FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 September 6, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-10217

Non-Argument Calendar

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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
Prior to its amendment, effective November 1, 1987, Rule 35 authorized district courts

1

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

Agreement; Motion for Sentence Reduction (Fed.R.Crim.P. 35(b)).” In his 1

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).
3

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.