United States v. Miryan Garcia , 201 F. App'x 724 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 23, 2006
No. 05-14595 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60311-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIRYAN GARCIA,
a.k.a. Migi,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 23, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Miryan Garcia appeals her 30-month sentence for conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h). On appeal, Garcia argues
that the district court erred by concluding that the government did not breach the
plea agreement by failing to file a U.S.S.G. § 5K1.1 motion. After careful review,
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).
The Sentencing Guidelines provide that “[u]pon motion of the government
stating that the defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense, the court may depart
from the guidelines.” U.S.S.G. § 5K1.1. “[T]he decision to file a § 5K1.1 motion
for downward departure from the Sentencing Guidelines . . . lies within the sound
discretion of the Government.” United States v. Alvarez, 115 F.3d 839, 841 (11th
Cir. 1997). The Supreme Court has made clear that “ § 5K1.1 . . . gives the
Government a power, not a duty, to file a motion when a defendant has
2
substantially assisted.” Wade v. United States, 504 U.S. 181, 185 (1992). Of
course, the prosecutor’s discretion when exercising that power is subject to
constitutional limitations. United States v. Forney, 9 F.3d 1492, 1501 (11th Cir.
1993). While we 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,” such as the defendant’s race or religion, we
will not review the government’s decision to file, or not to file, a substantial-
assistance motion in the absence of an unconstitutional motive. Wade, 504 U.S. at
185-86. Put another way, our 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.
Here, by the plea agreement’s own terms, the government reserved the
unfettered right to evaluate the nature and extent of Garcia’s cooperation, and to
decide whether Garcia’s cooperation warranted the filing of a § 5K1.1 motion.
Garcia agreed “that nothing in the agreement may be construed to require the
government to file such a motion” and “that the U.S. Attorney’s Office for the
Southern District of Florida’s assessment of the nature, value, truthfulness,
completeness, and accuracy of the defendant’s cooperation shall be binding on the
3
defendant.” Garcia makes neither an allegation nor a substantial showing of a
constitutionally impermissible motivation, taking issue only with the government’s
assessment of her assistance. On this record, particularly in light of the plain terms
of the plea agreement, the government’s decision not to file a substantial-assistance
motion was entirely permissible and did not amount to a breach of the plea
agreement.
AFFIRMED.
4