             Case: 17-14713   Date Filed: 05/08/2019   Page: 1 of 8


                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-14713
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 8:17-cr-00232-MSS-JSS-2


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,
                                    versus
LUIS ALBERTO BAGUI-SOLIS,
                                                           Defendant-Appellant.

                       __________________________

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

                                (May 8, 2019)

Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:

     Luis Alberto Bagui-Solis appeals his 120-month prison sentence—the

mandatory-minimum sentence for his offense—on the ground that the government
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improperly refused to file a substantial-assistance motion that would have allowed

the district court to sentence him below the mandatory minimum, as it wished to do.

He contends that the government’s refusal was an abuse of discretion, in bad faith,

and in violation of the plea agreement, and that the district court should have held

an evidentiary hearing. After careful review, we affirm Bagui-Solis’s sentence.

                                               I.

       Bagui-Solis was indicted along with two codefendants for trafficking cocaine

on a go-fast vessel in international waters. See 46 U.S.C. §§ 70503(a), 70506(a) &

(b). He pled guilty under a written agreement in which he agreed to cooperate with

the government. In exchange for his plea, the government agreed to make certain

favorable recommendations at sentencing and “to consider,” in its sole discretion,

whether Bagui-Solis’s cooperation amounted to “substantial assistance” warranting

a motion for a sentence reduction under either U.S.S.G. § 5K1.1 or Rule 35(b), Fed.

R. Crim. P.

       Because the offense to which Bagui-Solis pled guilty carried a mandatory-

minimum sentence of ten years of imprisonment, a substantial-assistance motion

was his only way 1 of receiving a sentence below ten years. See 18 U.S.C. § 3553(e)


       1
         In United States v. Pertuz-Pertuz, we held that defendants like Bagui-Solis who were
convicted under the Maritime Drug Law Enforcement Act were not eligible for relief from
mandatory-minimum sentences under the “safety valve,” 18 U.S.C. § 3553(f). 679 F.3d 1327,
1328–29 (11th Cir. 2012) (“[T]he plain text of the statutes shows that convictions under Title 46
of the U.S. Code—like Defendant’s—entitle a defendant to no safety-valve sentencing relief.”).
After Bagui-Solis was sentenced, however, Congress amended the safety valve to make MDLEA

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(“Upon motion of the Government, the court shall have the authority to impose a

sentence below a level established by statute as a minimum sentence so as to reflect

a defendant's substantial assistance in the investigation or prosecution of another

person who has committed an offense.”); U.S.S.G. § 5K1.1. To that end, Bagui-

Solis met with the government in a proffer session and provided truthful information.

       When sentencing came around, however, the government refused to move for

a reduction based on substantial assistance, despite having done so for a cooperating

codefendant. Asked by the district court to explain the discrepancy, the government

stated that, while Bagui-Solis had provided information about the particular go-fast

operation in this case and the roles of those on board the vessel, the other defendant,

who was the master of the vessel, had provided additional “information about Tier

2 organiz[ers].” Additionally, the government asserted that the other defendant

spoke with law enforcement at an earlier time, which, in the government’s view, had

a “domino effect” in this case.

       The district court expressed distaste at the idea that the government would

simply reward the first defendant to cooperate, and it lamented the lack of

“consistency” in the government’s decisions to reward cooperating defendants more

generally. After hearing testimony from the agent involved in the proffers, the court




defendants eligible for relief on a prospective basis under this provision. See First Step Act of
2018, Pub. L. 115-391, § 402, 132 Stat. 5194 (2018).

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prompted the government to give a reason for the differential treatment aside from

timing and scheduling issues. In response, the government elaborated that the other

defendant had provided both more information about this particular go-fast operation

than did Bagui-Solis and also “Tier 2 information” about those higher up in the

smuggling operation.

      With that explanation, and in the absence of a substantial-assistance motion,

the district court sentenced Bagui-Solis to ten years of imprisonment, the mandatory

minimum. The court stated that, if the mandatory minimum did not apply, it would

have sentenced him “in the range of 87 months under the guidelines.” Bagui-Solis

now appeals.

                                        II.

      We review de novo whether the government has breached a plea agreement.

United States v. Al-Arian, 514 F.3d 1184, 1191 (11th Cir. 2008). We review the

denial of an evidentiary hearing for an abuse of discretion. United States v. Brown,

441 F.3d 1330, 1349–50 (11th Cir. 2006).

      The government is bound by its material promises that induce a defendant to

plead guilty. United States v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016). When

judging whether the government has violated a plea agreement, “[w]e apply an

objective standard to decide whether the government actions are inconsistent with

the defendant’s understanding of the plea agreement, rather than reading the


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agreement in a hyper-technical or rigidly literal manner.” Id. (citation and quotation

marks omitted). Where the language of the agreement is unambiguous, “we are

limited to the unambiguous meaning of the language in the agreement.” United

States v. Copeland, 381 F.3d 1101, 1106 (11th Cir. 2004).

