United States v. Pedro Castillo , 212 F. App'x 844 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 22, 2006
No. 06-13295 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-00714-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO CASTILLO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 22, 2006)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Pedro Castillo, a federal prisoner proceeding pro se, appeals the denial of his
post-judgment motions to compel the government to file a motion under
Fed.R.Crim.P. 35(b), pursuant to 28 U.S.C. § 1361, and to alter or amend judgment
for reconsideration of the district court’s denial of his motion to compel, which he
styled as a Fed.R.Civ.P. 59(e) motion to alter or amend judgment. On appeal, he
argues that the district court erred in denying his motions because the
government’s refusal to file an additional motion for a sentence reduction was
based on unconstitutional motives.
We must first resolve jurisdictional issues before we address the merits of
underlying claims. See United States v. Kapelushnik, 306 F.3d 1090, 1093 (11th
Cir. 2002). We review questions of subject matter jurisdiction de novo. United
States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
Rule 35(b)(2) provides that, after a sentence has been imposed, upon motion
of the government made more than one year after sentencing, a district court may
reduce a defendant’s sentence based on substantial assistance if the defendant’s
substantial assistance involved information (1) not known to the defendant; (2) not
useful to the government; or (3) the usefulness of which was not reasonably
anticipated by the defendant, until more than one year after sentencing.
Fed. R. Crim. P. 35(b)(2). We have held that this time period for filing a Rule
35(b) motion is jurisdictional. See United States v. Orozco, 160 F.3d 1309, 1313
(11th Cir. 1998).
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We have held that the government has “‘a power, not a duty, to file a motion
when a defendant has substantially assisted.’” United States v. Forney, 9 F.3d
1492, 1500 (11th Cir. 1998) (quoting Wade v. United States, 504 U.S. 181, 185,
112 S. Ct. 1840, 1843, 118 L. Ed. 2d 524 (1992)) (holding such in the context of
U.S.S.G. § 5K1.1). If the defendant alleges and makes a threshold showing that
the government’s refusal to file a substantial assistance motion was a breach of a
plea agreement, an evidentiary hearing and relief may be appropriate. United
States v. Gonsalves, 121 F.3d 1416, 1419-20 (11th Cir. 1997). However, where a
plea agreement requires the government to “consider” filing a Rule 35 motion, the
government does not breach the agreement by failing to file such a motion, and the
district court has no jurisdiction to review the claim of breach. See Forney, 9 F.3d
at 1499-1502.
The Supreme Court has held that “federal district courts [also] 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,” like “race or religion,” or was not “rationally related to any legitimate
[g]overnment end.” Wade, 504 U.S. at 185-86, 112 S.Ct. at 1843-44. A defendant
who merely claims to have provided substantial assistance or who makes only
generalized allegations of improper motive is not entitled to a remedy or even to
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discovery or an evidentiary hearing. Id. at 186, 112 S.Ct. at 1844. Thus, judicial
review is generally appropriate only when “there is an allegation and a substantial
showing that the prosecution refused to file a substantial assistance motion because
of a constitutionally impermissible motivation.” Forney, 9 F.3d at 1502 (emphasis
in original).
Upon review of the record and consideration of the briefs of the parties, we
find no reversible error.
The record clearly reflects that the district court did not have jurisdiction to
entertain Castillo’s motion. He alleged a plea breach and asked the district court to
conduct an evidentiary hearing, and if necessary, compel the government to file a
Rule 35(b) substantial assistance motion on his behalf, which he claimed was
promised to him in his plea agreement. However, the plea agreement clearly stated
that the government was not required to make a substantial assistance motion
regarding future cooperation, and Castillo acknowledged this. Since the
government only had to consider filing such a substantial assistance motion, it did
not breach the agreement by only filing a motion under § 5K1.1, and the district
court had no jurisdiction to review the claim of breach. Further, absent a threshold
showing of plea breach, the only way the district court would have had any power
to act on Castillo’s claim under Rule 35 was if he alleged and made a substantial
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showing of an unconstitutional motive. Though Castillo alleged an
unconstitutional motive, he did not make a substantial showing that the
government’s refusal to file a substantial assistance motion, either before or after
sentencing, was based on suspect reasons, such as his race or religion, or that its
refusal was not related to a legitimate government end. Furthermore, even
assuming that the district court was authorized to compel the government to file a
Rule 35(b) motion, it appears that such a motion would be untimely, and therefore,
that the district court would be without jurisdiction to consider it. Thus, Castillo
cannot show that he was entitled to judicial review of the government’s refusal to
file a substantial assistance motion. Accordingly, we affirm.
AFFIRMED.
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