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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10588
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20248-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM OBREGON PAREDES,
a.k.a. Tio Bavario,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 26, 2019)
Before WILSON, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:
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William Obregon Paredes, proceeding pro se, appeals the district court’s
denial of his motion to compel the government to file a motion for sentence
reduction under Federal Rule of Criminal Procedure 35(b). He argues that he is
entitled to such a motion based on the substantial assistance he provided after
sentencing, and that the government’s failure to file a Rule 35(b) motion is a
breach of his plea agreement.
For context, Paredes pled guilty pursuant to a written plea agreement, which
stated
If in the sole and unreviewable judgment of [the
government] the defendant’s cooperation is of such quality
and significance to the investigation or prosecution of
other criminal matters as to warrant the Court’s downward
departure from [the guideline range], [the government]
may make a motion prior to sentencing pursuant to Section
5K1.1 . . . , or subsequent to sentencing pursuant to Rule
35 . . . informing the Court that the defendant has provided
substantial assistance and recommending that the
defendant’s sentence be reduced. The defendant
understands and agrees, however, that nothing in this
agreement requires [the government] to file any such
motions, and that [its] assessment of the quality and
significance of the defendant’s cooperation shall be
binding as it relates to the appropriateness of [its] filing or
non-filing of a motion to reduce sentence.
The presentence investigation report indicated that Paredes’s guideline range
was 135 to 168 months’ imprisonment, the statutory minimum sentence was 10
years’ imprisonment, and the statutory maximum was life imprisonment.
However, because Paredes met the criteria of 18 U.S.C. § 3553(f)(1)–(5), the
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district court could impose a sentence regardless of the statutory minimum. At
sentencing, the government moved for a sentence reduction under U.S.S.G.
§ 5K1.1, based on Paredes’s substantial cooperation with the government prior to
sentencing. Specifically, the government recommended a sentence of 135 months’
imprisonment, reduced by 40 percent to 81 months’ imprisonment. The district
court granted the § 5K1.1 motion. It imposed a downward variance to 120
months’ imprisonment before applying the 40 percent reduction, resulting in a
72-month sentence.
Paredes then filed this motion to compel the government to file a Rule 35(b)
motion, asserting that he had provided substantial assistance after sentencing and
that the government breached the plea agreement by failing to file a Rule 35(b)
motion. The district court denied the motion. Because Paredes has not shown that
the government’s refusal to file a Rule 35(b) motion was motivated by an
unconstitutional motive or constituted a breach of the plea agreement, we affirm
the district court.
I
We review de novo whether the district court may compel the government to
file a substantial-assistance motion. See United States v. Forney, 9 F.3d 1492,
1498 (11th Cir. 1993). Additionally, we review de novo whether the government
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has breached a plea agreement. United States v. Copeland, 381 F.3d 1101, 1104
(11th Cir. 2004).
Under § 5K1.1, a court may depart from the advisory guideline range at
sentencing if the government files a motion “stating that the defendant has
provided substantial assistance in the investigation or prosecution of another.”
U.S.S.G. § 5K1.1. Similarly, Rule 35(b) provides that a district court may reduce a
defendant’s sentence for providing substantial assistance after sentencing, if the
government moves for such a reduction within one year of his sentence. Fed. R.
Crim. P. 35(b)(1). “[T]he government has a power, not a duty, to file a motion
when a defendant has substantially assisted.” United States v. Dorsey, 554 F.3d
958, 961 (11th Cir. 2009) (internal quotation marks omitted).
The government’s discretion to refuse to file a substantial-assistance motion
is subject to judicial review in only two circumstances. First, it is reviewable if the
refusal constitutes a breach of the plea agreement. See United States v. Gonsalves,
121 F.3d 1416, 1419 (11th Cir. 1997) (discussing motions under § 5K1.1).
Second, its discretion is subject to review if it is based on an unconstitutional
motive, such as the defendant’s race or religion. See Wade v. United States, 504
U.S. 181, 185–86 (1992) (discussing motions under § 5K1.1); United States v.
McNeese, 547 F.3d 1307, 1308 (11th Cir. 2008) (extending Wade to Rule 35(b)
motions). We have previously concluded that the government’s refusal to file a
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substantial-assistance motion is not a breach of a plea agreement that merely
provides that the government will “consider” filing such a motion. See Forney, 9
F.3d at 1499–1500 & n.2.
Here, the district court did not err in denying Paredes’s motion. First, he did
not allege or show that the government had an unconstitutional motivation for
refusing to file a Rule 35(b) motion. See Wade, 504 U.S. at 185–86; McNeese, 547
F.3d at 1308. Furthermore, he did not show that the government breached the plea
agreement, as the plain language of the agreement gave the government the
discretion to determine whether to file a Rule 35(b) motion. See Forney, 9 F.3d
at 1499–1500 & n.2. Accordingly, we affirm.
AFFIRMED.
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