             Case: 12-15417    Date Filed: 08/07/2013   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-15417
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:09-cr-00378-RAL-AEP-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JOHN JAIRO GALLEGO-VALENCIA,
a.k.a. Joda,
a.k.a. Frederico,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                (August 7, 2013)

Before BARKETT, HULL, and JORDAN, Circuit Judges.

PER CURIAM:

      John Gallego-Valencia appeals the district court’s grant of the government’s

Fed. R. Crim. P. 35(b) motion reducing his 168-month sentence of imprisonment
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to a sentence of 135 months’ imprisonment. His original sentence was imposed

after he pled guilty to conspiring to manufacture and distribute cocaine with intent

to import it into the United States. As part of his plea agreement, Gallego-

Valencia agreed to cooperate with the government, who, in turn, promised to

advise the district court of the full extent of his cooperation. Accordingly, about

two years after Gallego-Valencia was originally sentenced, the government filed its

Rule 35(b) motion, explaining that he had been ready and willing to testify against

another individual, Luis Urrego-Contreras, who later pled guilty before trial. The

district court granted the government’s motion on the same day it was filed, after

determining that it did not require any response from Gallego-Valencia or an

evidentiary hearing.

      On appeal, Gallego-Valencia argues that the district court erred by failing to

afford him an opportunity to respond to the government’s Rule 35(b) motion, and

abused its discretion by failing to conduct an evidentiary hearing. He requests that

we remand the proceedings with instructions to reassign them to a different district

court judge.

      We review de novo the application of law to sentencing issues, as well as the

district court’s interpretation of the Federal Rules of Criminal Procedure. United

States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc); United States v.

Manella, 86 F.3d 201, 203 (11th Cir. 1996). We review the district court’s refusal


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to grant an evidentiary hearing for an abuse of discretion. See United States v.

Yesil, 991 F.2d 1527, 1531 (11th Cir. 1992).

      A federal court may not modify a term of imprisonment once it is imposed

unless, among other things, a modification is expressly permitted by Rule 35. 18

U.S.C. § 3582(c)(1)(B). Under Rule 35(b), the district court may reduce a

sentence pursuant to a motion from the government if, after sentencing, the

defendant provided substantial assistance in investigating or prosecuting another

person. Fed. R. Crim. P. 35(b)(1).

      Although the district court granted the government’s Rule 35(b) motion,

Gallego-Valencia argues that by doing so without hearing from him, the district

court unfairly deprived him of a meaningful opportunity to ensure that it was aware

of all aspects of his post-sentencing cooperation. He argues that his plea

agreement required the government to advise the district court of his cooperation,

but that the government’s Rule 35(b) motion did not fully inform the district court

of all that he did. The government’s motion stated only that “the defendant has

continued to assist law enforcement, which assistance, the government views as

substantial assistance. Specifically, the defendant was prepared to testify at the

trial of United States v. Luis Urrego-Contreras, and was transported to the Middle

District of Florida; however, Urrego-Contreras pled guilty before trial.” Gallego-

Valencia contends that, had he been afforded an opportunity to respond, he would


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have advised the district court that the government apprehended Urrego-Contreras

through his cooperation, Urrego-Contreras pled guilty as a direct result of his

willingness to testify, he furnished information regarding a substantial New York

matter, and that he and his family risked danger and injury due to his cooperation.

       We find that our circuit decisions in Yesil and United States v. Hernandez,

34 F.3d 998 (11th Cir. 1994), support the conclusion that the district court erred by

failing to afford Gallego-Valencia an opportunity to respond to the government’s

Rule 35(b) motion.

