           Case: 18-14478   Date Filed: 06/05/2019   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-14478
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cr-20221-PAS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

MARIA HAYDEE LUZULA,

                                                         Defendant-Appellant.

                      ________________________

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

                              (June 5, 2019)

Before MARCUS, WILLIAM PRYOR and BRANCH, Circuit Judges.

PER CURIAM:
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      Maria Haydee Luzula, a federal prisoner, appeals pro se the denial of her

motions for appointment of counsel and to compel the government to move for a

sentence reduction based on her substantial assistance. Fed. R. Crim. P. 35(b). The

district court ruled that Luzula had no right to appointed counsel and that she had

failed to make “the necessary showing for . . . review [of] the Government’s failure

to file a Rule 32 motion.” We affirm.

       Two standards of review govern this appeal. Whether a prisoner enjoys a

right to counsel is an issue of law that we review de novo. United States v. Webb,

565 F.3d 789, 793 (11th Cir. 2009). When “there is no statutory or constitutional

right to counsel . . ., the decision to appoint an attorney is left to the discretion of

the district court.” Id. at 795. Under the standard of abuse of discretion, “so long as

the district court does not commit a clear error in judgment, we will affirm the

district court’s decision.” Young v. City of Palm Bay, Fla., 358 F.3d 859, 863 (11th

Cir. 2004). We also review de novo whether a defendant can compel the

government to file a motion to reduce a sentence based on substantial assistance.

United States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993).

      The district court did not err by denying Luzula’s motion for the

appointment of counsel. The Sixth Amendment guarantees “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the Assistance of

Counsel for his defence,” U.S. Const. amend. VI, but a motion to reduce a sentence



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based on changed circumstances is not a trial-related proceeding to which the right

to counsel, under the Sixth Amendment, applies. See Webb, 565 F.3d at 794. The

Due Process Clause of the Fifth Amendment also requires “counsel to be appointed

whenever ‘fundamental fairness’ would demand it,” but fundamental fairness does

not require representation for a prisoner in an non-adversarial proceeding in which

the government requests that the sentencing court reduce her sentence to reward

her for assisting an investigation or prosecution. See id. Although a federal statute

provides for the appointment of counsel through appeal and during “ancillary

matters appropriate to th[ose] proceedings,” 18 U.S.C. § 3006A(c), that statutory

right does not extend to proceedings initiated after a conviction and sentence

become final. See Webb, 565 F.3d at 795. And we cannot say that the district court

committed a clear error in judgment by refusing to appoint counsel to aid Luzula in

pursuing a nonmeritorious claim to reduce her sentence. See id.

      The district court also did not err by denying Luzula’s motion to compel the

government to move to reduce her sentence. Luzula pleaded guilty without a plea

agreement despite, as she stated during her plea colloquy, “nobody . . . giv[ing]

[her] [a] promise” regarding her sentence. Luzula’s argument that her repetition of

a jailhouse rumor of a sexual encounter between a prison guard and an inmate

constituted substantial assistance did “not entitle [her] to a remedy or even to

discovery or an evidentiary hearing.” Wade v. United States, 504 U.S. 181, 186



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(1992). The government determined that Luzula “added no substantial assistance”

to its case, which was based on inmate interviews, surveillance video footage,

biological evidence, and the victim’s statements. Luzula had to make a “substantial

threshold showing” that the government refused to act based on an unconstitutional

motive. Wade, 504 U.S. at 186. Luzula alleged that an “attorney friend . . . told

[her] that the government would file a Rule 35 after she withdrew her pending 28

U.S.C. § 2255 motion,” but her unsubstantiated allegation that the government

withheld sentencing relief based on an improper motive failed to satisfy her

burden. See Forney, 9 F.3d at 1502 (requiring “an allegation and a substantial

showing” to merit judicial review).

      We AFFIRM the denial of Luzula’s postjudgment motions.




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