USA v. Oral Roger Russell

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 28, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Case No. 11-13900
Non-Argument Calendar
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D.C. Docket No. 9:06-cr-80115-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORAL ROGER RUSSELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 28, 2012)
Before BARKETT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Oral Roger Russell, proceeding pro se, appeals the district court’s denial of
his motion to compel the government to file a sentence-reduction motion. Russell

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argues that, despite the substantial assistance he provided law enforcement, the
government breached its oral promise to file a sentence-reduction motion on his
behalf.
Pursuant to a written plea agreement, Russell pleaded guilty to one count of
possession with intent to distribute at least fifty grams of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and was sentenced to 262 months
imprisonment. The plea agreement made clear that the government reserved the
right to evaluate the extent and nature of Russell’s cooperation and, within its
discretion, could make a motion pursuant to Rule 35 of the Federal Rules of
Criminal Procedure for a sentence reduction. The agreement further stated that
“nothing in this Agreement may be construed to require [the government] to file
such a motion,” and that the government’s evaluation of Russell’s cooperation
could not be challenged. Russell signed the agreement. And the district court
accepted his plea as made knowingly and voluntarily, and without any promise not
contained in the agreement itself.
Federal Rule of Civil Procedure 35(b) provides that “[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). This
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Court has afforded the government “virtually unfettered discretion” in determining
whether to file a Rule 35(b) sentence-reduction motion. Murphy v. United States,
634 F.3d 1303, 1313 (11th Cir. 2011).
To be sure, the government cannot refuse to file a substantial-assistance
motion on unconstitutional grounds, such as would happen if the refusal were
motivated by racial or religious discrimination or lacked a rational relation to a
legitimate government end. Wade v. United States, 504 U.S. 181, 185–86, 112 S.
Ct. 1840, 1843–44 (1992). But where a defendant’s claim rests solely on the
allegation that he provided substantial assistance, or on generalized allegations of
an improper motive, we can only conclude that the government’s decision not to
move was based “simply on its rational assessment of the cost and benefit that
would flow from moving.” Id. at 187, 112 S. Ct. at 1844.
Russell has not offered any basis for disregarding the plain terms of his plea
agreement, in which the government specifically disclaimed any obligation not
contained therein. Nor has he made a threshold showing that the government’s
refusal to move for the sentence reduction was based on unconstitutional grounds.
See id. at 185–86, 112 S. Ct. at 1843–44. As a result, he has not shown grounds
for relief.
AFFIRMED.
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