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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14745
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20433-UU-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE ANTONIO GARAY RODRIGUEZ,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 25, 2021)
Before GRANT, LAGOA, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Defendant Jose Antonio Garay Rodriguez appeals the district court’s denial
of his motion to compel the Government to file a motion under Federal Rule of
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Criminal Procedure 35(b) to reduce his sentence based on substantial assistance.
Because the Government retained discretion to decide whether to file such a
motion under Defendant’s plea agreement, and Defendant failed to make a
substantial showing that the Government’s decision not to move for a sentence
reduction resulted from an unconstitutional motive, we affirm the decision below.
I. BACKGROUND
In 2012, a Marine Patrol Aircraft notified the United States Coast Guard that
a go-fast style vessel with visible bales on deck was heading northwest in the
Caribbean Sea at a high rate of speed. After the Marine Patrol Aircraft observed
individuals on the vessel jettison about 15 bales into the sea, the Coast Guard
recovered five of the bales and boarded the vessel, which was without nationality
and therefore subject to United States jurisdiction. The Coast Guard found three
Hondurans, including Defendant, and one Colombian onboard and determined that
the jettisoned bales contained cocaine.
A federal grand jury indicted the crewmembers, charging Defendant in three
of four counts. Pursuant to a written plea agreement, Defendant pled guilty to
Count 1—conspiracy to possess with intent to distribute 5 kilograms or more of
cocaine, in violation of
46 U.S.C. §§ 70503(a)(1), 70506(a), (b), and
21 U.S.C.
§ 960(b)(1)(A)—in exchange for the Government dropping the remaining charges
against him. The plea agreement provided that the Government “may” file a
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motion under Federal Rule of Criminal Procedure 35(b) for a downward departure
based on substantial assistance “[i]f in the sole and unreviewable judgment of this
Office 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 . . . any applicable minimum mandatory sentence.” The
plea agreement further provided that “nothing in this agreement requires this
Office to file any such motions, and that this Office’s assessment of the quality and
significance of the defendant’s cooperation shall be binding as it relates to the
appropriateness of this Office’s filing or non-filing of a motion to reduce
sentence.” The court accepted Defendant’s plea and sentenced him to the
mandatory minimum of 120 months’ imprisonment. The Government never filed a
motion to reduce Defendant’s sentence for substantial assistance.
Over the next seven years, Defendant filed several pro se motions
concerning the substantial-assistance provision in his plea agreement. First, in
2015, Defendant moved the court to inquire as to whether the Government would
file a substantial-assistance motion. In denying the motion, the court explained
that it had no authority to review the Government’s refusal to file such a motion
absent a substantial showing that its refusal was the result of an unconstitutional
motive. For the same reason, the court denied Defendant’s July 2019 motion to
compel the Government to file a substantial-assistance motion under Rule 35(b).
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The instant appeal concerns Defendant’s October 2019 motion, in which he
again asked the court to compel the Government to file a substantial-assistance
motion under Rule 35(b). Defendant once again asserted that he had assisted the
Government and argued that the Government was discriminating against him for
“an unknown reason” because it had filed substantial-assistance motions on behalf
of two of his codefendants, who had cooperated with the Government by providing
the same information he had provided. Because Defendant still had not made a
substantial showing that the Government had refused to file a substantial-
assistance motion based on an unconstitutional motive, the district court denied the
motion. The court further ruled that it would not entertain any future motions from
Defendant regarding a Rule 35(b) motion.
II. DISCUSSION
Proceeding pro se on appeal, Defendant challenges the district court’s denial
of his motion to compel the Government to file a substantial-assistance motion
under Rule 35(b). We review de novo whether a district court had authority to
compel the Government to file a motion for a downward departure based on
substantial assistance. See United States v. Forney,
9 F.3d 1492, 1498–1500 (11th
Cir. 1993).
Federal Rule of Criminal Procedure 35(b) provides that the court may reduce
a defendant’s sentence after sentencing if the Government files a motion for a
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sentence reduction based on the defendant’s substantial assistance in investigating
or persecuting another person. Fed. R. Crim. P. 35(b). When the Government
retains discretion under a plea agreement to decide whether or not to file a
Rule 35(b) motion, a court may review the Government’s refusal to file such a
motion only if that refusal was based on an unconstitutional motivation, such as
race or religion. Forney,
9 F.3d at 1502. To obtain review of the Government’s
discretionary decision not to file a substantial-assistance motion, the defendant
must first make a “substantial threshold showing” that the refusal was based upon
an unconstitutional motive. Wade v. United States,
504 U.S. 181, 185–86 (1992).
Here, the district court did not err in denying Defendant’s motion to compel
the Government to file a substantial-assistance motion. As an initial matter, the
record belies Defendant’s argument that his plea agreement required the
Government to file such a motion.1 Under the clear terms of Defendant’s plea
agreement, the Government retained discretion to decide whether to file a
Rule 35(b) motion. Indeed, the plea agreement repeatedly emphasized the
discretionary nature of the Government’s decision, stating that (1) the Government
1
Defendant appears to argue for the first time on appeal that the Government breached the plea
agreement by failing to file a Rule 35(b) motion. This argument is subject to plain-error review
because he did not raise it below. See Puckett v. United States,
556 U.S. 129, 133–34 (2009)
(holding that plain-error review applies to a defendant’s unpreserved argument that the
Government had violated his plea agreement). Nevertheless, because the plain terms of
Defendant’s plea agreement show that the Government had no such obligation, Defendant’s
argument fails even on de novo review.
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“may” file such a motion, (2) the Government retained “sole and unreviewable
judgment” on the issue, (3) “nothing in [the] agreement requires [the Government]
to file any such motions,” and (4) the Government’s “assessment of the quality and
significance of the defendant’s cooperation shall be binding as it relates to the
appropriateness of [the Government’s] filing or non-filing of a motion to reduce
sentence.” Because the Government had discretion on the issue of substantial
assistance, Defendant was required to make a substantial showing that the
Government’s decision not to file a Rule 35(b) motion resulted from an
unconstitutional motivation.
Id.
Defendant failed to meet that standard. Even assuming that Defendant’s
allegations were correct—that he was treated unfairly because the Government
filed substantial-assistance motions on behalf of his codefendants who provided
the same information he did—that did not show that the Government’s motive for
deciding not to file a Rule 35(b) motion in Defendant’s case was unconstitutional.
Defendant did not identify any facts or evidence suggesting, for example, that his
race or religion played into the Government’s decision-making process. Rather, he
candidly admitted that the Government’s motive for failing to move for a sentence
reduction was “unknown.” His only argument is that he made a “good faith” effort
to assist the Government. Neither “generalized allegations of [an] improper
motive” nor “a claim that a defendant . . . provided substantial assistance,”
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however, satisfies a defendant’s burden to make a substantial threshold showing of
a constitutionally suspect motive. Wade,
504 U.S. at 186.
Absent such a showing, the district court lacked authority to review the
Government’s decision not to file a substantial-assistance motion. Accordingly,
the district court did not err in denying Defendant’s motion to compel the
Government to file a Rule 35(b) motion for a sentence reduction.
III. CONCLUSION
Because the district court correctly denied Defendant’s motion to compel the
Government to move for a sentence reduction based on Defendant’s substantial
assistance, we affirm.
AFFIRMED.
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