UNITED STATES v. ALLEN (2019)

Calvin Allen, federal prisoner # 18222-043, is serving a 188-month prison sentence following his 2015 guilty-plea conviction for possessing with the intent to distribute a controlled substance. Allen appeals from the district court’s denial of his pro se motion requesting a reduction of sentence pursuant to Federal Rule of Criminal Procedure 35(b). The Government has filed a motion to dismiss the appeal or, in the alternative, for summary affirmance in light of Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992).

This court reviews “de novo whether the district court had jurisdiction to resentence.” United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997). Resentencing under Rule 35(b) “is permitted only on the Government’s motion.” United States v. Early, 27 F.3d 140, 141 (5th Cir. 1994). Thus, to the extent that Allen’s motion sought resentencing pursuant to Rule 35(b), the motion “was unauthorized and without a jurisdictional basis.” Id.

To the extent that Allen’s motion sought review of the Government’s failure to file its own Rule 35(b) motion, the district court likewise had no authority to grant relief. “The government’s refusal to file a Rule 35(b) motion is not reviewable unless that refusal is based on an unconstitutional motive,” as discussed in Wade, 504 U.S. at 185-86, 112 S.Ct. 1840, or “the government has ‘bargain[ed] away’ its discretion.” United States v. Grant, 493 F.3d 464, 467 (5th Cir. 2007) (quoting United States v. Price, 95 F.3d 364, 368 (5th Cir. 1996)). Allen has not shown that either circumstance was present here.

In sum, Allen’s Rule 35(b) motion was unauthorized, and the district court lacked jurisdiction to consider it or to review the Government’s failure to file its own Rule 35(b) motion. See Grant, 493 F.3d at 467; Early, 27 F.3d at 141. The judgment is AFFIRMED on that basis. The Government’s motion to dismiss the appeal or, alternatively, for summary affirmance is DENIED as moot.

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.