Opinion
CR No. 3:10-711-JFA
08-14-2012
UNITED STATES OF AMERICA v. JIMMY ANDRE ROGERS
ORDER
The defendant has filed a motion requesting that the court compel the government to file a motion under Rule 35 of the Federal Rules of Criminal Procedure. The government has responded to the motion to compel indicating that contrary to the defendant's assertions, the defendant has not provided substantial assistance to the government in investigating or prosecuting another person.
The government ultimately retains discretion to determine whether to actually file a motion for a reduction of sentence. This court can only review the government's refusal to do so if such decision was based upon an unconstitutional motive or upon a factor not rationally related to a legitimate governmental end. Wade v. United States, 504 U.S. 181 (1992); United States v. Divens, 650 F.3d 343, 345 (4th Cir. 2011) (citing United States v. Butler, 272 F.3d 683 (4th Cir. 2001)).
Because the defendant has failed to make a substantial threshold showing under Wade, the motion to compel the government to file a Rule 35 motion must be denied (ECF No. 81).
IT IS SO ORDERED.
August 14, 2012
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge