                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             OCT 13, 2006
                              No. 06-11317                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 03-00012-CR-02-WCO-2

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

AUGUSTIN PENALOZA-ZARATE,
a.k.a. Guadalupe Ortiz-Dominguez,
a.k.a. David Espinosa,
a.k.a. Paisa,
a.k.a. The Skinny Man,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                             (October 13, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
      Augustin Penaloza-Zarate, proceeding pro se, appeals the denial of his

motion for modification of his sentence, filed pursuant to 18 U.S.C. § 3582(c) and

Rule 35(b) of the Federal Rules of Civil Procedure. He argues that the district

court erred by denying his motion in which he argued the government breached its

plea agreement with him when it did not file a substantial-assistance motion,

pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. He also claims

the government breached its obligations under the plea agreement by not

recommending that he receive a seven-year sentence and that all of his sentences

be served concurrently. We affirm.

      “Whether the government has breached a plea agreement is a question of law

that we review de novo.” United States v. Mahique, 150 F.3d 1330, 1332 (11th

Cir. 1998). We also review de novo whether the government can be compelled to

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

1498 (11th Cir. 1993) (reviewing the government’s refusal to file a U.S.S.G.

§ 5K1.1 motion).

      Rule 35(b) provides that upon the government’s motion, the district court

may reduce a defendant’s sentence if, after sentencing, he provided substantial

assistance. Fed. R. Crim. P. 35(b). We will not review the government’s decision




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to file, or not to file, a substantial-assistance motion in the absence of an

unconstitutional motive. Forney, 9 F.3d at 1501-02.

      Contrary to Penaloza-Zarate’s claims on appeal, our review of the plea

agreement reveals no provisions indicating that the government would recommend

either a seven-year sentence or concurrent sentences, nor was there any mention,

during the guilty plea hearing, that the government agreed to recommend a seven-

year sentence or concurrent sentences. Moreover, Penaloza-Zarate failed to allege

that he provided substantial assistance after sentencing, which, by the plain terms

of Rule 35(b), is a prerequisite to the government’s filing of a substantial-

assistance motion.    Finally, on appeal, he has not alleged an unconstitutional

motive, on the government’s part, for not filing the motion.      For all of these

reasons, we affirm the denial of relief.

      AFFIRMED.




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