United States v. White

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 14, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-60987 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTIS JEROME WHITE, JR., also known as Jerome, also known as “J”,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 96-CR-37-4-GG --------------------

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Artis Jerome White, federal prisoner # 21853-018, challenges

the district court’s denial of his request for mandamus relief,

pursuant to 28 U.S.C. § 1361, requiring the Government to file a

FED. R. CRIM. P. 35(b) motion for a reduction of sentence based on

his substantial assistance. He briefs no argument regarding the

denial of his alternative request for a motion to compel, and

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-60987 -2-

that argument is waived. See Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993).

Mandamus may issue only when (1) the plaintiff has a clear

right to relief; (2) the defendant has a clear duty to act; and

(3) there is no other available remedy. Smith v. North La.

Medical Review Ass'n, 735 F.2d 168, 172 (5th Cir. 1984). The

issuance of the writ of mandamus lies within the discretion of

the court to which it is directed. United States v. Denson, 603

F.2d 1143, 1146 (5th Cir. 1979) (en banc).

White has not demonstrated an abuse of discretion on the

district court’s part because, as the district court determined,

he has not shown a clear entitlement to the requested relief nor

a clear duty owed him by the Government. Rule 35 motions for

reductions of sentence are generally filed only at the

Government’s discretion. See FED. R. CRIM. P. 35(b). Contrary to

White’s assertions, the district court correctly found that the

Government did not bargain away this discretion by promising to

file a Rule 35 motion as part of the plea agreement; it promised

only to file a motion for a downward departure, pursuant to

U.S.S.G. § 5K1.1, based on White’s substantial assistance, which

it did. The letters White submitted as proof of the promise of a

Rule 35 motion do not support that assertion; even if a

postjudgment oral promise was made, to obtain relief, White would

have to show that the Government relied on an unconstitutional

motive, such as race or religion, in refusing to file the Rule 35 No. 02-60987 -3-

motion. See Wade v. United States, 504 U.S. 181, 185 (1992).

White has made no allegation or argument regarding an

unconstitutional motive on the Government’s part and thus cannot

demonstrate a clear entitlement to the requested relief. See id.

at 185-86.

The district court did not abuse its discretion in denying

mandamus relief. See Denson, 603 F.2d at 1146. Accordingly, its

judgment is AFFIRMED.