider was a Rule 59(e) motion. As

both Brown and the Government point out, one of the key points in Brown’s

motion for reconsideration is his claim that he was entitled to an evidentiary

hearing. This claim is a challenge to a procedural ruling of the sort mentioned

in Gonzalez, making his motion an attack on “some defect in the integrity of the

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federal habeas proceeding[]” and thus not an unauthorized, successive habeas

petition. See Gonzalez, 545 U.S. at 531–32 & nn.4–5. 

In addition, Brown’s postjudgment argument that the district court failed

to consider the “crux” of his claim—that the Government had bargained away

its discretion—did not raise a new claim. Brown argued in his original § 2255

motion that the Government was required to file a Rule 35(b) motion because it

had bargained away its discretion in making the alleged oral, post-plea

agreement. Though Brown repeated that argument in his motion for

reconsideration, Brown did not raise a new claim. See Balentine v. Thaler, 626

F.3d 842, 848–49 (5th Cir. 2010) (holding that a Rule 60(b) motion did not raise

a new claim for ineffective assistance of counsel—and thus was not an

unauthorized successive § 2254 petition—where the original § 2254 petition

raised an ineffective assistance of counsel claim). Because Brown’s motion for

reconsideration attacked the integrity of the federal habeas proceeding instead

of raising a new claim, it is a Rule 59(e) motion, not a successive § 2255 motion.

2. Did Brown’s postjudgment motion enlarge the time to file his 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) motion, the time to file 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 disposing of the last such remaining motion” filed under Rule 59). 

The order disposing of Brown’s motion was entered on June 7, 2011. Thus,

Brown had sixty days from that date, specifically until Monday, August 8, 2011,

to file his notice of appeal. See Fed. R. App. P. 4(a)(1)(B) (giving sixty days after

entry of the judgment or order appealed to file a notice of appeal when the

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United States is a party); see also Fed. R. App. P. 26(a)(1) (explaining how to

compute time under the Federal Rules of Appellate Procedure). 

On August 3, 2011, within the sixty-day time frame, Brown filed a motion

seeking an extension of time to file a notice of appeal. A litigant seeking an

extension of time for filing an appeal must file the extension motion no later

than thirty days after expiration of the applicable period for noticing an appeal. 

Fed. R. App. P. 4(a)(5)(A). Because Brown’s extension motion was filed before

the sixty-day period ended, his motion seeking an extension of time to file a

notice of appeal was timely. See id.

A district court may grant an extension of time for filing a notice of appeal

on a showing of good cause or excusable neglect, but the extension is limited to

no later than thirty days after expiration of the applicable appeal period or

fourteen days after the date the court’s extension order is entered, whichever is

later. Fed. R. App. P. 4(a)(5)(C). Here, the district court granted Brown an

extension to file his notice of appeal until September 20, 2011, more than the

thirty days allowed under Federal Rule of Appellate Procedure 4(a)(5)(C). 

Although this date was more than thirty days after the expiration of Brown’s

sixty-day appeal period, it was within fourteen days from September 8, 2011, the

date the court’s extension order was granted. Thus, the court 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, his notice of

appeal was timely.

B. Did the district court err 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 the district court erred in refusing to enforce the

Government’s alleged promise to file a Rule 35(b) motion to reduce his sentence

in exchange for his cousin’s assistance. He argues, as he did before the district

court, that the Government bargained away its discretion to file the Rule 35(b)

motion. To support this argument, Brown points to 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 that it can be

said to be part of the inducement or consideration, such promise must be

fulfilled.” Santobello, 404 U.S. at 262. He argues that Santobello applies to

post-plea agreements intended to induce cooperation with the Government. See,

e.g., Williams v. Spitzer, 246 F. Supp. 2d 368 (S.D.N.Y. 2003) (extending

Santobello to require enforcement of prosecutors’ promises made to induce

cooperation with the Government and ordering an evidentiary hearing to

determine whether prosecutors made the promises the prisoner alleged). Brown

also cites cases 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. 1993)—that

he characterizes as holding that the Government can bargain away its discretion

to file a rule 35(b) motion.

Brown’s arguments are unavailing. Brown concedes that his alleged oral

agreement with the Government was a post-plea agreement. Santobello,

however, did not address post-plea agreements. Santobello, 404 U.S. at 261–63. 

