USA v. Alfred Brook


UNPUBLISHED OPINION FILED. [10-10804 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 04/12/2011 [10-10804]

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USA v. Alfred Brook Case: 10-10804 Document: 00511419498 Page: 1 Date Filed: 03/22/2011 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-10804 Summary Calendar March 22, 2011 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff­Appellee, v. ALFRED BROOKS, Defendant­Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:98-CR-84-2 Before WIENER, PRADO, and OWEN, Circuit Judges. PER CURIAM:* Alfred Brooks, federal prisoner # 30337-077, appeals the district court's denial of his "Petition for Reduction of Sentence under Informer: Quitan and Popular Action in Accordance to 21 U.S.C. § 886(a), 28 U.S.C. § 994(n), 28 U.S.C. § 2501, and Rule 35(b)." He argues that the Government promised to file a motion for a reduction of his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure based on his substantial assistance in providing information and testifying against another inmate. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. * Case: 10-10804 Document: 00511419498 Page: 2 Date Filed: 03/22/2011 No. 10-10804 Only the Government can file a motion for reduction of a defendant's sentence pursuant to Rule 35(b). United States v. Early, 27 F.3d 140, 141 (5th Cir. 1994) (per curiam). Brooks's motion was "an unauthorized motion which the district court was without jurisdiction to entertain." See id. at 142. Brooks does not argue that the Government's refusal to file such a motion was based on an unconstitutional motive. See, e.g., United States v. Grant, 493 F.3d 464, 467 (5th Cir. 2007). He has also failed to show that the Government bargained away its discretion concerning whether to file the motion. See United States v. Price, 95 F.3d 364, 368 & n.2 (5th Cir. 1996) (per curiam). Accordingly, we affirm the district court's denial of Brooks's motion. See Early, 27 F.3d at 142; see also Brewster v. Dretke, 587 F.3d 764, 769 n.3 (5th Cir. 2009), cert. denied, 130 S. Ct. 3368 (2010). AFFIRMED. 2

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