At page 1308 Reviewing government discretion in substantial assistance motions23 citing casesapplying the Supreme Court’s rationale in Wade v. United States, 504 U.S. 181 , 112 S.Ct. 1840 , 118 L.Ed.2d 524 (1992), regarding a § 3553(e) motion to find that the government had discretion to direct a 35(b) motion to a specific count
- United States v. Thomas Guerriero, No. 25-10550 (11th Cir. Jan. 22, 2026).unpublished United States v. McNeese, 547 F.3d 1307, 1308 (11th Cir. 2008).
- United States v. Eulogio Garces Hurtado, No. 23-13160 (11th Cir. Jan. 14, 2025).unpublished Rule 35(b), when standing alone, “gives the government a power, not a duty, to file a motion when the defendant has substantially assisted.” United States v. McNeese, 547 F.3d 1307, 1308 (11th Cir. 2008) (quotation omitted).
- United States v. William Obregon Paredes, No. 19-10588 (11th Cir. Nov. 26, 2019).unpublished(extending Wade to Rule 35(b) motions)
- United States v. Jon Scott Merritt, 674 F. App'x 968 (11th Cir. 2017).unpublished(applying Wade in the Rule 35(b) context)
- United States v. Mekael Daniels, 667 F. App'x 760 (11th Cir. 2016).unpublishedThe governipent has “a power, not a duty, to file a motion when a defendant has substantially assisted.” Wade v. United States, 504 U.S. 181, 185 , 112 S.Ct. 1840, 1843 , 118 L.Ed.2d 524 (1992); United States v. McNeese, 547 F.3d 1307, 130…
- United States v. Edward Lezcano, 657 F. App'x 839 (11th Cir. 2016).unpublishedUnited States v. McNeese, 547 F.3d 1307, 1308 (11th Cir. 2008) (per curiam).
- United States v. Thelomat, 186 F. Supp. 3d 1293 (M.D. Ala. 2016).publishedUnited States v. McNeese, 547 F.3d 1307, 1308 (11th Cir.2008).
- United States v. Stanley Bolden, 646 F. App'x 726 (11th Cir. 2016).unpublishedUnited States v. McNeese, 547 F.3d 1307, 1308 (11th Cir.2008).
- United States v. Robert Douyan, 561 F. App'x 838 (11th Cir. 2014).unpublishedUnited States v. McNeese, 547 F.3d 1307, 1308 (11th Cir.2008).
- Rodderick T. Davis v. USA, 558 F. App'x 898 (11th Cir. 2014).unpublished As we have recognized, it gives the government “ ‘a power, not a duty, to file a motion when a defendant has substantially assisted.’ ” United States v. McNeese, 547 F.3d 1307, 1308 (11th Cir.2008) (quoting Wade v. United States, 504 U.S.…
Show 13 more citing cases
- United States v. Kenneth Francis Collins, 524 F. App'x 573 (11th Cir. 2013).unpublishedSee Wade v. United States, 504 U.S. 181, 185 , 112 S.Ct. 1840, 1843 , 118 L.Ed.2d 524 (1992) (discussing prosecutorial discretion and substantial assistance motions under 18 U.S.C. § 3553 (e)) and U.S.S.G. § 5K1.1; United States v. McNeese…
- United States v. Jose Gabriel Uribe, 486 F. App'x 823 (11th Cir. 2012).unpublished(applying Wade in the Rule 35(b) context)
- United States v. Darrell Mells, 481 F. App'x 563 (11th Cir. 2012).unpublished(applying Wade to a Rule 35(b) motion)
- Krecht v. United States, 846 F. Supp. 2d 1268 (S.D. Fla. 2012).publishedAs such, “federal district courts may review the government’s refusal to file a substantial-assistance motion only if the defendant first makes a ‘substantial threshold showing’ that the refusal was based upon an unconstitutional motive, s…
- United States v. Quinones, 431 F. App'x 798 (11th Cir. 2011).unpublishedUnited States v. McNeese, 547 F.3d 1307, 1308 (11th Cir.2008).
