           Case: 18-13767   Date Filed: 02/06/2019   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13767
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:13-cr-20801-WPD-3



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

CARLOS ALBERTO SINESTERRA PENALOSA,
a.k.a. Juanca,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 6, 2019)

Before WILLIAM PRYOR, MARTIN and NEWSOM, Circuit Judges.

PER CURIAM:
               Case: 18-13767     Date Filed: 02/06/2019    Page: 2 of 3


      Carlos Penalosa appeals pro se the denial of his motion to compel the

government to request a sentence reduction based on his substantial assistance. See

Fed. R. Crim. P. 35(b). He also argues, for the first time on appeal, that the

government refused to move for a sentence reduction because he is a citizen of

Colombia, Hispanic, and of black descent. We affirm.

      We apply two standards of review in this appeal. We review de novo

whether a defendant can compel the government to file a motion to reduce a

sentence based on substantial assistance, see United States v. Forney, 9 F.3d 1492,

1498 (11th Cir. 1993), and whether the government breached its plea agreement,

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

arguments raised for the first time on appeal for plain error. United States v.

Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To establish plain error, a defendant

must prove that error occurred that is plain and that affects a substantial right. Id.

      The government enjoys discretion in determining whether a defendant has

provided substantial assistance and to move for a sentence reduction on that basis.

Fed. R. Crim. P. 35(b)(1); Wade v. United States, 504 U.S. 181, 185 (1992). A

defendant seeking to compel the government to request a sentence reduction must

make a “substantial threshold showing” that the government refuses to act based

on an unconstitutional motive. Wade, 504 U.S. at 186. The burden also rests with




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the defendant to establish that the government has breached its plea agreement. See

United States v. Gonsalves, 121 F.3d 1416, 1419 (11th Cir. 1997).

      The district court committed no error in denying Penalosa’s motion to

compel. The government did not breach its written agreement “to evaluate the

nature and extent of [Penalosa’s] cooperation” and to make “the sole and

unreviewable judgment . . . [whether his] cooperation [was] of such quality and

significance . . . as to warrant . . . [recommending] that [his] sentence be reduced”

based on his substantial assistance. Penalosa presented no evidence that he

provided substantial assistance and, according to the government, Penalosa

provided stale information during his debriefing, by which time three of his

codefendants already had begun to cooperate. Penalosa argues that the government

refused to request a sentence reduction based on racial animus, but his argument is

wholly conclusory and speculative. He cannot obtain relief based on his

“generalized allegations of improper motive.” See Wade, 504 U.S. at 186.

      We AFFIRM Penalosa’s sentence.




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