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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13767
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20801-WPD-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALBERTO SINESTERRA PENALOSA,
a.k.a. Juanca,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 6, 2019)
Before WILLIAM PRYOR, MARTIN and NEWSOM, Circuit Judges.
PER CURIAM:
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Carlos Penalosa appeals pro se the denial of his motion to compel the
government to request a sentence reduction based on his substantial assistance. See
Fed. R. Crim. P. 35(b). He also argues, for the first time on appeal, that the
government refused to move for a sentence reduction because he is a citizen of
Colombia, Hispanic, and of black descent. We affirm.
We apply two standards of review in this appeal. We review de novo
whether a defendant can compel the government to file a motion to reduce a
sentence based on substantial assistance, see United States v. Forney, 9 F.3d 1492,
1498 (11th Cir. 1993), and whether the government breached its plea agreement,
United States v. Al-Arian, 514 F.3d 1184, 1191 (11th Cir. 2008). We review
arguments raised for the first time on appeal for plain error. United States v.
Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To establish plain error, a defendant
must prove that error occurred that is plain and that affects a substantial right. Id.
The government enjoys discretion in determining whether a defendant has
provided substantial assistance and to move for a sentence reduction on that basis.
Fed. R. Crim. P. 35(b)(1); Wade v. United States, 504 U.S. 181, 185 (1992). A
defendant seeking to compel the government to request a sentence reduction must
make a “substantial threshold showing” that the government refuses to act based
on an unconstitutional motive. Wade, 504 U.S. at 186. The burden also rests with
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the defendant to establish that the government has breached its plea agreement. See
United States v. Gonsalves, 121 F.3d 1416, 1419 (11th Cir. 1997).
The district court committed no error in denying Penalosa’s motion to
compel. The government did not breach its written agreement “to evaluate the
nature and extent of [Penalosa’s] cooperation” and to make “the sole and
unreviewable judgment . . . [whether his] cooperation [was] of such quality and
significance . . . as to warrant . . . [recommending] that [his] sentence be reduced”
based on his substantial assistance. Penalosa presented no evidence that he
provided substantial assistance and, according to the government, Penalosa
provided stale information during his debriefing, by which time three of his
codefendants already had begun to cooperate. Penalosa argues that the government
refused to request a sentence reduction based on racial animus, but his argument is
wholly conclusory and speculative. He cannot obtain relief based on his
“generalized allegations of improper motive.” See Wade, 504 U.S. at 186.
We AFFIRM Penalosa’s sentence.
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United States v. Carlos Alberto Sinesterra Penalosa
Combined Opinion