United States v. Reginald Ware

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14878
Non-Argument Calendar
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D.C. Docket No. 0:07-cr-60143-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD WARE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 23, 2013)
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Reginald Ware, a federal prisoner proceeding pro se, appeals the district
court’s denial of his post-judgment motion to withdraw his plea because the
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government did not file a motion recognizing his substantial assistance under
Fed.R.Crim.P. 35(b) (“Rule 35(b)”), in relation to his conviction for possession
with intent to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. § 841(a)(1). For the reasons set forth below, we affirm the district court’s
denial of Ware’s motion to withdraw his plea.
I.
In 2007, Ware pled guilty pursuant to a written plea agreement to possession
with intent to distribute cocaine. In 2012, Ware filed a motion requesting the
district court to allow him to withdraw his guilty plea on the grounds that the
government breached his plea agreement by failing to make the extent of Ware’s
cooperation known to the court at sentencing and failing to file a motion to reduce
his sentence based on his substantial assistance to the government. The district
court denied Ware’s motion because, as the government had the sole discretion to
decide whether Ware had provided substantial assistance, he had to show the
denial of a constitutional right to prevail. However, he had failed to allege that the
government refused to move for a reduction of his sentence because of an
unconstitutional motivation. Ware filed a motion to reconsider the court’s order
denying his motion, which the district court denied.
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II.
On appeal, Ware argues that the district court erred in denying his motion to
withdraw his plea. He contends that the government breached his plea agreement
by failing to make the extent of his cooperation known to the court at sentencing,
by failing to file a U.S.S.G. § 5K1.1 motion prior to sentencing, and by failing to
file a Rule 35 motion after sentencing. He claims that, as the government had
conceded in a letter that it had begun an investigation into drug-trafficking activity
based on information Ware had provided and had prosecuted several individuals
based on its investigation, the government was obligated to file a
substantial-assistance motion. Ware further argues that the district court abused its
discretion by denying his motion for reconsideration.
Whether the government breached a plea agreement is a question of law that
we review de novo. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir.
2008). We also review de novo whether the district court has the authority to
compel the government to file a substantial-assistance motion. See United States v.
Forney, 9 F.3d 1492, 1498 (11th Cir. 1993) (concerning the authority of the court
to depart downward in the absence of a substantial-assistance motion in the context
of § 5K1.1). We review the denial of a motion for reconsideration for abuse of
discretion. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004). Pro se
pleadings are construed liberally. Tannenbaum v. United States, 148 F.3d 1262,
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1263 (11th Cir. 1998).
In Santobello v. New York, the Supreme Court held that, when a plea rests in
any significant degree on a promise by the government, such that it can be said to
be part of the inducement or consideration for the plea, such a promise must be
fulfilled. 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). Where the
government fails to fulfill a promise that induced a guilty plea, the court that
sentenced the defendant has the discretion to fashion an appropriate remedy, such
as allowing the defendant to withdraw his guilty plea or ordering specific
performance. Id. at 262-63, 92 S.Ct. at 499. However, where a plea agreement
requires the government only to “consider” filing a substantial-assistance motion
and places the decision “solely” in the hands of the government, the government
has not failed to fulfill any promise. See Forney, 9 F.3d at 1499-1500 (addressing
government’s refusal to file a § 5K1.1 motion). Under these circumstances, the
Supreme Court has held that federal courts only 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. United States v.
Wade, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 1843-44, 118 L.Ed.2d 524 (1992)
(addressing government’s refusal to file a § 5K1.1 motion). Thus, judicial review
is appropriate only where there is an allegation and a substantial showing that the
government refused to file a substantial-assistance motion because of a
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constitutionally impermissible motivation. Forney, 9 F.3d at 1502. Otherwise,
courts are precluded from intruding into prosecutorial discretion. Id. at 1501.
Here, the district court properly denied Ware’s 2012 motion. In his plea
agreement the government reserved the right to make his cooperation known to the
court at the time of sentencing, and the government did not agree to inform the
court as to Ware’s cooperation at sentencing. The government also did not agree
to file a § 5K1.1 or Rule 35(b) motion in his plea agreement, but rather indicated
that its decision concerning the motion was in its sole and unreviewable discretion.
At his plea hearing, Ware indicated that he had discussed the terms of his plea
agreement with his counsel and understood the agreement’s terms. Thus, Ware
failed to show that the government failed to fulfill a promise that induced his guilty
plea, and he is not entitled to any relief under Santobello. See Santobello, 404 U.S.
at 262-63, 92 S.Ct. at 499; Forney, 9 F.3d at 1499-1500. Moreover, Ware did not
make any allegation in the instant motion or on appeal that the government refused
to file a substantial-assistance motion on the basis of a constitutionally
impermissible motivation. Thus, the district court lacked the authority to review
the government’s decision not to file a substantial-assistance motion, and the court
did not err in denying his motion. Forney, 9 F.3d at 1502. As the court did not err
in denying his motion, the court also did not abuse its discretion in denying his
motion for reconsideration of the denial of his motion.
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For the foregoing reasons, we affirm the district court’s denial of Ware’s
motion to withdraw his plea.
AFFIRMED.
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