[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14234 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 26, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:06-cr-00027-MP-AK-3
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
FREDERICK CHARLES HALL,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 26, 2012)
Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Frederick Charles Hall appeals the district court’s denial of his pro se motion
to compel specific performance of a plea agreement. Specifically, he argues that the
government breached the plea agreement by failing to adequately inform the district
court of his substantial assistance, either through a detailed pre-sentencing U.S.S.G.
§ 5K1.1 motion or a Fed.R.Crim.P. 35(b) motion to reduce his sentence. After
thorough review, we affirm.
We review de novo whether the government breached a plea agreement. United
States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). The district court’s
factual findings on the scope of the agreement, however, are reviewed only for clear
error. Raulerson v. United States, 901 F.2d 1009, 1012 (11th Cir.1990).
In determining whether the government breached a plea agreement, we must
first “determine the scope of the government’s promises.” United States v. Copeland,
381 F.3d 1101, 1105 (11th Cir. 2004). In so doing, we consider whether the
government’s actions at sentencing were objectively inconsistent with what the
defendant reasonably understood when he pleaded guilty. Id. Any ambiguity in the
agreement must be resolved in favor of the defendant. Id. at 1105-06. Further, we
will not accept any “hyper-technical” or “rigidly literal” construction. Id. at 1105.
Where a plea agreement requires the government only to “consider” filing a
substantial assistance motion and places the decision “solely” in its hands, the
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government retains its prosecutorial discretion and does not breach the agreement by
failing to file such a motion. See United States v. Forney, 9 F.3d 1492, 1499-1501
(11th Cir. 1993). In such situations, a district court may review the government’s
refusal to file a substantial-assistance motion only if the defendant first makes a
“substantial threshold showing” that the refusal was based upon an unconstitutional
motive, such as the defendant’s race or religion, or that the refusal was not rationally
related to any legitimate government end. Wade v. United States, 504 U.S. 181,
185-87 (1992) (considering motions filed pursuant to 18 U.S.C. § 3553(e) and
U.S.S.G. § 5K1.1); see also United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir.
2008) (applying Wade to Rule 35(b) motions). Therefore, mere claims that a
defendant provided substantial assistance and generalized allegations of the
government’s improper motive do not “entitle a defendant to a remedy or even to
discovery or an evidentiary hearing.” Wade, 504 U.S. at 186.
Here, the district court did not err in determining that the government complied
with the plea agreement and denying Hall’s motion for specific performance. Based
on the unambiguous terms of the plea agreement, the government merely agreed to
share its “opinion” regarding the extent of Hall’s cooperation, while retaining its “sole
discretion” as to whether to file a Section 3553(e) substantial assistance motion on his
behalf. The government, in accordance with this agreement, filed a substantial
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assistance motion prior to sentencing, evaluating Hall’s overall assistance as “fair.”
In its motion, the government explained that Hall had truthfully provided details
regarding the scope of the drug conspiracy and had participated in two undercover
drug buys for local police. The court, relying on this motion, imposed a 120-month
sentence, a downward departure from the 240-month statutory minimum sentence.
Relatedly, Hall’s argument that the government was required to file a Rule
35(b) motion also fails. The government retained its discretion to file such a motion,
as explained above, and Hall did not make a substantial showing that the
government’s refusal was not rationally related to a legitimate government end.
Instead, he generally claimed below, and now argues on appeal, that the government’s
failure to adequately reward him for his substantial assistance was in bad faith and
will deter future defendants from cooperating or entering into plea agreements. The
government, however, had already acknowledged Hall’s cooperation through a
pre-sentencing substantial assistance motion, which directly resulted in a 10-year
sentence reduction. Based on the plain language of the plea agreement, nothing more
was required.
Accordingly, we affirm the judgment of the district court.
AFFIRMED.
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