Opinion
CASE NO.: 1:08-cr-20231-PCH
09-26-2017
UNITED STATES OF AMERICA, v. PEDRO GALLEGO, Defendant.
ORDER ON REPORT AND RECOMMENDATION
THIS MATTER is before the Court on a Report and Recommendation (the "Report") [D.E. 340], issued June 16, 2017, by the Honorable Chris McAliley, United States Magistrate Judge. On April 18, 2017, the Movant, Pedro Gallego, filed a Motion to Compel Performance of Agreement (the "Motion") [D.E. 328]. The United States filed a Response [D.E. 332] and Gallego filed a Reply [D.E. 336]. The Motion was referred to Magistrate Judge McAliley for her consideration and a Report pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge McAliley issued the Report, in which she recommends that the Motion be denied [D.E. 340] because Gallego has not made a "substantial threshold showing" that "the refusal [to file a Rule 35 Motion] was based on an unconstitutional motive, such as race or religion, or demonstrate[s] that the refusal was not rationally related to any legitimate government end." See United States v. Johns, 548 Fed. Appx. 581, 583-84 (11th Cir. 2013).
The parties were afforded the opportunity to file objections to the Report. Gallego filed objections [D.E. 348], to which the United States responded [D.E. 349] and Gallego replied [D.E. 350]. Through the briefing, both sides have adequately laid out their version of the facts and the law that supports their respective positions. The Court has conducted a de novo review of the entire file. Being otherwise duly advised, the Court adopts the findings of fact and conclusions of law in the Report. In doing so, the Court notes that Gallego repeatedly asserts that he provided what he believes is substantial assistance and notes statements made by various Assistant U.S. Attorneys throughout the course of this case. However, Gallego never makes a "substantial threshold showing" that the government's decision is not rationally related to a legitimate government end. "Because [defendant] does little more than recount the assistance he provided to the government . . . he fail[s] to meet th[e] [Wade] standard, and thus he [is] not entitled to a remedy or to even an evidentiary hearing." Id. at 584. Accordingly, it is hereby
ORDERED and ADJUDGED that the Report and Recommendation of Magistrate Judge Chris McAliley is hereby ADOPTED and approved in its entirety. Plaintiff's Motion to Compel [D.E. 328] is DISMISSED with PREJUDICE.
DONE AND ORDERED in Chambers, Miami, Florida, September 26, 2017.
/s/_________
PAUL C. SUCK
UNITED STATES DISTRICT JUDGE Copies furnished to
All Counsel of Record Pedro Gallego
No. 39297-004
Pollock FCI
Inmate Mail/Parcels
P.O. Box 4050
Pollock, LA 71467