                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 09-11150
                                                          NOVEMBER 4, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________                CLERK

               D. C. Docket No. 03-00126-CR-FTM-29DNF

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ELSTON NATHANIEL ORJUNA,

                                                         Defendant-Appellant.


                       ________________________

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

                            (November 4, 2009)



Before BIRCH, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:
      Elston Nathaniel Orjuna, pro se, appeals the district court’s decision denying

his motion to reconsider its judgment on a Fed. R. Crim. P. 35(b) motion filed by

the government. The district court gave Orjuna a 59–month sentence reduction for

providing substantial assistance to the government. He contends that his

constitutional rights were violated because counsel was not appointed to represent

him, he was never given an opportunity to present facts supporting a greater

reduction of his sentence, and he never received a copy of the government’s Rule

35(b) motion.

                                          I.

      In 2004, Orjuna pleaded guilty to conspiring to possess five kilograms or

more of cocaine with the intent to distribute it, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A). The district court sentenced him to 210 months imprisonment. In

December 2008, the government filed a Fed. R. Crim. P. 35(b) motion requesting

that the district court grant Orjuna a four-level downward departure in his offense

level for providing substantial assistance to the government because he testified

against the leader of a drug organization. The district court granted Orjuna a three-

level downward departure and entered an amended judgment reducing Orjuna’s

sentence to 151 months imprisonment. Orjuna moved for reconsideration of the

district court’s order, arguing that he should have been appointed counsel and



                                          2
permitted to present mitigating evidence before the district court ruled on the

government’s motion. The district court denied Orjuna’s motion for

reconsideration, concluding that Orjuna had no constitutional right to counsel,

there was no justification for appointing him counsel, and there was no basis for

reconsidering its earlier ruling. Orjuna now challenges the district court’s denial of

his motion for reconsideration.

                                               II.

       We review the denial of a motion to reconsider for abuse of discretion.

United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004). The existence of a

right to counsel is a question of law that we review de novo. United States v.

Webb, 565 F.3d 789, 793 (11th Cir. 2009). When no right to counsel exists, the

decision whether to appoint counsel is left to the discretion of the district court.

See id. at 795. We review the district court’s decision not to appoint counsel for an

abuse of discretion. See id.

       Orjuna argues that the district court erred by not appointing counsel to

represent him before it ruled on the government’s Rule 35(b) motion.1 Because he

was not represented by counsel, Orjuna asserts that he was unable to present facts


       1
         Orjuna argues in his initial brief that he was denied the appointment of counsel.
Because Orjuna is appearing pro se “we read this liberally to invoke the right to counsel as a
general matter, which would encompass all possible bases for such a right, whether they be
statutory or constitutional.” Webb, 565 F.3d at 794 n.3.

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supporting a greater reduction of his sentence. The facts that he contends he was

never given a chance to present to the district court are that he was targeted by

other inmates because of the assistance he provided to the government and that he

was threatened by the person he testified against.

      Orjuna did not have a constitutional right to counsel in connection with the

government’s Rule 35(b) motion. The Sixth Amendment guarantees defendants a

right to counsel “during those critical stages of a criminal prosecution where

substantial rights of a criminal accused may be affected . . . .” Id. at 794 (internal

quotations omitted). A Rule 35(b) motion is not a critical stage of the prosecution,

United States v. Jackson, 923 F.2d 1494, 1496–97 (11th Cir. 1991), and thus a

defendant does not have a Sixth Amendment right to counsel. See also United

States v. Taylor, 414 F.3d 528, 536–37 (4th Cir. 2005) (holding that a defendant

does not have a Sixth Amendment right to counsel when the government makes a

Rule 35(b) motion); Id. at 536 (“[A] Rule 35(b) motion is not a trial-related

proceeding and, therefore, the Sixth Amendment cannot serve as a source of his

claimed right to counsel.”).

      Likewise, Orjuna had no Fifth Amendment right to counsel. The Fifth

Amendment requires “counsel to be appointed whenever ‘fundamental fairness’

would demand it.” Webb, 565 F.3d at 794 (citing Gagnon v. Scarpelli, 411 U.S.



                                            4
778, 790, 93 S. Ct. 1756, 1763 (1973)). Fundamental fairness does not require

defendants to be represented by counsel on a Rule 35(b) motion. The Federal

Rules of Criminal Procedure allow Rule 35 proceedings to be held without

defendants being present. See Fed. R. Crim. P. 43(b)(4) (“A defendant need not be

present under any of the following circumstances: . . . [t]he proceeding involves the

. . . reduction of sentence under Rule 35 . . . .”). “Since we have found that the

rights afforded under Rule 43 are at least as broad as those from Fifth Amendment

due process, a defendant has no right to be present at such a hearing, and thus there

[is] no automatic Fifth Amendment right to counsel.” Webb, 565 F.3d at 795; see

also United States v. Palomo, 80 F.3d 138, 142 (5th Cir. 1996) (“The fact that a

Rule 35(b) sentence reduction affects the inmate’s sentence is of itself insufficient

to trigger a due process right to counsel in the proceedings — in a Rule 35(b)

proceeding the inmate faces no new threat of additional loss of liberty and indeed

is given the opportunity to obtain a lighter sentence.”). The district court’s failure

to appoint Orjuna counsel was not a Fifth Amendment violation.

      Orjuna also had no statutory right to counsel under 18 U.S.C. § 3006A(c)

because a Rule 35(b) motion is not an “ancillary matter[ ] appropriate to the

proceedings.” See 18 U.S.C. § 3006A(c) (giving indigent defendants a right to

have counsel appointed “at every stage of the proceedings from his initial



                                           5
appearance before the United States magistrate judge or the court through appeal,

including ancillary matters appropriate to the proceedings.”); Webb, 565 F.3d at

795. Since Orjuna had no constitutional or statutory right to counsel, the decision

to appoint counsel was within the district court’s discretion. Id. Based on our

review of the record, we conclude that the district court did not abuse its discretion.

      Orjuna also contends that his Fifth Amendment procedural due process

rights were violated because he never received a copy the government’s Rule 35(b)

motion. Orjuna’s argument is without merit. In United States v. Alvarez, we

indicated that due process guarantees do not attach to Rule 35(b) proceedings

because the decision whether to file a Rule 35(b) motion is within the sound

discretion of the government. See 115 F.3d 839, 841 (11th Cir. 1997) (“Because

motions for downward departure are within the Government’s discretion, [a

defendant] has no protected right which gives rise to a due process claim . . . .”),

superseded by rule on other grounds, Fed. R. Crim. P. 35(b), as recognized in

United States v. Johnson, 241 F.3d 1049, 1054 (11th Cir. 2001). Thus, Orjuna

cannot establish that his due process rights were violated. Attached to the

government’s Rule 35(b) motion was a certificate of service providing that notice

of the motion was to be sent to his address in prison. Although Orjuna asserts that

he never received the government’s motion, the record suggests otherwise. We



                                           6
affirm.

      AFFIRMED.




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