           Case: 17-14513   Date Filed: 08/10/2018   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-14513
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:08-cr-20231-PCH-7



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

PEDRO GALLEGO,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 10, 2018)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 17-14513       Date Filed: 08/10/2018      Page: 2 of 8


       Pedro Gallego appeals the district court’s denial of his motion to compel the

government to file a motion to reduce his sentence for substantial assistance under

Federal Rule of Criminal Procedure 35(b)(2). He argues the government’s reasons

for refusing to file a Rule 35 motion were not rationally related to a legitimate

government interest and were in breach of his orally modified plea agreement with

the government. He seeks remand so the district court can conduct an evidentiary

hearing. After careful review, we affirm the district court.1

                                              I.

       The parties tell us that in early 2008, Gallego was kidnapped by Roberto

Garcia in retaliation for Gallego robbing a drug stash house. At some point,

Gallego was able to call his cousin to help him escape. But when Gallego’s cousin

arrived, Garcia murdered him. The record does not make clear how, but Gallego

was able to escape from Garcia. Shortly after, he gave a witness statement to

Florida law enforcement about his kidnapping and the murder of his cousin.

       Around this same time, the federal government was investigating Gallego.

In March 2008, a federal grand jury issued a seven-count indictment, charging

Gallego with, among other things, conspiracy to possess with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (“Count One”);


       1
           Gallego filed two unopposed motions to supplement the record. Because the material
will aid this Court in making an informed decision, his motions are GRANTED. See Schwartz
v. Million Air, Inc., 341 F.3d 1220, 1225 n.4 (11th Cir. 2003).
                                              2
               Case: 17-14513    Date Filed: 08/10/2018   Page: 3 of 8


conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a) (“Count

Three”); and use and possession of a firearm in connection with a crime of

violence and drug trafficking crime, in violation of 21 U.S.C. § 846 and 18 U.S.C.

§§ 924(c)(1)(A), (2), 1951(a) (“Count Six”). Pursuant to a written plea agreement,

Gallego pled guilty to Counts One, Three, and Six of the indictment in return for

the dismissal of the other four counts. The plea agreement stated, “[i]f in the sole

and unreviewable judgment of [the government] [Gallego’s] cooperation [was] of

such quality and significance to the investigation or prosecution of other criminal

matters as to warrant the court’s downward departure from the advisory sentence

calculated under the Sentencing Guidelines,” the government may file a Rule 35

motion recommending that Gallego’s sentence be reduced. The plea agreement

also set out Gallego’s agreement that the government was not required to file a

Rule 35 motion, and that there were “no other agreements, promises,

representations, or understandings.” The district court accepted Gallego’s guilty

plea.

        At the 2008 sentencing hearing, the government moved for a 25 percent

reduction to Gallego’s sentence for substantial assistance based on his testimony

against his codefendants. The district court granted the motion and sentenced

Gallego to 180-months imprisonment followed by five years of supervised release.




                                          3
                Case: 17-14513       Date Filed: 08/10/2018      Page: 4 of 8


       In 2017, Gallego filed a pro se motion to compel the government to file a

Rule 35 motion. In his motion, Gallego said he provided information to law

enforcement that resulted in the arrest of Garcia and ultimately led to his

indictment and guilty plea. Gallego said he provided this information after making

a verbal agreement with the government that they would file a Rule 35 motion in

exchange for his assistance. Gallego says the government violated the terms of

this oral agreement. Gallego asked the district court to require the government to

reduce his sentence by 33 percent and schedule an evidentiary hearing.2 The

government opposed the motion and filed a notice of its decision to not file a Rule

35 motion.

       The district court adopted the magistrate judge’s recommendation to deny

Gallego’s motion, and this appeal followed.

                                              II.

       We review de novo whether the district court may compel the government to

make a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,

1498 (11th Cir. 1993) (reviewing de novo a district court’s refusal to depart

downward in the absence of a USSG § 5K1.1 motion by the government); United

States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998) (per curiam) (reviewing

de novo the question of whether the government has breached a plea agreement).

       2
         Gallego filed his motion pro se, but subsequent briefing was handled by attorneys from
the Federal Public Defender’s Office, who continue to represent him on appeal.
                                               4
               Case: 17-14513     Date Filed: 08/10/2018    Page: 5 of 8


                                          III.

       Federal Rule of Criminal Procedure 35(b)(2) governs motions for a sentence

reduction made more than one year after the defendant was sentenced. Broadly,

this rule allows the district court to reduce a defendant’s sentence if he provided

“substantial assistance” in investigating or prosecuting another person. Fed. R.

