United States v. Pedro Rosero Bonilla

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 1, 2020
• Docket: 19-14949
• Status: Unpublished

Opinion

Case: 19-14949 Date Filed: 10/01/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14949 Non-Argument Calendar ________________________

D.C. Docket No. 8:15-cr-00194-SDM-UAM-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO ROSERO BONILLA,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(October 1, 2020)

Before MARTIN, ROSENBAUM, and BRASHER, Circuit Judges.

PER CURIAM: Case: 19-14949 Date Filed: 10/01/2020 Page: 2 of 4

Appellant Pedro Bonilla, pro se, appeals the district court’s order denying his

motion to compel the government to file a sentence-reduction motion under Rule

35(b). Bonilla argues that the government breached the plea agreement when it failed

to file a Rule 35(b) motion. The government responds that the plea agreement gave

it discretion to file or not to file that motion. After a careful review, we affirm.

Bonilla pleaded guilty to drug trafficking. As part of his plea agreement, the

government promised to consider whether Bonilla’s post-sentencing “cooperation

qualifi[ed] as ‘substantial assistance’ … warranting the filing of a motion for a

reduction of sentence within one year of the imposition of sentence pursuant to Fed.

R. Crim. P. 35(b).” The written plea agreement made explicit that “the defendant

understands that the determination as to whether ‘substantial assistance’ has been

provided or what type of motion related thereto will be filed, if any, rests solely with

the United States Attorney for the Middle District of Florida, and the defendant

agrees that defendant cannot and will not challenge that determination.”

At Bonilla’s plea hearing, the court reviewed the terms of Bonilla’s plea

agreement. Bonilla swore that he understood that the government would “decide

whether [his] cooperation [was] important enough to be called substantial assistance

… [and that] the [g]overnment may file a motion for a substantial assistance

reduction on [his] sentence.” He further agreed that he understood the “decision

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about whether [he] provided substantial assistance” would be made by the

government, and he could not “challenge that decision.”

Years after his plea and sentencing, Bonilla inquired about a Rule 35(b)

motion based on information he had given to the government. His attorney spoke to

the government’s lawyer and explained to Bonilla that the government would not

file a Rule 35(b) motion unless it could independently corroborate Bonilla’s

information and bring a criminal case. Bonilla moved pro se to compel the

government to file a Rule 35(b) motion based on his substantial assistance. The

district court denied Bonilla’s motion.

If a defendant cooperates with the government and provides “substantial

assistance,” the government may choose to file a motion requesting a reduced

sentence. See Fed. R. Crim. P. 35(b). Because the decision is discretionary, courts

generally may not review the government’s refusal to file a Rule 35(b) motion unless

the defendant makes a substantial showing that the government’s refusal was based

on unconstitutional motives, Wade v. United States, 504 U.S. 181, 185–86 (1992),

or that the refusal breached the plea agreement, see United States v. Gonsalves, 121

F.3d 1416, 1419 (11th Cir. 1997).

Liberally construed, Bonilla asserts that the government breached the plea

agreement by not filing a Rule 35(b) motion. See Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998) (“Pro se pleadings are held to a less stringent

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standard than pleadings drafted by attorneys and will, therefore, be liberally

construed.”). We review de novo whether the government breached the plea

agreement. United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004).

We agree with the district court that the government did not breach the plea

agreement. The government agreed to consider filing a motion, but it did not promise

to file one. Bonilla stated under oath at his plea hearing that he understood that the

plea agreement meant that the government “may” file a Rule 35(b) motion, the

government had complete discretion to determine whether he had provided

substantial assistance, and the government promised only to consider filing a Rule

35(b) motion. That understanding of the plea-agreement language was objectively

reasonable. See id. at 1105. And his attorney’s letter, which he attached to his

motion, establishes that the government did consider whether he had provided

substantial assistance and decided that he had not. We have previously held that the

government does not breach a plea agreement like this one when the government

agrees to consider filing a motion, does consider filing a motion, but chooses not to

file one. See United States v. Forney, 9 F.3d 1492, 1499–1500 n.2 (11th Cir. 1993).

Accordingly, we affirm.

AFFIRMED.