Opinion
4:06-CR-00284-04-BRW
04-23-2014
UNITED STATES OF AMERICA v. CARL TYRELL ROSS
ORDER
Pending is Defendant's Motion for Judicial Review of Government's Failure to File a Rule 35 Sentence Reduction (Doc. No. 206). The Prosecution has responded.
Doc. Nos. 207, 210.
Defendant is entitled to relief if he "makes a 'substantial threshold showing'" that the Prosecution's refusal to file a downward departure was based on a constitutionally impermissible reason (e.g., race or religion). "[A] claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing. Nor would additional but generalized allegations of improper motive." Defendant's "bare assertions of substantial assistance are insufficient to trigger the need for an evidentiary hearing."
Wade v. U.S., 504 U.S. 181, 186 (1992).
Id.
U.S. v. Holdby, 489 F.3d 910, 913 (8th Cir. 2007); United States v. Mullins, 399 F.3d 888, 890 (8th Cir. 2005) (holding that defendant's assertion she provided substantial assistance and was willing to provide continued assistance did "not support any inference the government acted unconstitutionally or irrationally in refusing to move for a downward departure based on substantial assistance"); United States v. Hardy, 325 F.3d 994, 996 (8th Cir. 2003) (finding no irrationality where the government claimed it declined to move for a substantial assistance downward departure because the individuals about which the defendant proffered were arrested or convicted based on other means).
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Accordingly, the Motion is DENIED.
IT IS SO ORDERED this 23rd day of April, 2014.
Billy Roy Wilson
UNITED STATES DISTRICT JUDGE