United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD United States District Judge.
CAUSE is before the Court on pro se Defendant Andre
Maurice Walker's “Application for Order to Show
Cause, ” which the Court construes as a motion to
compel a substantial assistance reduction (Doc. 70, Motion),
filed on August 11, 2014. The United States responded in
opposition to the Motion on September 12, 2014. United
States' Response in Opposition to Defendant's
Application for Order to Show Cause (Doc. 73, Response).
Walker subsequently filed Petitioner's Reply to
Government's Response in Opposition for Order to Show
Cause on September 19, 2014 (Doc. 74, Reply). Accordingly,
the Motion is ripe for review.
September 13, 2007, Walker signed a plea agreement and pled
guilty to Possession of a Firearm by a Convicted Felon, in
violation of 18 U.S.C. § 922(g)(1) and § 924(e).
(Doc. 30, Plea Agreement at 1). Walker agreed to
“cooperate fully with the United States in the
investigation and prosecution of other persons.”
Id. at 3. Walker agreed that the United States
Attorney (“USA”) for the Middle District of
Florida would have the sole discretion in determining whether
any cooperation he provided qualified as “substantial
assistance” warranting the filing of a motion to reduce
his sentence. Id. at 4. Walker also agreed not to
“challenge that determination, whether by appeal,
collateral attack, or otherwise.” Id. On
December 1, 2008, the United States requested a two-level
reduction in Walker's offense level for providing
“substantial assistance” to law enforcement.
(See Doc. 49, Motion by the United States for
Reduction of Defendant's Sentence). At Walker's
sentencing hearing, on January 26, 2009, this Court imposed a
prison sentence of 151 months, which was a 37-month reduction
from the 188-month low end of his advisory guidelines range,
and below the 180-month mandatory minimum sentence under 18
U.S.C. § 924(e). Response at 2, 5. On May 6, 2011, the
United States requested an additional sentence reduction for
Walker's “substantial assistance” in the
trial of United States v. Leondray Gibson.
(See Doc. 64, Motion by the United States for
Reduction in Sentence Pursuant to Fed. R. Crim. P. 35(b)).
The Court granted the motion, and on May 11, 2011, further
reduced Walker's sentence to 130 months'
imprisonment. (See Doc. 65, Order Granting
Substantial Assistance Reduction).
2011, attorney Mark Rosenblum inquired about a Rule 35 Motion
for Walker's cooperation in United States v. Jabari
Hird, which Walker had provided prior to sentencing.
Response at 6. Assistant United States Attorney
(“AUSA”) Tyson Duva responded that the
Hird matter had already been recognized, and that it
was not the “office's present intent to file a
third substantial[-]assistance motion.” Id.
Mr. Rosenblum replied that he would “pass the info on
to [Walker].” Id. In 2012, Walker also
assisted the prosecution in the case of State of Florida
v. David Gay. Id. at 7. In that instance,
Assistant State Attorney (“ASA”) Christine Shiver
Brown signed a letter stating that Walker had helped with the
Gay case and that throughout their interaction she
told Walker that it would be up to the AUSA to determine if
any additional credit would be given for his cooperation.
Motion at 6. On September 20, 2013, Walker filed a Motion to
Enforce the Plea Agreement (Doc. 66) because no sentence
reduction was given to him for assisting with the
Hird or Gay cases. See Response at
6-7; Motion to Enforce Plea Agreement at 2. The Court denied
that motion on October 29, 2013. See Order Denying
Motion to Enforce Plea Agreement (Doc. 69). On August 11,
2014, Walker filed the current Motion, contending that there
are no “‘legitimate' reasons for the
[G]overnment to ignore his tremendous efforts and assistance
including in[-]court testimony that has resulted in threats
to his own safety as well as that of his
family.” Motion at 3.
35(b) states that “the court may reduce a sentence if
the defendant, after sentencing, provided substantial
assistance in investigating or prosecuting another
person.” See Federal Rules of Criminal
Procedure, Rule 35(b)(1). However, the Eleventh Circuit Court
of Appeals has long held that the government has “a
power, not a duty, to file a motion when a defendant has
substantially assisted.” See United States v.
