Opinion
Cr. No. 3:09-826 (CMC)
11-06-2013
United States of America, v. Ricardo Simmons, Defendant.
OPINION and ORDER
This matter is before the court on Defendant's Motion to compel the Government to file a Rule 35 motion. ECF No. 1092. This motion is materially indistinguishable from an earlier-filed motion which this court denied by Order filed February 19, 2013. ECF No. 1060.
Under Rule 35(b), the decision to move for reduction of sentence is solely in the discretion of the Government. The district court is without authority to compel such a motion unless Defendant can show that his cooperation is complete, and that the Government breached the plea agreement or that the Government's failure to file resulted from an unconstitutional motive or was not rationally related to a legitimate government goal. Wade v. United States, 504 U.S. 181, 185-86 (1992); United States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001). Defendant must make a "substantial threshold showing," Wade, 504 U.S. at 186, of either of these elements which should constitute more than a recitation of the assistance provided.
Defendant has made no showing of any change in circumstances since the last time he filed a motion to compel. Defendant has neither provided evidence of a breach of the plea agreement by the Government, nor has he made a "substantial threshold showing" relating to either element noted above. Therefore, for this reason,
Defendant's motion is denied.
IT IS SO ORDERED.
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CAMERON McGOWAN CURRIE
SENIOR UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
November 6, 2013