UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-6560 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus

ANTHONY ANDREWS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (CR-01-27-F; CA-02-44-7-F)

Submitted: September 27, 2004 Decided: November 3, 2004

Before LUTTIG, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Anthony Andrews, Appellant Pro Se. Rudolf A. Renfer, Jr.,

Assistant United States Attorney, Raleigh, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

- 2 - PER CURIAM: Anthony Andrews appeals from the district courtÂ’s denial of his motion for reconsideration of his motion to compel the

Government to file a Fed. R. Crim. P. 35(b) motion on his behalf

and the denial of his motion to recuse the district judge for not

issuing a ruling on his motions as moot. Finding no error, we

affirm. AndrewsÂ’ motion to compel alleged that the Government refused to file a motion to reduce his sentence pursuant to Rule 35(b) due to unconstitutional motives. The district court found

that Andrews was subject to an earlier version of Rule 35(b) that

mandated any Government motion to reduce a defendantÂ’s sentence

must be filed within one year of the imposition of that sentence.

Because the court found that any decision the Government made with

regard to AndrewsÂ’ assistance was made outside that one-year

window, the court found Andrews could not have benefitted from a

Rule 35(b) motion and, hence, his motion to compel was without

merit. “[A] claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing. Nor would additional but

generalized allegations of improper motive.” Wade v. United

States

, 504 U.S. 181, 186 (1992). A defendant must make a

“substantial threshold showing” of improper motive to warrant an

- 3 - evidentiary hearing. Id. “This court has followed the Supreme Court’s lead and strictly interpreted the Wade

exceptions, holding that the decision not to make a downward departure motion is

properly within the government’s discretion.” United States v. Butler

, 272 F.3d 683, 686 (4th Cir. 2001). Thus, unless the

GovernmentÂ’s refusal to file a motion is based on an

unconstitutional motive such as race or religious animus, or is not

rationally related to a legitimate governmental end, district

courts are without authority to review a prosecutorÂ’s discretionary

decision not to file a substantial assistance motion. Id. Because Andrews has failed to make a substantial threshold showing that the GovernmentÂ’s decision not to file a Rule

  (b) motion was due to unconstitutional motives, we find it unnecessary to determine which version of Rule 35(b) applies to Andrews. Although Andrews alleges the GovernmentÂ’s decision not to

allow him to substantially assist in the prosecution of two

defendants violated Wade

, the Government states it chose not to use the information Andrews provided because it was either unnecessary

or cumulative. Based on the record before us, we find that Andrews

has failed to make the required threshold showing that the

GovernmentÂ’s decision was motivated by unconstitutional reasons.

Because we are able to affirm the judgment of a district court on

any basis supported by the record, we affirm the district courtÂ’s

denial of AndrewÂ’s motion for reconsideration on this basis. See

- 4 - Eisenberg v. Wachovia Bank, N.A. , 301 F.3d 220, 222 (4th Cir. 2002). We also affirm the denial as moot of his motion to recuse

the district judge. Additionally, we deny AndrewsÂ’ motion to

authorize production of transcripts at Government expense, as well

as his motion to place this appeal in abeyance. Finally, we grant

his motion to file a response to the GovernmentÂ’s informal brief.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process. AFFIRMED