[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 10588 Non

- Argument Calendar

________________________ D.C. Docket No. 1:13

- cr - 20248

- JEM

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus WILLIAM OB REGON PAREDES, a.k.a. Tio Bavario, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Southern District of F lorida

________________________ ( November 26, 2019 ) Before WILSON , WILLIAM PRYOR and JILL PRYOR , Circuit Judges. PER CURIAM:

Case: 19-10588 Date Filed: 11/26/2019 Page: 1 of 52 William Obregon Paredes, proceeding pro se , appeals the district court’s denial of his motion to compel the government to file a motion for sentence reduction under Federal Rule of Criminal Procedure 35(b) . He argues that he is entitled to such a motion based on the substantial assistance he provided after sentencing , and that the government’s failure to file a Rule 35(b) motion is a breach of his plea agreement. For context, P aredes pled guilty pursuant to a written plea agreement , which stated If in the sole and unreviewable judgment of [the government ] the defen dant’s cooperation is of such quality and significance to the investigation or prosecution of other criminal matters as to warrant the Court’s downward departure from [the guideline range], [the government] may make a motion prior to sentencing pursuant to Section 5K1.1 . . . , or subsequent to sentencing pursuant to Rule 35 . . . informing the Court that the defendant has provided substantial assistance and recommending that the defendant’s sentence be reduced. The defendant understands and agrees, howeve r, that nothing in this agreement requires [the government] to file any such motions, and that [ its ] assessment of the quality and significance of the defendant’s cooperation shall be binding as it relates to the appropriateness of [its] filing or non - fili ng of a motion to reduce sentence. The presentence investigation report indicated that Paredes’s guideline range was 135 to 168 months ’ imprisonment , t he statutory minimum sentence was 10 years’ imprisonment, and the statutory maximum was life imprisonmen t. However, because Paredes met the criteria of 18 U.S.C. § 3553(f)(1)

– (5), the

Case: 19-10588 Date Filed: 11/26/2019 Page: 2 of 53 district court could impose a sentence regardless of the statutory minimum. At sentencing, the government moved for a sentence reduction under U.S.S.G. § 5K1.1 , based on Pare des’s substantial cooperation with the government prior to sentencing. Specifically, the government recommended a sentence of 135 months’ imprisonment, reduced by 40 percent to 81 months’ imprisonment. The district court granted the § 5K1.1 motion . It i mposed a downward variance to 1 20 months’ imprisonment before applying the 40 percent reduction, resulting in a 72

- month sentence. Paredes then filed this motion to compel the government to file a Rule 35(b) motion, asserting that he had provided substantial assistance after sentencing and that the government breached the plea agreement by failing to file a Rule 35(b) motion. The district court d enied the motion

. Because Paredes has not shown that the government’s refusal to file a Rule 35(b) motion was motivated by an unconstitutional motive or constituted a breach of the plea agreement , we affirm the district court.
I We review de novo whether the district court may compel the government to file a substantial

- assistance motion. See United States v. Forney , 9 F.3d 1492, 1498 (11th Cir. 1993)

. Additionally, we review de novo whether the government

Case: 19-10588 Date Filed: 11/26/2019 Page: 3 of 54 has breached a plea agreement. United States v. Copeland , 381 F.3d 1101, 1104 (11th Cir. 2004). Under § 5K1.1, a court may depart from the advisory guideline range at sentencing if the government files a motion “stating that the defendant has provided substantial assistance in the investigation or prosecution of another.” U.S.S.G. § 5K1.1. Similarl y, Rule 35(b) provides that a district court may reduce a defendant’s sentence for providing substantial assistance after sentencing, if the government moves for such a reduction within one year of his sentence. Fed. R. Crim. P. 35(b)(1). “[ T ] he governme nt has a power, not a duty, to file a motion when a defendant has substantially assisted

. ” United States v. Dorsey , 554 F.3d 958, 961 (11th Cir. 2009) (internal quotation marks omitted)

. The government’s discretion to refuse to file a substantial

- assis tance motion is subject to judicial review in only two circumstances. First, it is reviewable if the refusal constitutes a breach of the plea agreement. See United States v. Gonsalves , 121 F.3d 1416, 1419 (11th Cir. 1997) (discussing motions under § 5K1. 1)

. Second, its discretion is subject to review if it is based on an unconstitutional motive, such as the defendant’s race or religion. See Wade v. United States , 504 U.S. 181, 185

– 86 (1992) (discussing motions under § 5K1.1); United States v. McNeese , 5 47 F.3d 1307, 1308 (11th Cir. 2008) (extending Wade to Rule 35(b) motions). We have previously concluded that the government’s refusal to file a

Case: 19-10588 Date Filed: 11/26/2019 Page: 4 of 55 substantial

- assistance motion is not a breach of a plea agreement that merely provides that the government wil l “consider” filing such a motion. See Forney , 9 F.3d at 1499

– 15 00 & n.2. Here, the district court did not err in denying Paredes’s motion . First, he did
not allege or show that the government had an unconstitutional motivation for refusing to file a Rule 35(b) motion. See Wade , 504 U.S. at 185

– 86 ; McNeese , 547 F.3d at 1308

. Furthermore, he did not show that the government breached the plea agreement , as the plain language of the agreement gave the government the discretion to determine whether to file a Rule 35(b) motion. See Forney , 9 F.3d
at 1499

– 15 00 & n.2

. Accordingly, we affirm. AFFIRMED . Case: 19-10588 Date Filed: 11/26/2019 Page: 5 of 5