       In Yesil, the government and two defendants filed a joint Rule 35(b) motion

that provided incomplete details and cursory evidence of the defendants’

cooperation, and, due to the sensitive nature of the ongoing investigation,

requested an in camera evidentiary hearing in order to more fully describe the

defendants’ cooperation. 991 F.2d at 1529–30.1 The district court summarily

denied the motion without an evidentiary hearing. Id. at 1530. We held that the

district court abused its discretion by refusing to conduct an evidentiary hearing,

noting that the district court was obligated to accept the government’s proffer


       1
          The case involved a third defendant also, for whom the government filed a separate
Rule 35(b) motion that provided some facts regarding the defendant’s cooperation. Id. at 1531.
Like Gallego-Valencia here, the defendant requested a hearing in order to fully appraise the
district court of his cooperation. Id. The district court summarily denied the defendant’s motion
for a hearing, but summarily granted the government’s motion for a sentence reduction. Id. The
court also summarily denied the parties’ joint motion to reconsider, which stressed that the Rule
35(b) motion had not fully described the defendant’s cooperation. Id.

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concerning the defendants’ cooperation once it accepted the plea bargains that

required the government to advise it of the nature and extent of the defendants’

cooperation. Id. at 1532. In arriving at this determination, we noted that the plea

bargain severely curtailed the district court’s usual discretion, as it too was bound

by the plea agreement, and that the defendants were entitled to relief once they

were denied the benefits of their plea agreements. Id. We remanded for an

evidentiary hearing before a different district court judge so that the government

could present complete information regarding the nature and extent of the

defendants’ cooperation. Id. at 1533.

      Similarly, in Hernandez, the government filed a Rule 35(b) motion, which

did not detail the defendant’s cooperation for security reasons, but instead,

requested a hearing. 34 F.3d at 999–1000. The district court denied the

government’s Rule 35(b) motion, as well as the government’s subsequent motion

for reconsideration. Id. at 1000. We held that the district court’s refusal to

conduct an evidentiary hearing effectively prevented the government from

presenting its Rule 35(b) motion, and thereby forced a breach of the defendant’s

plea agreement. Id. at 1001. We stressed that our decision stemmed from the

breach of the plea agreement, and that district courts are not categorically required

to grant every request for an evidentiary hearing. Id. at 1001 n.6. Rather, the




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district court could not frustrate a plea agreement in which the government agreed

to file a Rule 35(b) motion. Id.

        Here, because the government’s Rule 35(b) motion appears to have

incompletely conveyed the nature and extent of Gallego-Valencia’s cooperation,

we find that he was denied the benefits of his plea agreement when the district

court ruled on the motion without hearing from him. Accordingly, we vacate the

district court’s order, and remand for further proceedings. On remand,

Gallego-Valencia will have an opportunity to respond in writing to the

government’s Rule 35(b) motion, and may request an evidentiary hearing if he

believes one is required. We leave it to the district court’s discretion whether to

grant an evidentiary hearing should Gallego-Valencia request one as there is no

categorical entitlement to an evidentiary hearing. See Hernandez, 34 F.3d at 1001

n.6.2

        Although Gallego-Valencia makes a conclusory argument that these

proceedings should be transferred to another district court judge, he never provides

any reasons why, in his case, we should conclude that the currently-assigned judge

        2
          The government also argues that even if the district court erred in not allowing Gallego-
Valencia an opportunity to respond, any such error was harmless. The government points to the
district court’s statement in its Rule 35(b) order that under the circumstances, a sentence
reduction of more than two levels would not have comported with the statutory purposes of
sentencing. But the “circumstances” before the district court were those provided by the
government in its Rule 35(b) motion, which is exactly what Gallego-Valencia is challenging here
as being insufficient and not presenting the full extent of his cooperation. Thus, we cannot say
any error was harmless as we simply do not know how the district court would have weighed the
additional information that Gallego-Valencia argues he should have been permitted to present.
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would have difficulty putting his previous views and findings aside or that

reassignment is appropriate to preserve the appearance of justice. See Yesil, 991

F.2d at 1533 n.7. Thus, we see no reason to order the transfer of these proceedings

upon remand.

VACATED AND REMANDED.




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