                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                JAN 31, 2007
                               No. 06-11807                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                      D. C. Docket No. 93-00532-CR-KLR

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

ARSENIO GARCIA,

                                                             Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (January 31, 2007)

Before ANDERSON, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Arsenio Garcia appeals the district court’s order granting a sentence
reduction based on substantial assistance under Fed.R.Crim.P. 35(b). On appeal,

Garcia argues that the district court erred by considering factors other than his

substantial assistance, such as the nature and circumstances of the underlying

offense and his prior criminal history, in determining the extent of the reduction.

In alternative, he argues the sentencing court erred by reducing his sentence

pursuant to a fixed sentencing policy instead of conducting an individualized

examination of the nature and extent of his substantial assistance.

       We do not generally review the refusal to grant a substantial-assistance

departure or the extent of a departure. United States v. Luiz, 102 F.3d 466, 468

(11th Cir. 1996) (discussing a departure made pursuant to U.S.S.G. § 5K1.1).

However, we do review departures in instances where the defendant alleges that

the district court misapplied the relevant law in granting the departure. United

States v. Manella, 86 F.3d 201, 203 (11th Cir. 1996).

       Because Garcia failed to raise this issue below, the proper standard of review

is for plain error. See United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006)

(stating that when the appealing party does not clearly state the grounds for an

objection in the district court, this Court’s review is limited to plain error). “An

appellate court may not correct an error the defendant failed to raise in the district

court unless there is: (1) error, (2) that is plain, and (3) that affects substantial



                                             2
rights and then only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Massey, 443 F.3d at 818. Under the

third prong of plain error review, it is the defendant who is required to demonstrate

that the plain error affected his substantial rights. United States v. Shelton, 400

F.3d 1325, 1331 (11th Cir. 2005). In other words, it is the defendant’s burden to

show that the error “actually did make a difference.” Id. at 1332 (quotation

omitted).

       Pursuant to Fed.R.Crim.P. 35(b), upon the government’s motion, a court

may reduce a defendant’s sentence after sentencing on the basis of his substantial

assistance. We have held that a district court may reduce a sentence under Rule

35(b) “only to reflect a defendant’s subsequent, substantial assistance in the

investigation or prosecution of another person.” United States v.

Chavarria-Herrara,15 F.3d 1033, 1037 (11th Cir. 1994) (quotation omitted). The

difference between a Rule 35(b) motion and a U.S.S.G. § 5K1.1 substantial-

assistance motion is temporal for § 5K1.1 is used at sentencing to reflect

substantial assistance rendered up until that moment while Rule 35(b) is used after

sentencing to reflect substantial assistance rendered after sentencing. See United

States v. Alvarez, 115 F.3d 839, 842 (11th Cir. 1997). To assist district courts in

evaluating the nature and extent of a defendant’s substantial assistance, U.S.S.G.



                                            3
§ 5K1.1 contains a list of substantial-assistance factors, which instructs courts to

consider:

      (1) the court’s evaluation of the significance and usefulness of the
      defendant’s assistance, taking into consideration the government’s
      evaluation of the assistance rendered;
      (2) the truthfulness, completeness, and reliability of any information
      or testimony provided by the defendant;
      (3) the nature and extent of the defendant’s assistance;
      (4) any injury suffered, or any danger or risk of injury to the defendant
      or his family resulting from his assistance;
      (5) the timeliness of the defendant’s assistance.

U.S.S.G. § 5K1.1(a)(1)-(5). “In determining the extent of a substantial-assistance

departure, the district court must consider the factors set forth in § 5K1.1(a).”

