           Case: 19-10588    Date Filed: 11/26/2019   Page: 1 of 5


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10588
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:13-cr-20248-JEM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

WILLIAM OBREGON PAREDES,
a.k.a. Tio Bavario,

                                                          Defendant-Appellant.

                      ________________________

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

                            (November 26, 2019)

Before WILSON, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:
                Case: 19-10588      Date Filed: 11/26/2019     Page: 2 of 5


         William Obregon Paredes, proceeding pro se, appeals the district court’s

denial of his motion to compel the government to file a motion for sentence

reduction under Federal Rule of Criminal Procedure 35(b). He argues that he is

entitled to such a motion based on the substantial assistance he provided after

sentencing, and that the government’s failure to file a Rule 35(b) motion is a

breach of his plea agreement.

         For context, Paredes pled guilty pursuant to a written plea agreement, which

stated

               If in the sole and unreviewable judgment of [the
               government] the defendant’s cooperation is of such quality
               and significance to the investigation or prosecution of
               other criminal matters as to warrant the Court’s downward
               departure from [the guideline range], [the government]
               may make a motion prior to sentencing pursuant to Section
               5K1.1 . . . , or subsequent to sentencing pursuant to Rule
               35 . . . informing the Court that the defendant has provided
               substantial assistance and recommending that the
               defendant’s sentence be reduced.            The defendant
               understands and agrees, however, that nothing in this
               agreement requires [the government] to file any such
               motions, and that [its] assessment of the quality and
               significance of the defendant’s cooperation shall be
               binding as it relates to the appropriateness of [its] filing or
               non-filing of a motion to reduce sentence.

         The presentence investigation report indicated that Paredes’s guideline range

was 135 to 168 months’ imprisonment, the statutory minimum sentence was 10

years’ imprisonment, and the statutory maximum was life imprisonment.

However, because Paredes met the criteria of 18 U.S.C. § 3553(f)(1)–(5), the
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district court could impose a sentence regardless of the statutory minimum. At

sentencing, the government moved for a sentence reduction under U.S.S.G.

§ 5K1.1, based on Paredes’s substantial cooperation with the government prior to

sentencing. Specifically, the government recommended a sentence of 135 months’

imprisonment, reduced by 40 percent to 81 months’ imprisonment. The district

court granted the § 5K1.1 motion. It imposed a downward variance to 120

months’ imprisonment before applying the 40 percent reduction, resulting in a

72-month sentence.

       Paredes then filed this motion to compel the government to file a Rule 35(b)

motion, asserting that he had provided substantial assistance after sentencing and

that the government breached the plea agreement by failing to file a Rule 35(b)

motion. The district court denied the motion. Because Paredes has not shown that

the government’s refusal to file a Rule 35(b) motion was motivated by an

unconstitutional motive or constituted a breach of the plea agreement, we affirm

the district court.

                                         I

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

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

1498 (11th Cir. 1993). Additionally, we review de novo whether the government




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has breached a plea agreement. United States v. Copeland, 381 F.3d 1101, 1104

(11th Cir. 2004).

      Under § 5K1.1, a court may depart from the advisory guideline range at

sentencing if the government files a motion “stating that the defendant has

provided substantial assistance in the investigation or prosecution of another.”

U.S.S.G. § 5K1.1. Similarly, Rule 35(b) provides that a district court may reduce a

defendant’s sentence for providing substantial assistance after sentencing, if the

government moves for such a reduction within one year of his sentence. Fed. R.

Crim. P. 35(b)(1). “[T]he government has a power, not a duty, to file a motion

when a defendant has substantially assisted.” United States v. Dorsey, 554 F.3d

958, 961 (11th Cir. 2009) (internal quotation marks omitted).

      The government’s discretion to refuse to file a substantial-assistance motion

is subject to judicial review in only two circumstances. First, it is reviewable if the

refusal constitutes a breach of the plea agreement. See United States v. Gonsalves,

121 F.3d 1416, 1419 (11th Cir. 1997) (discussing motions under § 5K1.1).

Second, its discretion is subject to review if it is based on an unconstitutional

motive, such as the defendant’s race or religion. See Wade v. United States, 504

U.S. 181, 185–86 (1992) (discussing motions under § 5K1.1); United States v.

McNeese, 547 F.3d 1307, 1308 (11th Cir. 2008) (extending Wade to Rule 35(b)

motions). We have previously concluded that the government’s refusal to file a


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substantial-assistance motion is not a breach of a plea agreement that merely

provides that the government will “consider” filing such a motion. See Forney, 9

F.3d at 1499–1500 & n.2.

      Here, the district court did not err in denying Paredes’s motion. First, he did

not allege or show that the government had an unconstitutional motivation for

refusing to file a Rule 35(b) motion. See Wade, 504 U.S. at 185–86; McNeese, 547

F.3d at 1308. Furthermore, he did not show that the government breached the plea

agreement, as the plain language of the agreement gave the government the

discretion to determine whether to file a Rule 35(b) motion. See Forney, 9 F.3d

at 1499–1500 & n.2. Accordingly, we affirm.

      AFFIRMED.




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