FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 3, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10093

Non-Argument Calendar

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D. C. Docket No. 95-00022-CR-T-EAJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT MCNEESE,

a.k.a. Bobby,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 3, 2008)

Before BIRCH, PRYOR and FAY, Circuit Judges.

PER CURIAM:
Robert McNeese appeals the district court’s grant of the government’s

motion to reduce McNeese’s sentence as to a specific count of his multi-count

judgment, pursuant to Fed.R.Crim.P. 35(b). McNeese argues that the government

did not have the authority to limit the Rule 35(b) motion to one count and the

district court retained authority to reduce the sentence as to both counts of

conviction. For the reasons set forth below, we affirm.

I.

A federal grand jury returned a four-count indictment naming three

codefendants and charging McNeese with (1) conspiracy to import heroin, in

violation of 21 U.S.C. § 963 (“Count 1”); and (2) importing heroin, in violation of

21 U.S.C. § 952 (“Count 3”). A jury found McNeese guilty of both charges. The

district court sentenced McNeese to life imprisonment as to Count 1 and 240

months’ imprisonment as to Count 3, with these terms to run concurrently.

The government submitted a “Motion for Reduction in Sentence as to Count

One of the Judgment,” pursuant to Rule 35(b). The government explained that

McNeese had rendered substantial assistance to authorities in the Northern District

of Iowa. The government recommended that the district court reduce McNeese’s

life sentence as to Count 1 to 240 months’ imprisonment.

At a hearing on the government’s Rule 35(b) motion, the district court noted

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that the government had limited its motion to Count 1. McNeese argued that

specifying the term to which its Rule 35(b) motion should apply was beyond the

scope of the government’s discretion. McNeese likewise argued that the district

court retained authority to reduce the terms of imprisonment imposed for both

Counts 1 and 3, as “once the Rule 35[(b)] motion is made[,] the door is open for

the Court to impose whatever sentence it wants in connection with that particular

case.” The government responded that, because the discretion to file a Rule 35(b)

motion rested with the government, “[it could] make the motion as [it saw] fit.”

The government also responded that it had found no case law to the contrary. The

government explained that it directed the motion to a specific count because “[it

felt] that the defendant’s cooperation deserve[d] something less than a life

sentence,” but “[didn’t] feel it deserve[d] something less than a 20 year sentence.”

The district court asked the parties to brief the matter.

In its memorandum, the government argued that the district court’s

discretion to reduce the defendant’s sentence for his provision of substantial

assistance arose only upon motion by the government and that the government’s

decision not to file such a motion was reviewable only when based on

unconstitutional motives not at issue here. In his memorandum, McNeese

acknowledged that it appeared that we had yet to consider whether the government

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could specify to which term its Rule 35(b) should apply. McNeese argued,

however, that the government’s motivation, namely controlling McNeese’s

ultimate sentence, was improper.

The district court granted the government’s Rule 35(b) motion in part,

reducing the sentence for Count 1 to 120 months’ imprisonment, but rejected

McNeese’s argument that the motion applied to both terms of imprisonment. To

the latter end, the district court reasoned that the government had the authority to

select the sentence to which its motion should apply.

II.

Pursuant to Rule 35(b), “[u]pon the government’s motion made within one

year of sentencing, the court may reduce a sentence if the defendant, after

sentencing, provided substantial assistance in investigating or prosecuting another

person.” Fed.R.Crim.P. 35(b)(1). The Supreme Court has held that this statute

gives the government “a power, not a duty, to file a motion when a defendant has

substantially assisted.” Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840,

1843, 118 L.Ed.2d 524 (1992) (considering motions filed pursuant to 18 U.S.C.

§ 3553(e) and U.S.S.G. § 5K1.1). Indeed, the Supreme Court held that the

government’s discretion is such that federal district courts may review the

government’s refusal to file a substantial-assistance motion only if the defendant

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first makes a “substantial threshold showing” that the refusal was based upon an

unconstitutional motive, such as the defendant’s race or religion. Id. at 185-86,

112 S.Ct. at 1843-44. We have held that arguments that the government had

motivations beyond the defendant’s provision of substantial assistance do not

satisfy the Supreme Court’s unconstitutional-motive standard for review. See

United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000). Specifically, a

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defendant argued that the government could not refuse to file a substantialassistance motion for “reasons other than the nature of [defendant’s] substantial

assistance.” Id. We held that this contention was not supported by the Supreme

Court’s aforementioned ruling and “[was] contrary to the broad grant of

prosecutorial discretion recognized by this [C]ourt.” Id.

III.

The government did not overstep its discretion by specifying the term to

which its Rule 35(b) motion should apply, and the district court did not err in

acting in accordance with this specification. The Supreme Court and this Court

long have recognized that the government discretion to seek a substantial-

 McNeese offers United States v. Chavarria-Herrara, 15 F.3d 1033 (11th Cir. 1994), for 1

the contrary holding that the government cannot consider anything other than the defendant’s

provision of substantial assistance. In that case, however, we considered an argument that the

district court considered other factors in determining the extent of the reduction, rather than that

the government considered other factors in determining whether to request the reduction, and

held that this was error. Id. at 1037. McNeese has not challenged the district court’s

motivations. Accordingly, this case is inapplicable. 

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assistance reduction is vast. See Wade, 504 U.S. at 185, 112 S.Ct. at 1843. There

is no reason to believe that this discretion should not extend to deciding to which

term the Rule 35(b) should be applied.

To the extent that the instant issue is whether the government erred in

declining to file a Rule 35(b) motion with regard to Count 3 also, we lack

jurisdiction to review that choice because McNeese has not shown that the

government had unconstitutional motives. See id. at 185-86, 112 S.Ct. at 1843-44.

The government’s desire to retain some control over McNeese’s sentence is not of

the same ilk as those unconstitutional motives described by the Supreme Court,

namely the defendant’s race or religion. See id. Also, we specifically have

rejected the contention that all reasons beside the defendant’s provision of

substantial assistance are unconstitutional. See Nealy, 232 F.3d at 831.

Accordingly, because the government had the discretion to direct the Rule 35(b)

motion to a specific count and did not have unconstitutional motives in doing so,

we affirm.

AFFIRMED.

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