United States v. Augustin Penaloza-Zarate , 200 F. App'x 898 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 13, 2006
No. 06-11317 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00012-CR-02-WCO-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AUGUSTIN PENALOZA-ZARATE,
a.k.a. Guadalupe Ortiz-Dominguez,
a.k.a. David Espinosa,
a.k.a. Paisa,
a.k.a. The Skinny Man,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 13, 2006)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Augustin Penaloza-Zarate, proceeding pro se, appeals the denial of his
motion for modification of his sentence, filed pursuant to 18 U.S.C. § 3582(c) and
Rule 35(b) of the Federal Rules of Civil Procedure. He argues that the district
court erred by denying his motion in which he argued the government breached its
plea agreement with him when it did not file a substantial-assistance motion,
pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. He also claims
the government breached its obligations under the plea agreement by not
recommending that he receive a seven-year sentence and that all of his sentences
be served concurrently. We affirm.
“Whether the government has breached a plea agreement is a question of law
that we review de novo.” United States v. Mahique, 150 F.3d 1330, 1332 (11th
Cir. 1998). We also review de novo whether the government can be compelled to
make a substantial-assistance motion. See United States v. Forney, 9 F.3d 1492,
1498 (11th Cir. 1993) (reviewing the government’s refusal to file a U.S.S.G.
§ 5K1.1 motion).
Rule 35(b) provides that upon the government’s motion, the district court
may reduce a defendant’s sentence if, after sentencing, he provided substantial
assistance. Fed. R. Crim. P. 35(b). We will not review the government’s decision
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to file, or not to file, a substantial-assistance motion in the absence of an
unconstitutional motive. Forney, 9 F.3d at 1501-02.
Contrary to Penaloza-Zarate’s claims on appeal, our review of the plea
agreement reveals no provisions indicating that the government would recommend
either a seven-year sentence or concurrent sentences, nor was there any mention,
during the guilty plea hearing, that the government agreed to recommend a seven-
year sentence or concurrent sentences. Moreover, Penaloza-Zarate failed to allege
that he provided substantial assistance after sentencing, which, by the plain terms
of Rule 35(b), is a prerequisite to the government’s filing of a substantial-
assistance motion. Finally, on appeal, he has not alleged an unconstitutional
motive, on the government’s part, for not filing the motion. For all of these
reasons, we affirm the denial of relief.
AFFIRMED.
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