Opinion
Cr. No. 3:09-826 (CMC)
07-11-2014
United States of America, v. Clint Anthony Walker, 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. 1155.
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. Indeed, the motions are identical except for the date signed by Defendant. See ECF Nos. 1095 & 10055. Defendant has not provided any 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, Defendant's motion is denied.
The court notes that the Government previously declined to file a motion for relief under Rule 35(b) due to its assertion of Defendant's breach of the plea agreement. See Resp. in Opp. to Mot. to Compel, ECF No. 1099.
IT IS SO ORDERED.
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CAMERON McGOWAN CURRIE
SENIOR UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
July 11, 2014