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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14513
Non-Argument Calendar
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D.C. Docket No. 1:08-cr-20231-PCH-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO GALLEGO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 10, 2018)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Pedro Gallego appeals the district court’s denial of his motion to compel the
government to file a motion to reduce his sentence for substantial assistance under
Federal Rule of Criminal Procedure 35(b)(2). He argues the government’s reasons
for refusing to file a Rule 35 motion were not rationally related to a legitimate
government interest and were in breach of his orally modified plea agreement with
the government. He seeks remand so the district court can conduct an evidentiary
hearing. After careful review, we affirm the district court.1
I.
The parties tell us that in early 2008, Gallego was kidnapped by Roberto
Garcia in retaliation for Gallego robbing a drug stash house. At some point,
Gallego was able to call his cousin to help him escape. But when Gallego’s cousin
arrived, Garcia murdered him. The record does not make clear how, but Gallego
was able to escape from Garcia. Shortly after, he gave a witness statement to
Florida law enforcement about his kidnapping and the murder of his cousin.
Around this same time, the federal government was investigating Gallego.
In March 2008, a federal grand jury issued a seven-count indictment, charging
Gallego with, among other things, conspiracy to possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (“Count One”);
1
Gallego filed two unopposed motions to supplement the record. Because the material
will aid this Court in making an informed decision, his motions are GRANTED. See Schwartz
v. Million Air, Inc., 341 F.3d 1220, 1225 n.4 (11th Cir. 2003).
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conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a) (“Count
Three”); and use and possession of a firearm in connection with a crime of
violence and drug trafficking crime, in violation of 21 U.S.C. § 846 and 18 U.S.C.
§§ 924(c)(1)(A), (2), 1951(a) (“Count Six”). Pursuant to a written plea agreement,
Gallego pled guilty to Counts One, Three, and Six of the indictment in return for
the dismissal of the other four counts. The plea agreement stated, “[i]f in the sole
and unreviewable judgment of [the government] [Gallego’s] cooperation [was] of
such quality and significance to the investigation or prosecution of other criminal
matters as to warrant the court’s downward departure from the advisory sentence
calculated under the Sentencing Guidelines,” the government may file a Rule 35
motion recommending that Gallego’s sentence be reduced. The plea agreement
also set out Gallego’s agreement that the government was not required to file a
Rule 35 motion, and that there were “no other agreements, promises,
representations, or understandings.” The district court accepted Gallego’s guilty
plea.
At the 2008 sentencing hearing, the government moved for a 25 percent
reduction to Gallego’s sentence for substantial assistance based on his testimony
against his codefendants. The district court granted the motion and sentenced
Gallego to 180-months imprisonment followed by five years of supervised release.
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In 2017, Gallego filed a pro se motion to compel the government to file a
Rule 35 motion. In his motion, Gallego said he provided information to law
enforcement that resulted in the arrest of Garcia and ultimately led to his
indictment and guilty plea. Gallego said he provided this information after making
a verbal agreement with the government that they would file a Rule 35 motion in
exchange for his assistance. Gallego says the government violated the terms of
this oral agreement. Gallego asked the district court to require the government to
reduce his sentence by 33 percent and schedule an evidentiary hearing.2 The
government opposed the motion and filed a notice of its decision to not file a Rule
35 motion.
The district court adopted the magistrate judge’s recommendation to deny
Gallego’s motion, and this appeal followed.
II.
We review de novo whether the district court may compel the government to
make a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,
1498 (11th Cir. 1993) (reviewing de novo a district court’s refusal to depart
downward in the absence of a USSG § 5K1.1 motion by the government); United
States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998) (per curiam) (reviewing
de novo the question of whether the government has breached a plea agreement).
2
Gallego filed his motion pro se, but subsequent briefing was handled by attorneys from
the Federal Public Defender’s Office, who continue to represent him on appeal.
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III.
Federal Rule of Criminal Procedure 35(b)(2) governs motions for a sentence
reduction made more than one year after the defendant was sentenced. Broadly,
this rule allows the district court to reduce a defendant’s sentence if he provided
“substantial assistance” in investigating or prosecuting another person. Fed. R.
