United States v. Alfonso Hernandez , 149 F. App'x 872 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 6, 2005
No. 05-10217
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00209-CR-T-26-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 6, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Alfonso Hernandez appeals the denial of his “Motion to Enforce Plea
Agreement; Motion for Sentence Reduction (Fed.R.Crim.P. 35(b)).” 1 In his
motion, Hernandez argues that the government breached the plea agreement by
failing to debrief him or otherwise provide him with an opportunity to cooperate.
According to the government, we should dismiss Hernandez’s appeal
because in the plea agreement he waived (1) any challenge to the government’s
decision not to file a substantial assistance motion, and (2) the right to challenge
his sentence. Although we have not specifically addressed whether a defendant
may knowingly and voluntarily waive his right to challenge the government’s
decision not to debrief him in relation to the possible filing of a substantial
assistance motion, we have upheld such waivers with regard to the government’s
refusal to file a substantial assistance motion. See United States v. Benitez-Zapata,
131 F.3d 1444, 1446 (11th Cir. 1997) (holding that the defendant waived his right
to challenge the government’s refusal to file a § 5K1.1 motion for a downward
departure).
1
Prior to its amendment, effective November 1, 1987, Rule 35 authorized district courts
to hear motions for correction of a sentence filed by any party. United States v. Weaver, 884
F.2d 549, 550 (11th Cir. 1989). The current version of Rule 35(b), however, permits the district
court, “[u]pon the government’s motion made within one year of sentencing . . .[to] reduce a
sentence if . . . the defendant, after sentencing, provided substantial assistance in investigating or
prosecuting another person[.]” Fed. R. Crim. P. 35(b)(1) (emphasis added). Accordingly, the
plain language of the rule as currently written does not permit defendants to move for reductions
of their sentences. Weaver, 884 F.2d at 550. Consequently, to the extent that Hernandez’s
motion also was a Rule 35(b) motion to reduce his own sentence, the district court lacked
jurisdiction to consider it.
2
Even if Hernandez’s waiver does not encompass the government’s decision
not to debrief him, we nevertheless conclude that the district court did not err in
denying Hernandez’s motion to enforce the plea agreement. 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). The
government violates a plea agreement when its conduct is inconsistent with the
terms that reasonably were understood by the defendant when entering the plea of
guilty. United States v. Nelson, 837 F.2d 1519, 1521-22 (11th Cir. 1988). When
guilty pleas rest on promises that can be said to be a part of the inducement or
consideration, such a promise must be fulfilled. United States v. Copeland, 381
F.3d 1101, 1105 (11th Cir. 2004).
Although Hernandez argues that the government breached the plea
agreement by failing to interview him, the plea agreement in this case did not
explicitly or implicitly obligate the government to give Hernandez the opportunity
to provide substantial assistance. Since the government did not promise to debrief
Hernandez, the government’s failure to debrief him was not a breach of the plea
agreement. Accordingly, we affirm the district court’s denial of Hernandez’s
motion.
AFFIRMED.
3