FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 APRIL 2, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14616

Non-Argument Calendar

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D. C. Docket No. 05-20892-CR-ASG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ERNESTO PEREZ-MORALES,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(April 2, 2009)

Before BIRCH, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

Jose Ernesto Perez-Morales (“Morales”), a federal prisoner proceeding pro
se, appeals the district court’s denial of his motion for a Fed. R. Crim. P. (“Rule”)

35(b) sentence reduction. The district court rejected Morales’s argument that the

government breached the plea agreement and concluded that it lacked jurisdiction

to review the government’s decision not to file a Rule 35(b) motion. After a

thorough review, we affirm.

I. BACKGROUND

Morales pleaded guilty to one count of conspiracy to possess with intent to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. The

written plea agreement contained the following provision regarding Morales’s

cooperation with the government:

If in the sole and unreviewable judgment of this Office the

defendant’s cooperation is of such a quality and significance to the

investigation or prosecution of other criminal matters as to warrant the

court’s downward departure . . . this Office may at or before

sentencing make a motion consistent with the intent of Section 5K1.1

of the Sentencing Guidelines prior to sentencing, or Rule 35 of the

Federal Rules of Criminal Procedure subsequent to sentencing,

reflecting that the defendant has provided substantial assistance and

recommending that the defendant’s sentence be reduced . . . . The

defendant acknowledges and agrees, however, that nothing in this

Agreement may be construed to require this Office to file any such

motions and that this Office’s assessment of the nature, value,

truthfulness, completeness, and accuracy of the defendant’s

cooperation shall be binding insofar as the appropriateness of this

Office’s filing of any such motion is concerned.

The Presentence Investigation Report (“PSI”) identified Morales’s guideline

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sentencing range as 70-87 months’ incarceration. The district court ultimately

sentenced Morales to 70 months’ imprisonment. The government did not file a

motion for a reduction based on substantial assistance.

Morales filed a pro se motion in district court requesting the court to compel

the government to honor its agreement by filing a Rule 35(b) motion based on his

testimony against a co-defendant, as well as other substantial assistance. This was

denied, as was a later motion for a reduction of his sentence or downward

departure. This appeal followed.

II. STANDARDS OF REVIEW

We construe briefs filed by pro se litigants liberally. Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998). We review de novo whether the

government has breached a plea agreement. United States v. Mahique, 150 F.3d

1330, 1332 (11th Cir. 1998). We also review de novo whether the government can

be compelled to file a substantial assistance motion. See United States v. Forney, 9

F.3d 1492, 1498 (11th Cir. 1993). We review the district court’s denial of an

evidentiary hearing for an abuse of discretion. United States v. Gay, 251 F.3d 950,

951 (11th Cir. 2001).

III. DISCUSSION

A court may reduce a defendant’s sentence where the government moves for

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such a reduction under Rule 35(b) based on the defendant’s substantial assistance

in investigating or prosecuting another person. Fed. R. Crim. P. 35(b); see also

U.S.S.G. § 5K1.1. Morales argues that he is entitled to a reduction in his sentence

because he agreed to testify against his co-defendant and provided additional

information to the government. Morales contends that because the government did

not make such a motion, it breached the plea agreement and that he is now entitled

to specific performance of the agreement. He also argues that the district court

violated his Fifth and Eighth Amendment rights by not compelling the government

to move for a Rule 35(b) sentence reduction and that the district court abused its

discretion by declining to grant an evidentiary hearing as to whether Morales was

entitled to a Rule 35(b) sentence reduction. We disagree.

Although the government has the discretion to determine whether to file a

Rule 35(b) motion, in Wade v. United States, 504 U.S. 181 (1992), the Supreme

Court held that “federal district courts 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 . . . say, because of the

defendant’s race or religion.” Id. at 185-86.

Because Morales has not proven that the government acted with an

unconstitutional motive in declining to move for a sentence reduction, the district

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court lacked jurisdiction to compel the government to make a Rule 35(b) motion.

Morales seeks to satisfy the “unconstitutional motive” element by arguing that by

refusing to file the motion, the district court violated Morales’s due process rights

and infringed on his liberty rights, in violation of the Fifth and Eighth

Amendments. This argument is unavailing for two reasons. First, it treats the

refusal to file the motion as the cause of a constitutional violation, whereas the

Supreme Court requires that, in order to obtain relief, the government’s refusal to

file the motion must be “based on an unconstitutional motive.” Second, Wade is

limited to the types of impermissible prosecutorial motives described by the

Supreme Court, namely those based on, “race, religion or other arbitrary

classification.” Forney, 9 F.3d at 1501 n.4 (citing Wade, 504 U.S. at 186); see

United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008) (“The

government’s desire to retain some control over McNeese’s sentence is not of the

same ilk as those unconstitutional motives described by the Supreme Court,

namely the defendant’s race or religion.”). Morales does not assert that the

government declined to make a Rule 35(b) motion based on one of the

unconstitutional motives described by the Court in Wade. We therefore conclude

that the district court lacked the authority to compel the government to make a

Rule 35(b) motion based on Morales’s alleged substantial assistance.

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Next, the district court did not abuse its discretion in declining to conduct an

evidentiary hearing as to whether the government violated Morales’s rights in

refusing to file the Rule 35(b) motion. A defendant is not entitled to an evidentiary

hearing simply because he alleges that he “provided substantial assistance or []

makes only generalized allegations of an improper motive.” United States v.

Dorsey, 554 F.3d 958, 961 (11th Cir. 2009). It is only where there is an “an

allegation and a substantial showing” of an unconstitutional prosecutorial motive

that an evidentiary hearing is appropriate. Id. (quoting Forney, 9 F.3d at 1502)

(emphasis in original). Because we conclude that Morales has not made a

substantial showing that the government declined to file a Rule 35(b) motion

because of an unconstitutional motive, the district court did not abuse its discretion

by refusing to grant an evidentiary hearing on this issue.

Finally, we conclude that the government did not breach the plea agreement

by declining to move for a Rule 35(b) sentence reduction. The plea agreement

specifically stated the government would file a Rule 35(b) motion if, in its “sole

and unreviewable judgment,” it determined that such a motion was warranted.

This court has held that such language precludes courts “from intruding into

prosecutorial discretion.” Forney, 9 F.3d at 1501. The plea agreement at issue in

Morales’s case did not obligate the government to file a Rule 35(b) motion,

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therefore the government did not breach the agreement by declining to seek a

reduction of Morales’s sentence.

IV. CONCLUSION

For the reasons stated, we affirm the district court.

AFFIRMED.

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