Forney, 9 F.3d 1492, 1500 (11th Cir. 1993) (quoting
Wade v. United States, 504 U.S 181, 185 (1992));
see also United States v. Dorsey, 554 F.3d 958,
960-61 (11th Cir. 2009); United States v.
Rojas-Santana, 180 F. App'x 887, 888 (11th Cir.
2006); United States v. Morales, 239 F. App'x
533, 535 (11th Cir. 2007) (per curiam) (internal citations
omitted). Indeed, the government has “virtually
unfettered discretion” in deciding whether to file a
substantial-assistance motion. Murphy v. United
States, 634 F.3d 1303, 1313 (11th Cir. 2011).
defendant cannot show that he is entitled to a remedy,
discovery, or even an evidentiary hearing, either by claiming
generally that he provided substantial assistance, or by
making ‘additional but generalized allegations of
improper motive.'” United States v.
Gilmore, 149 F. App'x 883, 887 (11th Cir. 2005)
(quoting Wade, 504 U.S. at 186). However,
“federal district courts have authority to review a
prosecutor's refusal to file a substantial-assistance
motion and to grant a remedy if they find that the refusal
was based on an unconstitutional motive, such as race or
religion.” United States v. Spann, 2014 WL
7273919 at *2 (11th Cir. 2014) (citing Wade, 504
U.S. at 186). However, such “[J]udicial review is
appropriate only when there is an allegation and a
substantial showing that the prosecution refused to file a
substantial assistance motion because of a constitutionally
impermissible motivation.” Id. (emphasis and
alteration in original) (quoting Dorsey, 554 F.3d at
961). “Absent a ‘substantial threshold showing,
' the defendant has no right to relief, discovery or an
evidentiary hearing.” Id. (citing
Wade, 504 U.S. at 186).
has neither alleged nor made a “substantial threshold
showing” that the Government refused to file a Rule
35(b) motion for unconstitutional reasons such as race or
religion. Walker states that the Government has
“reneg[ed]” on their promise to grant Defendant a
sentence reduction, which is “akin to fraud, ”
and “cannot be tolerated.” Reply at 3. However,
Walker has not provided any evidence that suggests a sentence
reduction was promised to him for assisting with the
Hird or Gay cases. Although Walker asserts
that AUSA Duva promised to “move the court for a Rule
35” for assisting with the prosecution of Jabare Hird,
Reply at 2-3, he points to no evidence to support the
assertion. Also, Walker asserts that ASA Brown made a
recommendation that he “receive reward for his
help” in the Gay case. Id. at 3-4.
However, according to the evidence he provides, ASA Brown
never promised any credit to Walker's sentence.
See Motion at 6. Rather, ASA Brown correctly stated
that any sentence reduction would be up to the AUSA.
Id. In any event, when a plea agreement, such as the
one here, states that it is within the government's sole
discretion to file a motion relating to substantial
assistance, “the government does not breach the
agreement by failing to file such a motion, and the district
court has no jurisdiction to review the claim of
breach.” Spann, 2014 WL 7273919 at *2 (quoting
Morales, 239 F. App'x at 535); see also
Forney, 9 F.3d at 1500-02, n.2. “The substantial
assistance regime is not a spoils system designed simply to
reward a cooperative defendant; it is designed to benefit the
government in its prosecution efforts.”
Gilmore, 149 F. App'x. at 887 (quoting
United States v. Orozco, 160 F.3d 1309, 1316 (11th
Cir. 1998)). Therefore, there is no guarantee that a
defendant will receive a sentence reduction for assisting the
government. Id. at 887-88 (citing Orozco,
160 F.3d at 1316 n.10).
Walker did receive a sentence reduction, on two separate
occasions. Based on his substantial assistance, the Court
reduced Walker's sentence by a total of 58 months from
the 188-month low end of his guidelines range. The Court
finds that Walker is not entitled to an order compelling the
United States to file a third motion for a substantial
assistance reduction, and that no unconstitutional motives
played a part in the United States' decision.
Accordingly, it is hereby
Andre Maurice Walker's Application for Order to Show
Cause, construed as a motion to compel a substantial
assistance reduction (Doc. 70), is DENIED.