Opinion
Cr. No. 3:09-826 (CMC)
06-19-2014
United States of America, v. Demos Dewayne McCoy, 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. 1134. The Government has responded in opposition and this matter is ripe for resolution.
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'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, which should constitute more than a recitation of the assistance provided.
Defendant has not made a "substantial threshold showing" relating to either element noted above. Therefore, Defendant's motion is denied.
IT IS SO ORDERED.
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CAMERON McGOWAN CURRIE
SENIOR UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
June 19, 2014