United States v. Martin, 455 F.3d 1227, 1235 (11th Cir. 2006). However, the list

of § 5K1.1(a) factors is not exclusive. United States v. Crisp, 454 F.3d 1285, 1289

(11th Cir. 2006). Nevertheless, when “a district court grants a downward departure

under U.S.S.G. § 5K1.1 or reduces a sentence under Rule 35(b), the sentence

reduction may be based only on factors related to the defendant’s substantial

assistance.” United States v. McVay, 447 F.3d 1348, 1355 (11th Cir. 2006). In

granting the departure, “[t]he sentencing judge must . . . state the reasons for

reducing a sentence under this section.” U.S.S.G. § 5K1.1, comment. (backg’d)

(citing 18 U.S.C. § 3553(c)).

      A court’s decision not to grant as large a departure as is requested, however,



                                           4
can be based on other factors. In Manella, the government filed a Rule 35(b)

motion based on the appellant’s continuing substantial assistance. 86 F.3d at 202.

At the hearing, the government argued for a reduction of 60 months, but the court

only granted a reduction of 7 months. Id. In determining the extent of the

reduction, the court considered the leniency of the original sentence imposed and

the factors listed in 18 U.S.C. § 3553(a)(1) and (2), including the nature and

circumstances of the offense of conviction and the need for the sentence imposed

to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment. Id. On appeal, Manella challenged the order granting the

seven-month reduction, arguing that the court misapplied Rule 35(b) when it

considered factors other than his substantial assistance. Id. In particular, Manella

contended that his substantial assistance was the sole factor that the district court

could consider on a Rule 35(b) motion, and that the court erred when it considered

other factors that militated against a reduction in his case. Id. at 204. We rejected

Manella’s argument concluding that:

      A careful reading of Rule 35(b) reveals that the text does not prohibit
      the consideration of any factor other than the defendant’s substantial
      assistance. The rule states that “[t]he court . . . may reduce a sentence
      to reflect a defendant’s subsequent, substantial assistance . . . .”
      Under this language, the only factor that may militate in favor of a
      Rule 35(b) reduction is the defendant’s substantial assistance.
      Nothing in the text of the rule purports to limit what factors may
      militate against granting a Rule 35(b) reduction. Similarly, the rule

                                           5
      does not limit the factors that may militate in favor of granting a
      smaller reduction.

Id. (quoting Fed.R.Crim.P. 35(b)). We further noted that:

      In this case, the district court weighed several factors against
      Manella’s substantial assistance, including the seriousness of the
      offense and the need for the sentence imposed to promote respect for
      the law and provide just punishment.             The district court’s
      consideration of these factors was based on 18 U.S.C. § 3553, which
      lists factors that the court is required to consider when imposing a
      sentence. Rule 35(b) does not prohibit the consideration of these
      factors in deciding to what extent a defendant’s sentence should be
      reduced for substantial assistance.

Id. at 205 (footnote omitted).

      Contrary to Garcia’s contention otherwise, the district court did not commit

any error, plain or otherwise, when it considered his non-assistance-related factors

in determining the extent of the departure. See Manella, 86 F.3d at 204-05. As we

explained in Manella, the district court was permitted under Rule 35(b), to consider

factors, including those listed in 18 U.S.C. § 3553(a), that militated in favor of

granting a smaller reduction. Id.

      Turning to Garcia’s second argument, that district court erred when it

employed a rigid sentencing practice, we reject this argument because he did not

raise it below and it cannot survive plain error review. See United States v.

Cosgrove, 73 F.3d 297 (11th Cir. 1996) (rejecting similar argument because the

appellants did not object below). While there may have been error in this policy,

                                           6
Garcia has not shown that the error affected his substantial rights. Massey, 443

F.3d at 818; Shelton, 425 F.3d at 1331-32. Garcia has put forth no evidence that

had the court conducted an individualized examination of the nature and extent of

his substantial assistance in accordance with the § 5K1.1(a) factors, it would have

granted him a greater reduction.

      Based on the parties’ briefs and the record, we discern no reversible error.

Accordingly, we affirm the district court’s order reducing Garcia’s sentencing

pursuant to Rule 35(b).

      AFFIRMED.         1




      1
          Garcia’s request for oral argument is denied.

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