Case: 18-13759 Date Filed: 09/23/2019 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13759
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-20322-UU-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO PEDROSO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 23, 2019)
Before MARCUS, WILSON and HULL, Circuit Judges.
PER CURIAM:
Armando Pedroso appeals the district court’s denial of his second pro se
motion to compel the government to file a Fed. R. Crim. P. 35 motion or to hold a
hearing on why it has not filed such a motion. After thorough review, we affirm.
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We review the application of law to sentencing issues de novo. United States
v. Manella, 86 F.3d 201, 203 (11th Cir. 1996) (appeal from order granting the
government’s Rule 35 motion). We review the denial of a defendant’s request for a
sentence reduction without an evidentiary hearing for abuse of discretion. See
United States v. Winfield, 960 F.2d 970, 972 (11th Cir. 1992) (appeal from order
denying defendant’s Rule 35 motion seeking reduction of sentence). Issues not
argued in the appellant’s initial brief are deemed abandoned. United States v.
Moran, 778 F.3d 942, 985 (11th Cir. 2015).
Rule 35(b) permits the district court, upon the government’s motion, to reduce
a defendant’s sentence after it has been imposed if the defendant provides substantial
assistance in the investigation or prosecution of another person. Fed. R. Crim. P.
35(b)(1). The government has a power, but not a duty, to file a substantial assistance
motion. Wade v. United States, 504 U.S. 181, 185-86 (1992) (discussing motions
under U.S.S.G. § 5K1.1); see United States v. McNeese, 547 F.3d 1307, 1309 (11th
Cir. 2008) (extending Wade to Rule 35(b) motions). The prosecutorial discretion to
refuse to file a substantial assistance motion is subject to judicial review only if it is
based on an unconstitutional motive, like the defendant’s race or religion, or is not
rationally related to any legitimate government end. Wade, 504 U.S. at 185-86. For
a district court to exercise judicial review over the government’s decision regarding
a substantial assistance motion, the defendant must both allege a constitutionally
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impermissible motive and make a substantial showing that the government’s refusal
to file a substantial assistance motion is because of that motive. United States v.
Dorsey, 554 F.3d 958, 961 (11th Cir. 2009) (addressing a § 5K1.1 motion).
Consequently, when a defendant merely claims he provided substantial assistance or
makes generalized allegations of improper motive, he is not entitled to a remedy or
even to an evidentiary hearing. Wade, 504 U.S. at 186.
Here, the district court did not err in denying Pedroso’s motion without an
evidentiary hearing because Pedroso did not allege that the government’s refusal
was based on an improper motive or not rationally related to any legitimate
government end. Instead, Pedroso argued only that he had provided substantial
assistance through the information he provided about his codefendants and
coconspirators. Moreover, as the record reveals, the government gave its reasons at
sentencing for not moving for a downward departure based on substantial assistance,
explaining that, while Pedroso participated in a debriefing and was generally
truthful, the information he provided did not rise to the level of substantial
assistance, and he had lied about his girlfriend’s involvement in the conspiracy.
Pedroso does not argue that these reasons were not rationally related to a legitimate
government purpose, so he has abandoned that claim on appeal. Id. at 185-86;
Moran, 778 F.3d at 985. As for Pedroso’s claim -- raised for the first time on appeal
-- that the government’s refusal was based on his race and national origin, he is not
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entitled to relief or an evidentiary hearing because he presents only general
allegations of improper motive and has not pointed to any evidence to support his
claim. Wade, 504 U.S. at 186-87. On this record, the district court properly
concluded that it could not review the government’s decision about the filing of a
Rule 35 motion and did not err in denying the motion to compel without an
evidentiary hearing.
Finally, to the extent that Pedroso argues that the government’s refusal to file
a Rule 35 motion constitutes a breach of the plea agreement, that claim also fails.
His plea agreement expressly provided that the government was not required to file
a Rule 35 motion and had the sole, unreviewable discretion to determine whether
Pedroso’s cooperation warranted a substantial assistance motion. The district court
specifically discussed this provision of the plea agreement at the change of plea
hearing, and Pedroso testified that he understood all of the terms and conditions of
his plea agreement and had discussed them with counsel. Because the government
never promised to file a substantial assistance motion, it has not breached the plea
agreement by not moving for a sentence reduction under Rule 35. Accordingly, we
affirm the denial of Pedroso’s motion to compel without an evidentiary hearing.
AFFIRMED.
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