      Here, the plea agreement unambiguously gave the government sole discretion

to determine whether Bagui-Solis provided substantial assistance warranting a

sentence reduction. While the government promised “to consider” whether Bagui-

Solis’s cooperation amounted to substantial assistance, it did not promise to file such

a motion if he cooperated.       The plea agreement expressly provided that the

determination of substantial assistance “rest[ed] solely” with the government and

could not be challenged by Bagui-Solis. Because the plea agreement left to the

government’s sole discretion whether to file a substantial-assistance motion, the

government did not breach the agreement by failing to file such a motion.

      For that reason, Bagui-Solis’s reliance on general contract principles is off the

mark. As we explained in United States v. Forney, we do not conduct a contract

analysis when the government promises only to consider a defendant’s assistance

and there is no evidence that the government did not so, which is the case here. 9

F.3d 1492, 1499 n.2 (11th Cir. 1993) (explaining that the “contract-analysis cases,”

like Santobello v. New York, 404 U.S. 257 (1971), did not apply because “[t]here is

no evidence that the government did not consider Forney’s assistance, which is all


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that it promised to do.” (emphasis omitted)). Instead, our analysis is governed by

the principles established by the Supreme Court in Wade v. United States, 504 U.S.

181 (1992). Id. at 1499 n.2, 1501–02.

       According to Wade, federal courts may review the government’s refusal to

file a substantial-assistance motion only if the defendant makes a “substantial

threshold showing” that the “refusal was based on an unconstitutional motive,” such

as race or religion, or that the “refusal to move was not rationally related to any

legitimate Government end.” Wade, 504 U.S. at 185–86. “A defendant who merely

claims to have provided substantial assistance or who makes only generalized

allegations of an improper motive is not entitled to a remedy or to even an

evidentiary hearing.” United States v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009);

see also Wade, 504 U.S. at 186; Forney, 9 F.3d at 1501 n.4, 1502 n.5 (explaining

that generalized allegations of bad faith are not sufficient under Wade).

       Here, Bagui-Solis has not made the threshold showing required by Wade. He

does not claim that the government’s refusal was based on an unconstitutional

motive.2 And on this record, we cannot say that the government’s refusal was not

rationally related to a legitimate government end. See Wade, 504 U.S. at 185–86.



       2
          We do not consider Bagui-Solis’s argument that the government’s actions in this case
evince discrimination for non-English speaking defendants who are represented by English-
speaking attorneys because it was raised for the first time in his reply brief. See United States v.
Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (“Arguments raised for the first time in a reply brief
are not properly before a reviewing court.” (alteration and quotation marks omitted)).

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      Bagui-Solis contends that one of the government’s stated reasons for denying

a sentence reduction—that his codefendant provided information first—is not a

good-faith or legitimate reason because it was caused by the government’s own

conduct in scheduling the interviews. But he does not dispute, and in fact admits,

that his codefendant was able to provide information that he did not and could not.

Specifically, the government proffered, and the district court accepted, that the

codefendant, who was the master of the vessel, provided both more information

about his particular go-fast operation in this case than did Bagui-Solis and also “Tier

2 information” about those higher up in the smuggling operation.

      Thus, the government justified its decision to reward his codefendant and not

Bagui-Solis in part on the respective value of the information provided, not simply

when the information was provided.         We cannot say this is not a legitimate

government end because the substantial-assistance regime is designed “to benefit the

government in its prosecution efforts,” not simply “to reward a cooperative

defendant.” See United States v. Orozco, 160 F.3d 1309, 1316 (11th Cir. 1998)

(quotation marks omitted). Perhaps unfortunately, the fact that Bagui-Solis fully

cooperated with the government and provided truthful information does not entitle

him to a sentence reduction. See id.; Dorsey, 554 F.3d at 961. While it may seem

unfair that Bagui-Solis’s codefendant was able to provide more valuable information




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precisely because he had a more culpable role in the offense, that does not

demonstrate that the government acted in bad faith or for illegitimate reasons.

      Finally, we are bound to conclude Bagui-Solis’s argument that the district

court should have held an evidentiary hearing fails for two reasons. First, no

evidentiary hearing was required because Bagui-Solis failed to make out the required

threshold showing under Wade. See Wade, 504 U.S. at 186–87; Dorsey, 554 F.3d

at 961. Second, the court at sentencing probed the government’s reasons for denying

a reduction and heard testimony from the responsible agent, so it is not clear what

an additional hearing would have accomplished.

      For these reasons, we affirm Bagui-Solis’s sentence.

      AFFIRMED.




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