Instead, the Supreme Court was concerned with prisoners being induced to

plead guilty—and thereby give up certain constitutional rights—without

receiving the benefit of the promises on which their guilty plea rested. Id. 

Because Brown had already pleaded guilty when the alleged oral post-plea

agreement was made, those concerns are not implicated in the instant case.6 His

6 Brown raises a new claim in his reply brief. He argues that his oral agreement with

the Government occurred after rearraignment but before the district court accepted his plea

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argument that we should follow Williams in extending Santobello to post-plea

agreements does not change this conclusion. As the district court observed,

Williams is readily distinguishable: it concerned “an alleged agreement to

withdraw a guilty plea which necessarily implicates constitutional protections,”

unlike the Rule 35(b) motion alleged in this case. The cases that Brown cites

from our circuit encounter the same difficulty; they address plea

agreements—not post-plea agreements—and therefore are distinguishable from

the instant case. See Price, 95 F.3d at 366 (“Defendant . . . appeals his sentence

on the grounds that . . . the Government breached the terms of the plea

agreement.” (emphasis added)); United States v. Garcia–Bonilla, 11 F.3d 45, 46

(5th Cir. 1993) (“Garcia contends that the government breached the plea

agreement.” (emphasis added)); Watson, 988 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, controlling precedent supports the district court’s conclusion

that judicial review is not available because Brown has failed to allege that the

Government’s decision not to file a Rule 35(b) motion was based on an

unconstitutional motive.7 As the Supreme Court held in Wade, “federal district

at the sentencing hearing. Because Federal Rule of Criminal Procedure 11(d) permits a

defendant to withdraw a guilty plea for any reason or no reason before it is accepted by the

district court, Brown claims that his agreement with the Government became part of his

“knowing and voluntary plea because it informed his decision not to withdraw his guilty plea,

as permitted by Rule 11.” This Court, however, does not generally consider arguments raised

for the first time in a reply brief. United States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir.

1995).

7 Brown could also be entitled to relief if the prosecutor refused to file a Rule 35(b)

motion for reasons not rationally related to any legitimate Government end. See Wade, 504

U.S. at 186 (“As the Government concedes, [the appellant] would be entitled to relief if the

prosecutor’s refusal to move was not rationally related to any legitimate Government end.”

(citations omitted)). He, however, did not allege before the district court or this Court that the

Government’s refusal to file the motion was not rationally related to any legitimate

Government end.

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courts have authority to review a prosecutor’s refusal to file a [Rule 35(b)]

substantial-assistance motion and to grant a remedy if they find that the refusal

was based 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 reduction for providing assistance to the Government after a jury

found him guilty, this Court found the defendant’s claim unreviewable. United

States v. Sneed, 63 F.3d 381, 388–89 n.6 (5th Cir. 1995). We concluded that,

“[e]ven assuming that the Government 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 suggest that the Government’s failure to make the motion was

unconstitutionally motivated.” Id.

Because we decline to apply Santobello in the manner Brown wishes and

Brown has not alleged an unconstitutional motive for the Government’s refusal

to file a Rule 35(b) motion, we hold the district court did not err in failing to

enforce the alleged post-plea agreement by the Government to request a Rule

35(b) reduction of sentence.

C. Did the district court abuse its discretion when it failed to hold an

evidentiary hearing on Brown’s motion?

Finally, Brown argues that this Court should remand his case for the

district court to conduct an evidentiary hearing on the merits of his claim. He

claims that the factual disputes between his account of the alleged post-plea

agreement and the Government’s account warrant an evidentiary hearing.

We disagree. “[A] claim that a defendant merely provided substantial

assistance will not entitle a defendant to a remedy or even to discovery or an

evidentiary hearing.” Wade, 504 U.S. at 186. The defendant must make a

“threshold showing” that he or she would be entitled to relief to warrant an

evidentiary hearing. Id. Brown, like the defendant in Wade, “has never alleged,

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much less claimed to have evidence tending to show, that the Government

refused to file a motion for suspect reasons such as his race or his religion.” Id.

The factual discrepancies between the 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 was the result of an unconstitutional motive. See supra Part III.B. We

hold that the district court did not abuse its discretion because, as the district

court correctly observed, even “[a]ssuming arguendo that the 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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