USA v. Jacky Bernard

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 1, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-14700
Non-Argument Calendar
________________________
D. C. Docket No. 03-20551-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACKY BERNARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 1, 2010)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Jacky Bernard, pro se, appeals the district court’s denial of his motion to

-- 1 of 4 --

compel the district court to reduce his sentence in accordance with Fed. R. Crim. P.
35(b).
Bernard argues that the district court had jurisdiction to grant him a sentence
reduction, even if the government opposed the reduction, because the
government’s opposition was not rationally related to any legitimate government
means. Bernard claims that his assistance was substantial and caused another
person to agree to cooperate in the apprehension of others. Moreover, Bernard
claims that he relied on a City of Miami Police Department detective’s promise
that the government would file a Rule 35(b) motion, and since the detective was
acting under the authority of the government, the government should perform its
part of the agreement. Bernard claims that there is overwhelming evidence that his
assistance was substantial, and the district court should have awarded him the
reduction despite the government’s opposition because the government did not
deny that his information was helpful but instead simply stated that he did not give
information about the crime for which the person was actually convicted.
“Upon the government’s motion . . . 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 government has “a
power, not a duty, to file a motion when a defendant has substantially assisted.”
2

-- 2 of 4 --

Wade v. United States, 504 U.S. 181, 185 (1992). However, the government’s
refusal to file a Rule 35(b) motion can be reviewed by the district court, and the
district court can grant relief if it finds that the government’s refusal was based on
an unconstitutional motive, such as race or religion, and therefore not rationally
related to any legitimate government end. Id. at 185-86. See also United States v.
Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (holding that our review of the
government’s refusal to file a Rule 35(b) motion is limited to claims of
unconstitutional motive). Nevertheless, “[a] defendant who merely claims to have
provided substantial assistance or who makes only generalized allegations of an
improper motive is not entitled to a remedy . . . . judicial review is appropriate only
when there is an allegation and a substantial showing that the prosecution refused
to file a substantial assistance motion because of a constitutionally impermissible
motivation.” United States v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009) (citation
and quotations omitted).
Here, Bernard has not shown that the government’s refusal to file a Rule
35(b) motion was based on a constitutionally impermissible motive and we
accordingly find no error in the district court’s denial of Bernard’s motion to
compel a sentence reduction based on substantial assistance.
AFFIRMED.
3

-- 3 of 4 --

4

-- 4 of 4 --