Crim. P. 35(b)(2). Because district courts can only reduce a defendant’s sentence
for substantial assistance based on a request from the government, see id., Rule
35(b) reflects a “broad grant of prosecutorial discretion.” United States v.
McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008) (per curiam) (quotation omitted).
There are, however, two limits on the government’s discretion. First, courts
may compel the filing of a Rule 35 motion if the government promised as part of a
plea agreement that it would file one. See United States v. Gonsalves, 121 F.3d
1416, 1419 (11th Cir. 1997). Second, the refusal to file a substantial assistance
motion is subject to judicial review if it is based on an unconstitutional motive,
such as the defendant’s race or religion, or is not rationally related to any
legitimate government end. Wade v. United States, 504 U.S. 181, 185–86, 112 S.
Ct. 1840, 1843–44 (1992) (discussing motions under United States Sentencing
Guidelines § 5K1.1); see McNeese, 547 F.3d at 1309 (extending Wade to Rule
35(b) motions). Gallego argues that either of these rationales supports compelling
the government to file a Rule 35 motion in this case.
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Gallego concedes his plea agreement contains clear language leaving the
filing of a Rule 35 motion to the government’s discretion. But Gallego argues the
government orally modified this agreement during a January 2015 phone call with
defense counsel by saying a Rule 35 motion was “not yet ripe” because Garcia’s
trial had not yet happened. In June, Gallego’s counsel emailed an Assistant United
States Attorney (“AUSA”), stating:
We last spoke on [January 21, 2015], at which time you advised that
the [Rule 35 motion] was not yet ripe because Mr. Gallego hadn’t
testified in the state murder case. The case has now concluded. . . .
Please let me know how your office will proceed, or if another AUSA
is handling, please let me know.
The AUSA replied that the case had been transferred to another AUSA. In his
reply, he neither adopted nor disputed Gallego’s counsel’s recollection of the
conversation.
The government and Gallego have different interpretations of what “not yet
ripe” means. Gallego contends the government’s statement that the motion was
“not yet ripe” was an implied promise that it would be ripe after the conclusion of
Florida’s case against Garcia and that the government would file that motion. In
the government’s view, at most “not yet ripe” means that if the government “were
to consider filing a Rule 35(b) motion for Gallego,” the time to consider that
“would be after Gallego had testified in the state murder case.”
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Even accepting there is some ambiguity in the statement “not yet ripe,” those
words do not reflect a promise that the government will file a Rule 35(b) motion.
The more natural understanding is that the government’s decision on whether to
file a motion would wait until after the close of the case against Garcia. The cases
cited by Gallego are distinguishable as each involves a firm commitment by the
government to move for a sentence reduction or to consider moving for one in
good faith. See United States v. Wilson, 390 F.3d 1003, 1011 (7th Cir. 2004)
(noting “district court expressly found that the government had promised Wilson
that it would act in good faith [in considering filing a Rule 35 motion] if he
withdrew his own motion for a downward departure”); United States v. Martin, 25
F.3d 211, 217 (4th Cir. 1994) (finding a promise by the government where it
indicated at sentencing that it “intended to make a substantial assistance motion
within the next year” (quotation omitted)).
Turning to the constitutional limits recognized in Wade, Gallego argues the
government’s refusal to file a Rule 35 motion was not rationally related to a
legitimate government purpose. See Wade, 504 U.S. at 186, 112 S. Ct. at 1844. In
its notice that it would not file a Rule 35 motion, the government said its reasons
for not filing were because Gallego assisted Florida’s investigation of Garcia based
on his status as the crime’s victim and that “as a general matter” the government
“would not file a Rule 35 motion in those circumstances.” The government also
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decided not to file a Rule 35 motion because Gallego began cooperating with
Florida’s investigation of Garcia “before he committed the very serious crimes that
were the subject of” its case against him.
The government has given its reasons for refusing to file a Rule 35 motion,
and Gallego has made no substantial showing that the government’s decision was
based on illegitimate reasons or unconstitutional motives. See id. Because
Gallego failed to make a substantial showing, the district court did not err in
denying his motion to compel the government to file a Rule 35 motion without an
evidentiary hearing.
AFFIRMED.
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