Crim. P. 35(b)(2). Because district courts can only reduce a defendant’s sentence

for substantial assistance based on a request from the government, see id., Rule

35(b) reflects a “broad grant of prosecutorial discretion.” United States v.

McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008) (per curiam) (quotation omitted).

      There are, however, two limits on the government’s discretion. First, courts

may compel the filing of a Rule 35 motion if the government promised as part of a

plea agreement that it would file one. See United States v. Gonsalves, 121 F.3d

1416, 1419 (11th Cir. 1997). Second, the refusal to file a substantial assistance

motion is subject to judicial review if it is based on an unconstitutional motive,

such as the defendant’s race or religion, or is not rationally related to any

legitimate government end. Wade v. United States, 504 U.S. 181, 185–86, 112 S.

Ct. 1840, 1843–44 (1992) (discussing motions under United States Sentencing

Guidelines § 5K1.1); see McNeese, 547 F.3d at 1309 (extending Wade to Rule

35(b) motions). Gallego argues that either of these rationales supports compelling

the government to file a Rule 35 motion in this case.


                                           5
                Case: 17-14513   Date Filed: 08/10/2018   Page: 6 of 8


      Gallego concedes his plea agreement contains clear language leaving the

filing of a Rule 35 motion to the government’s discretion. But Gallego argues the

government orally modified this agreement during a January 2015 phone call with

defense counsel by saying a Rule 35 motion was “not yet ripe” because Garcia’s

trial had not yet happened. In June, Gallego’s counsel emailed an Assistant United

States Attorney (“AUSA”), stating:

      We last spoke on [January 21, 2015], at which time you advised that
      the [Rule 35 motion] was not yet ripe because Mr. Gallego hadn’t
      testified in the state murder case. The case has now concluded. . . .

      Please let me know how your office will proceed, or if another AUSA
      is handling, please let me know.

The AUSA replied that the case had been transferred to another AUSA. In his

reply, he neither adopted nor disputed Gallego’s counsel’s recollection of the

conversation.

      The government and Gallego have different interpretations of what “not yet

ripe” means. Gallego contends the government’s statement that the motion was

“not yet ripe” was an implied promise that it would be ripe after the conclusion of

Florida’s case against Garcia and that the government would file that motion. In

the government’s view, at most “not yet ripe” means that if the government “were

to consider filing a Rule 35(b) motion for Gallego,” the time to consider that

“would be after Gallego had testified in the state murder case.”



                                          6
              Case: 17-14513     Date Filed: 08/10/2018    Page: 7 of 8


      Even accepting there is some ambiguity in the statement “not yet ripe,” those

words do not reflect a promise that the government will file a Rule 35(b) motion.

The more natural understanding is that the government’s decision on whether to

file a motion would wait until after the close of the case against Garcia. The cases

cited by Gallego are distinguishable as each involves a firm commitment by the

government to move for a sentence reduction or to consider moving for one in

good faith. See United States v. Wilson, 390 F.3d 1003, 1011 (7th Cir. 2004)

(noting “district court expressly found that the government had promised Wilson

that it would act in good faith [in considering filing a Rule 35 motion] if he

withdrew his own motion for a downward departure”); United States v. Martin, 25

F.3d 211, 217 (4th Cir. 1994) (finding a promise by the government where it

indicated at sentencing that it “intended to make a substantial assistance motion

within the next year” (quotation omitted)).

      Turning to the constitutional limits recognized in Wade, Gallego argues the

government’s refusal to file a Rule 35 motion was not rationally related to a

legitimate government purpose. See Wade, 504 U.S. at 186, 112 S. Ct. at 1844. In

its notice that it would not file a Rule 35 motion, the government said its reasons

for not filing were because Gallego assisted Florida’s investigation of Garcia based

on his status as the crime’s victim and that “as a general matter” the government

“would not file a Rule 35 motion in those circumstances.” The government also


                                          7
              Case: 17-14513     Date Filed: 08/10/2018    Page: 8 of 8


decided not to file a Rule 35 motion because Gallego began cooperating with

Florida’s investigation of Garcia “before he committed the very serious crimes that

were the subject of” its case against him.

      The government has given its reasons for refusing to file a Rule 35 motion,

and Gallego has made no substantial showing that the government’s decision was

based on illegitimate reasons or unconstitutional motives. See id. Because

Gallego failed to make a substantial showing, the district court did not err in

denying his motion to compel the government to file a Rule 35 motion without an

evidentiary hearing.

      AFFIRMED.




                                             8
