            Case: 16-13304   Date Filed: 05/17/2017   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13304
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20318-KMM-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                   versus

SANDRA FERNANDEZ VIERA,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 17, 2017)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:
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      Sandra Viera, convicted of conspiracy to commit healthcare fraud and

conspiracy to receive and pay health care kickbacks under 18 U.S.C. §§ 371 and

1349, appeals the district court’s order granting in part and denying in part the

government’s motion for a sentence reduction and evidentiary hearing brought

pursuant to Fed. R. Crim. P. 35(b). On appeal, Viera contends the district court

violated her due process rights by failing to ascertain all the relevant facts of

Viera’s cooperation prior to ordering her sentence reduced. Viera argues the

circumstances of the reduction, in which the district court mischaracterized the

government’s requested reduction as 33% rather than 40%, reveal the district court

failed to undertake an individualized consideration of the sentencing factors before

granting only the 33% reduction. Viera adds that the district court abused its

discretion by failing to hold the evidentiary hearing that both she and the

government requested.

      The district court did not impose the 33% sentence reduction in violation of

law or Viera’s due process rights. The record demonstrates the district court

considered appropriate factors when determining the size of Viera’s reduction, and

Viera failed to show that the district court relied on inaccurate or unreliable

information in determining the size of the reduction. Second, the district court did

not abuse its discretion by declining to conduct an evidentiary hearing to review

the nature and extent of Viera’s cooperation with the government. The


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government fully explained the relevant details of Viera’s cooperation in its

renewed Rule 35(b) motion, and the district court had significant discretion to

determine whether the circumstances warranted an evidentiary hearing.

Accordingly, we affirm.

                                          I.

      In granting a 33% reduction, rather than a 40% reduction, under Rule 35(b),

the district court did not violate Viera’s rights to due process or impose the

reduction in violation of law. 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).

      Upon the government’s motion, a court may reduce a defendant’s sentence if

she “provided substantial assistance in investigating or prosecuting another

person.” Fed. R. Crim. P. 35(b)(1). Generally, we do not review a district court’s

discretionary decision to grant or deny a Rule 35(b) substantial-assistance motion.

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

consider whether a court misapplied Rule 35(b) by considering inappropriate

factors, and thus imposing the reduced sentence “in violation of law.” Id. A

sentencing court may award a reduction only on the basis of a defendant’s

substantial assistance. Id. at 204. However, that court may limit the size of the


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reduction based on its consideration of factors other than the defendant’s

substantial assistance. Id. at 204–05.

      The district court’s imposition of a 33% reduction, rather than a 40%

reduction, did not violate law. First, the district court did not violate Viera’s due

process rights by imposing that sentence reduction. As discussed below, the

district court did not need to hold an evidentiary hearing to determine the extent of

Viera’s cooperation. Additionally, Viera failed to identify the “unreliable

information” the district court rested upon in determining the sentencing reduction

under Rule 35(b). In ruling on the government’s renewed Rule 35(b) motion, the

district court noted its awareness that the government advocated for a 40%

reduction, and clarified that it nonetheless intended to reduce Viera’s sentence by

33%, regardless of the earlier misstatement of the government’s position. The

district court further noted that it considered Viera’s conduct and cooperation when

determining the size of the reduction to impose. Because the district court did not

impose the 33% reduction “in violation of law,” we affirm.

                                          II.

      In ruling on the government’s Rule 35(b) motion, the district court did not

abuse its discretion by denying an evidentiary hearing. We review the district

court’s refusal to grant an evidentiary hearing to determine the merits of a Rule




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35(b) motion for an abuse of discretion. See United States v. Yesil, 991 F.2d 1527,

1531 (11th Cir. 1992).

      In some circumstances, the government’s Rule 35(b) motion fails to fully

explain the details of a defendant’s substantial assistance. For example, in United

States v. Yesil, 991 F.2d at 1528, and United States v. Hernandez, 34 F. 3d 998,

999 (11th Cir. 1994), the defendants pled guilty and agreed to cooperate with the

government in exchange for the government’s promise to advise the district court

of the nature and extent of their cooperation. In both cases, the government

subsequently filed a Rule 35(b) motion that provided incomplete details and

cursory evidence of the defendants’ cooperation, and instead requested a hearing.

Yesil at 1529–30; Hernandez at 999–1000. Both district courts summarily denied

the joint Rule 35(b) motion without an evidentiary hearing. Yesil at 1530;

Hernandez at 1000.

      On appeal, we held in both instances that the district court abused its

discretion by refusing to conduct evidentiary hearings because the district court

was obligated to accept the government’s proffer 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. Yesil at 1531–32;

Hernandez at 1000. In arriving at this determination, we noted that this plea

bargain severely curtailed the district court’s usual discretion because, once


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accepted, the plea agreement also bound the court. Yesil at 1531–32; Hernandez at

1001. Those defendants were entitled to relief once the court denied them the

benefits of their plea agreements.

      Here, the district court did not abuse its discretion or impose the 33%

reduction to Viera’s sentence in violation of her due process rights. Unlike Yesil

and Hernandez, the government did not promise to fully apprise the district court

of any circumstances for a Rule 35(b) motion. Thus, the district court’s discretion

to deny an evidentiary hearing was not curtailed because the court was not bound

by any provision in the plea agreement. See Yesil, 991 F.2d at 1528.

      Second, the government’s written submission outlining Viera’s cooperation

and the potential differences between her cooperation and that of her co-

conspirator sufficed to satisfy any requirement as to the district court’s knowledge.

See Hernandez, 34 F.3d at 1001 n.6. Particularly, Viera’s response provided the

court sufficient information about the wide extent of her cooperation. The district

court and the sentencing court were both aware of other sentencing factors

involved in the offense. Thus, they had the necessary information to determine not

only whether Viera deserved a reduction, but also whether other factors cut against

the size of the reduction requested by the government and Viera.

      Even acknowledging that the district court imposed the 33% reduction prior

to receiving all of the government’s information, none of the additional facts that


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Viera identified in her reply brief required elicitation in an evidentiary hearing

before the district court could reasonably consider the information. For example,

though Viera does not allege that she faced any specific threats of harm, she

generally asserts that the simple act of cooperation opens oneself to potential harm.

The district court did not need an evidentiary hearing to elicit this generally-

accepted reality of cooperation; thus, the court held significant discretion to decline

to hold one. Therefore, we affirm the district court’s order denying the

government and Viera’s request for an evidentiary hearing on the Rule 35(b)

motion.

      AFFIRMED.




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