- United States v. Robinson, 426 F. App'x 849 (11th Cir. 2011).unpublishedUnited States v. McNeese, 547 F.3d 1307, 1308 (11th Cir.2008).
- United States v. Pantaleon Acevedo, No. 08-15195 (11th Cir. Feb. 9, 2009).unpublishedUnited States v. McNeese, 547 F.3d 1307, 1308-09 (11th Cir. 2008).
- United States v. Carson William Matute-Rankin, 702 F. App'x 969 (11th Cir. 2017).unpublished(Rule 35(b) “gives the government ‘a power, not a duty, to file a motion when a defendant has substantially assisted.’)
- United States v. Wayne Anderson, 554 F. App'x 872 (11th Cir. 2014).unpublishedSee United States v. McNeese, 547 F.3d 1307, 1308 (11th Cir.2008) (per curiam) (addressing Rule 35); Forney, 9 F.3d at 1500 (addressing § 5K1.1).
- United States v. Clara Ellen Hansen, 448 F. App'x 13 (11th Cir. 2011).unpublished(stating that given government’s discretion in such matters, courts may review “the government’s refusal to file a substantial-assistance motion only if the defendant first makes a ‘substantial threshold showing’ that th…)
- United States v. Florentino Mancera-Patino, 401 F. App'x 487 (11th Cir. 2010).unpublished(applying the Supreme Court’s rationale in Wade v. United States, 504 U.S. 181 , 112 S.Ct. 1840 , 118 L.Ed.2d 524 (1992), regarding a § 3553(e) motion to find that the government had discretion to direct a 35(b) motion t…)
- United States v. Theodis Jones, 368 F. App'x 959 (11th Cir. 2010).unpublished(applying Wade in the Rule 35(b) context)
- United States v. Kevin Hickey, No. 17-14055 (11th Cir. Apr. 20, 2018).unpublished(applying Wade in the Rule 35(b) context)
At page 1309 Defining scope of prosecutorial discretion in assistance motions22 citing casesapplying Wade limitations on judicial review to Rule 35(b) substantial assistance motions
- United States v. Anthony Sanchez, No. 23-13421 (11th Cir. July 22, 2024).unpublished (The Supreme Court and this Court long have recognized that the government discretion to seek a substantial-assis- tance reduction is vast.)
- United States v. Erika Day, 162 F.4th 1136 (11th Cir. 2025).publishedWe have held that the government has discretion to “direct [a] Rule 35(b) motion to a specific count.” United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008).
- United States v. Blayne Davis, No. 17-12224 (11th Cir. Dec. 26, 2018).unpublishedUnited States v. McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008).
- United States v. Pedro Gallego, No. 17-14513 (11th Cir. Aug. 10, 2018).unpublished Because district courts can only reduce a defendant’s sentence for substantial assistance based on a request from the government, see id., Rule 35(b) reflects a “broad grant of prosecutorial discretion.” United States v. McNeese, 547 F.3d…
- United States v. Leonard Bell, 465 F. App'x 892 (11th Cir. 2012).unpublished(applying Wade to Rule 35(b) motions)
- United States v. Alfonso McCloud, 452 F. App'x 899 (11th Cir. 2012).unpublishedWade v. United States, 504 U.S. 181, 185 , 112 S.Ct. 1840 , 118 L.Ed.2d 524 (1992); United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir.2008).
- United States v. Clark, 446 F. App'x 159 (11th Cir. 2011).unpublishedWade v. United States, 504 U.S. 181, 185 , 112 S.Ct. 1840 , 118 L.Ed.2d 524 (1992); United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir.2008).
- United States v. Parra-Mercado, 435 F. App'x 812 (11th Cir. 2011).unpublishedWade v. United States, 504 U.S. 181, 185 , 112 S.Ct. 1840 , 118 L.Ed.2d 524 (1992); United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir.2008).
- United States v. Henry Claude Agnew, 382 F. App'x 843 (11th Cir. 2010).unpublished(applying Wade limitations on judicial review to Rule 35(b) substantial assistance motions)
- United States v. Tanya Renee Flucker, 343 F. App'x 474 (11th Cir. 2009).unpublished“The Supreme Court and this Court long have recognized that the government discretion to seek a substantial-assistance reduction is vast.” United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir.2008).
