ORDER DENYING DEFENDANT VERNET'S REQUEST TO MODIFY SENTENCE

JAMES I. COHN, District Judge.

THIS CAUSE is before the Court upon Defendant Prospere Vernet's Letter Requesting a Modification of his Sentence [DE 740]. The Court has considered the request, the Government's response [DE 749], and is otherwise fully advised in the premises.1

Mr. Vernet asserts that the Court erred in granting a four level leadership role enhancement and that he provided substantial assistance in the prosecution of Mr. Alain Desir.

As to the role enhancement, the Court is clearly without jurisdiction, as Mr. Vernet was sentenced on September 28, 2007, and the time for appealing the sentence has passed, as has the time for filing a motion under 28 U.S.C. § 2255. With respect to Mr. Vernet's cooperation and assistance in the prosecution of Alain Desir, the decision to file a motion pursuant to Federal Rule of Criminal Procedure 35(b) rests within the sound discretion of the government. The Court may only compel the government to file a Rule 35(b) motion based on substantial assistance in two circumstances: (1) when the government's refusal to do so results from an unconstitutional motivation; or (2) where the defendant's plea agreement contains an explicit government promise to file a substantial assistance motion. See Wade v. United States, 504 U.S. 181 (1992); United States v. Nealy, 232 F.3d 825 (11th Cir. 2000). Mr. Vernet has failed to prove either circumstance. In addition, the time limitation for filing a Rule 35(b) motion has expired. Therefore, the Court is without jurisdiction to reduce Mr. Vernet's sentence on this ground.

Accordingly, it is thereupon

ORDERED AND ADJUDGED that Defendant Prospere Vernet's Request to Modify Sentence [DE 740] is hereby DENIED.