[DO NOT PUBLISH]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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