Show 12 more citing cases
- Kennemore v. United States, No. 6:20-cv-08018 (N.D. Ala. Feb. 25, 2025).(extending Wade to Rule 35(b) motions)
- United States v. Andrew Newburg, No. 24-11354 (11th Cir. Nov. 12, 2024).unpublishedSee McNeese, 547 F.3d at 1309; Forney, 9 F.3d at 1502 .
- United States v. Armando Pedroso, No. 18-13759 (11th Cir. Sept. 23, 2019).unpublished(extending Wade to Rule 35(b) motions)
- Jimmy Lee Lanier v. United States, No. 18-10382 (11th Cir. Apr. 24, 2019).unpublished(extending Wade to Rule 35(b) motions)
- United States v. Michael Ali Bryant, Sr., No. 17-13790 (11th Cir. June 15, 2018).unpublished(extending Wade to Rule 35(b) motions)
- United States v. Roy Burns, 604 F. App'x 831 (11th Cir. 2015).unpublished(applying Wade to Rule 35(b) motions)
- United States v. Pierre J. Cannon, 443 F. App'x 464 (11th Cir. 2011).unpublished(applying Wade limitations on judicial review to Rule 35(b) substantial assistance motions)
- United States v. Jose Ernesto Perez-Morales, 322 F. App'x 713 (11th Cir. 2009).unpublished(The government’s desire to retain some control over McNeese’s sentence is not of the same ilk as those unconstitutional motives described by the Supreme Court, namely the defendant’s race or religion.)
- United States v. Scott W. Rothstein, 939 F.3d 1286 (11th Cir. 2019).published(applying this principle to a motion under Rule 35(b))
- United States v. Frederick Charles Hall, 476 F. App'x 211 (11th Cir. 2012).unpublished(applying Wade to Rule 35(b) motions)
- United States v. Robis Osuel Solis-Caceres, 440 F. App'x 892 (11th Cir. 2011).unpublished(applying Wade to Rule 35(b) motions)
- United States v. Nance, 426 F. App'x 801 (11th Cir. 2011).unpublished(applying Wade to Rule 35(b) motions)
Other citing cases
- Membache, Jimmy v. United States, No. 1:24-cv-21255 (S.D. Fla. Apr. 5, 2024).
- United States v. Walter Johns, 548 F. App'x 581 (11th Cir. 2013).unpublished
v.
Robert McNEESE, A.K.A. Bobby, Defendant-Appellant
Robert McNeese appeals the district court’s grant of the government’s motion to reduce McNeese’s sentence as to a specific count of his multi-count judgment, pursuant to Fed.R.Crim.P. 35(b). McNeese argues that the government did not have the authority to limit the Rule 35(b) motion to one count and the district court retained authority to reduce the sentence as to both counts of conviction. For the reasons set forth below, we affirm.
I.
A federal grand jury returned a four-count indictment naming three codefen-dants and charging McNeese with (1) conspiracy to import heroin, in violation of 21 U.S.C. § 963 (“Count 1”); and (2) importing heroin, in violation of 21 U.S.C. § 952 (“Count 3”). A jury found McNeese guilty of both charges. The district court sentenced McNeese to life imprisonment as to Count 1 and 240 months’ imprisonment as to Count 3, with these terms to run concurrently.
[*1308] The government submitted a “Motion for Reduction in Sentence as to Count One of the Judgment,” pursuant to Rule 35(b). The government explained that McNeese had rendered substantial assistance to authorities in the Northern District of Iowa. The government recommended that the district court reduce McNeese’s life sentence as to Count 1 to 240 months’ imprisonment.
