                                                                    [DO NOT PUBLISH]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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