              Case: 12-14878    Date Filed: 04/23/2013   Page: 1 of 6


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-14878
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:07-cr-60143-JIC-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

REGINALD WARE,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (April 23, 2013)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Reginald Ware, a federal prisoner proceeding pro se, appeals the district

court’s denial of his post-judgment motion to withdraw his plea because the
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government did not file a motion recognizing his substantial assistance under

Fed.R.Crim.P. 35(b) (“Rule 35(b)”), in relation to his conviction for possession

with intent to distribute five kilograms or more of cocaine, in violation of 21

U.S.C. § 841(a)(1). For the reasons set forth below, we affirm the district court’s

denial of Ware’s motion to withdraw his plea.

                                        I.

      In 2007, Ware pled guilty pursuant to a written plea agreement to possession

with intent to distribute cocaine. In 2012, Ware filed a motion requesting the

district court to allow him to withdraw his guilty plea on the grounds that the

government breached his plea agreement by failing to make the extent of Ware’s

cooperation known to the court at sentencing and failing to file a motion to reduce

his sentence based on his substantial assistance to the government. The district

court denied Ware’s motion because, as the government had the sole discretion to

decide whether Ware had provided substantial assistance, he had to show the

denial of a constitutional right to prevail. However, he had failed to allege that the

government refused to move for a reduction of his sentence because of an

unconstitutional motivation. Ware filed a motion to reconsider the court’s order

denying his motion, which the district court denied.




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                                        II.

      On appeal, Ware argues that the district court erred in denying his motion to

withdraw his plea. He contends that the government breached his plea agreement

by failing to make the extent of his cooperation known to the court at sentencing,

by failing to file a U.S.S.G. § 5K1.1 motion prior to sentencing, and by failing to

file a Rule 35 motion after sentencing. He claims that, as the government had

conceded in a letter that it had begun an investigation into drug-trafficking activity

based on information Ware had provided and had prosecuted several individuals

based on its investigation, the government was obligated to file a

substantial-assistance motion. Ware further argues that the district court abused its

discretion by denying his motion for reconsideration.

      Whether the government breached a plea agreement is a question of law that

we review de novo. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir.

2008). We also review de novo whether the district court has the authority to

compel the government to file a substantial-assistance motion. See United States v.

Forney, 9 F.3d 1492, 1498 (11th Cir. 1993) (concerning the authority of the court

to depart downward in the absence of a substantial-assistance motion in the context

of § 5K1.1). We review the denial of a motion for reconsideration for abuse of

discretion. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004). Pro se

pleadings are construed liberally. Tannenbaum v. United States, 148 F.3d 1262,


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1263 (11th Cir. 1998).

      In Santobello v. New York, the Supreme Court held that, when a plea rests in

any significant degree on a promise by the government, such that it can be said to

be part of the inducement or consideration for the plea, such a promise must be

fulfilled. 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). Where the

government fails to fulfill a promise that induced a guilty plea, the court that

sentenced the defendant has the discretion to fashion an appropriate remedy, such

as allowing the defendant to withdraw his guilty plea or ordering specific

performance. Id. at 262-63, 92 S.Ct. at 499. However, where a plea agreement

requires the government only to “consider” filing a substantial-assistance motion

and places the decision “solely” in the hands of the government, the government

has not failed to fulfill any promise. See Forney, 9 F.3d at 1499-1500 (addressing

government’s refusal to file a § 5K1.1 motion). Under these circumstances, the

Supreme Court has held that federal courts only have authority to review a

prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if

they find that the refusal was based on an unconstitutional motive. United States v.

Wade, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 1843-44, 118 L.Ed.2d 524 (1992)

(addressing government’s refusal to file a § 5K1.1 motion). Thus, judicial review

is appropriate only where there is an allegation and a substantial showing that the

government refused to file a substantial-assistance motion because of a


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constitutionally impermissible motivation. Forney, 9 F.3d at 1502. Otherwise,

courts are precluded from intruding into prosecutorial discretion. Id. at 1501.

      Here, the district court properly denied Ware’s 2012 motion. In his plea

agreement the government reserved the right to make his cooperation known to the

court at the time of sentencing, and the government did not agree to inform the

court as to Ware’s cooperation at sentencing. The government also did not agree

to file a § 5K1.1 or Rule 35(b) motion in his plea agreement, but rather indicated

that its decision concerning the motion was in its sole and unreviewable discretion.

At his plea hearing, Ware indicated that he had discussed the terms of his plea

agreement with his counsel and understood the agreement’s terms. Thus, Ware

failed to show that the government failed to fulfill a promise that induced his guilty

plea, and he is not entitled to any relief under Santobello. See Santobello, 404 U.S.

at 262-63, 92 S.Ct. at 499; Forney, 9 F.3d at 1499-1500. Moreover, Ware did not

make any allegation in the instant motion or on appeal that the government refused

to file a substantial-assistance motion on the basis of a constitutionally

impermissible motivation. Thus, the district court lacked the authority to review

the government’s decision not to file a substantial-assistance motion, and the court

did not err in denying his motion. Forney, 9 F.3d at 1502. As the court did not err

in denying his motion, the court also did not abuse its discretion in denying his

motion for reconsideration of the denial of his motion.


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      For the foregoing reasons, we affirm the district court’s denial of Ware’s

motion to withdraw his plea.

      AFFIRMED.




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