At a hearing on the government’s Rule 35(b) motion, the district court noted that the government had limited its motion to Count 1. McNeese argued that specifying the term to which its Rule 35(b) motion should apply was beyond the scope of the government’s discretion. McNeese likewise argued that the district court retained authority to reduce the terms of imprisonment imposed for both Counts 1 and 3, as “once the Rule 35[ (b) ] motion is made[,] the door is open for the Court to impose whatever sentence it wants in connection with that particular case.” The government responded that, because the discretion to file a Rule 35(b) motion rested with the government, “[it could] make the motion as [it saw] fit.” The government also responded that it had found no case law to the contrary. The government explained that it directed the motion to a specific count because “[it felt] that the defendant’s cooperation deserve[d] something less than a life sentence,” but “[didn’t] feel it deserve[d] something less than a 20 year sentence.” The district court asked the parties to brief the matter.
In its memorandum, the government argued that the district court’s discretion to reduce the defendant’s sentence for his provision of substantial assistance arose only upon motion by the government and that the government’s decision not to file such a motion was reviewable only when based on unconstitutional motives not at issue here. In his memorandum, McNeese acknowledged that it appeared that we had yet to consider whether the government could specify to which term its Rule 35(b) should apply. McNeese argued, however, that the government’s motivation, namely controlling McNeese’s ultimate sentence, was improper.
The district court granted the government’s Rule 35(b) motion in part, reducing the sentence for Count 1 to 120 months’ imprisonment, but rejected McNeese’s argument that the motion applied to both terms of imprisonment. To the latter end, the district court reasoned that the government had the authority to select the sentence to which its motion should apply.
II.
Pursuant to Rule 35(b), “[u]pon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.” Fed.R.Crim.P. 35(b)(1). The Supreme Court has held that this statute gives the government “a power, not a duty, to file a motion when a defendant has substantially assisted.” Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992) (considering motions filed pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1). Indeed, the Supreme Court held that the government’s discretion is such that federal district courts may review the government’s refusal to file a substantial-assistance motion only if the defendant first makes a “substantial threshold showing” that the refusal was based upon an unconstitutional motive, such as the defendant’s race or religion. Id. at 185-86, 112 S.Ct. at 1843-44. We have held that arguments that the government had motivations beyond the defendant’s provision of substantial assistance do not satisfy the Supreme Court’s unconstitutional-motive standard for review.[*1309] See United States v. Nealy, 232 F.3d 825, 831 (11th Cir.2000). [1] Specifically, a defendant argued that the government could not refuse to file a substantial-assistance motion for “reasons other than the nature of [defendant’s] substantial assistance.” Id. We held that this contention was not supported by the Supreme Court’s aforementioned ruling and “[was] contrary to the broad grant of prosecutorial discretion recognized by this [C]ourt.” Id.
III.
The government did not overstep its discretion by specifying the term to which its Rule 35(b) motion should apply, and the district court did not err in acting in accordance with this specification. The Supreme Court and this Court long have recognized that the government discretion to seek a substantial-assistance reduction is vast. See Wade, 504 U.S. at 185, 112 S.Ct. at 1843. There is no reason to believe that this discretion should not extend to deciding to which term the Rule 35(b) should be applied.
To the extent that the instant issue is whether the government erred in declining to file a Rule 35(b) motion with regard to Count 3 also, we lack jurisdiction to review that choice because McNeese has not shown that the government had unconstitutional motives. See id. at 185-86, 112 S.Ct. at 1843-44. The government’s desire to retain some control over McNeese’s sentence is not of the same ilk as those unconstitutional motives described by the Supreme Court, namely the defendant’s race or religion. See id. Also, we specifically have rejected the contention that all reasons beside the defendant’s provision of substantial assistance are unconstitutional. See Nealy, 232 F.3d at 831. Accordingly, because the government had the discretion to direct the Rule 35(b) motion to a specific count and did not have unconstitutional motives in doing so, we affirm.
AFFIRMED.
. McNeese offers United States v. Chavarria-Herrara, 15 F.3d 1033 (11th Cir.1994), for the contrary holding that the government cannot consider anything other than the defendant's provision of substantial assistance. In that case, however, we considered an argument that the district court considered other factors in determining the extent of the reduction, rather than that the government considered other factors in determining whether to request the reduction, and held that this was error. Id. at 1037. McNeese has not challenged the district court’s motivations. Accordingly, this case is inapplicable.