U.S. v. Martin

Full title: UNITED STATES OF AMERICA v. TAVARES MARTIN

Court: United States District Court, N.D. Mississippi, Greenville Division

Date published: May 7, 2010

CRIMINAL ACTION NO. 4:05CR83-P-D (N.D. Miss. May. 7, 2010)

Opinion

CRIMINAL ACTION NO. 4:05CR83-P-D.

May 7, 2010

ORDER

W. PEPPER JR., District Judge

This cause is before the Court on defendant Martin's Motion for Government to File a Fed.R.Crim.P. Rule 35(b) [50]. The Court, having reviewed the motion, the response, the authorities cited and being otherwise fully advised in the premises, finds as follows, to-wit:

Defendant urges that the government's failure to advise the Court of his cooperation at sentencing and to file a motion pursuant to Rule 35 of the Federal Rules of Civil Procedure amount to an abuse of discretion. He seeks entry of an order compelling the United States Attorney to file a Rule 35 motion.

Under the terms of Martin's plea agreement, the government retained sole discretion regarding the decision whether to move for a downward departure under 5K1.1 or for a reduced sentence under F.R.Cr.P. 35.United States v. Solis, 169 F.3d 224 (5^th Cir. 1999). Therefore, absent a colorable claim of unconstitutional motive, this Court lacks the authority to entertain defendant's claim that the government's failure to file a motion under Rule 35 constituted a breach of the plea agreement. Close examination of the defendant's filings unearths no such allegations. Accordingly, the motion is not well-taken and should be denied.

IT IS, THEREFORE, ORDERED AND ADJUDGED that defendant Martin's Motion for Government to File a Fed.R.Crim.P. 35(b) is not well-taken and should be, and hereby is, DENIED.

SO ORDERED.