“New” Post-Sentencing Cooperation Evidence Does Not Compel Rule 35(b) Relief When the Plea Agreement Vests Sole Discretion in the Government (Absent Unconstitutional Motive)

Introduction

United States v. Thomas Guerriero (11th Cir. Jan. 22, 2026) addresses a recurring post-sentencing dispute: when a defendant believes he provided substantial assistance after sentencing, can a court force the government to file a sentence-reduction motion under Federal Rule of Criminal Procedure 35(b) based on a plea agreement?

Thomas Guerriero pleaded guilty in the Southern District of Florida to conspiracy to commit mail and wire fraud. His plea agreement contained a cooperation clause expressly reserving to the U.S. Attorney’s Office the “sole and unreviewable judgment” to evaluate whether his cooperation warranted a substantial-assistance motion. After sentencing (151 months plus supervised release), Guerriero repeatedly sought “specific performance” of the agreement, asserting the government acted in bad faith by refusing to file a Rule 35(b) motion.

The key issues on appeal were (1) whether Guerriero’s 2024 motion should be treated as an attempt to revisit the district court’s 2017 denial of similar relief, and (2) whether “new” post-2017 evidence of alleged assistance can alter the outcome when the plea agreement leaves Rule 35(b) motion-filing to the government’s discretion.

Summary of the Opinion

The Eleventh Circuit affirmed. It held that the district court did not err in treating Guerriero’s 2024 “motion to enforce specific performance” as, in substance, a motion asking the court to reconsider its 2017 decision denying the same requested relief. The court further held that even assuming Guerriero produced new post-2017 evidence of cooperation, it did not supply a basis for relief because the decision whether the defendant provided “substantial assistance,” and whether to file a Rule 35(b) motion, rests solely with the government absent a substantial threshold showing of an unconstitutional motive.

In a notable procedural ruling, the panel rejected the government’s argument (raised for the first time on appeal) that the motion should be dismissed as an unauthorized successive § 2255 petition, reasoning that the 2017 filing—though it mentioned § 2255 in passing— was not treated by the district court as a § 2255 motion, so § 2255(h)/§ 2244(b)(3)(A) preauthorization requirements were not triggered.

Analysis

Precedents Cited

1. United States v. McNeese

United States v. McNeese supplies the central rule: the government alone decides whether a defendant’s assistance qualifies as “substantial” and whether to file a Rule 35(b) motion. Judicial review of a refusal to file is sharply limited—available only if the defendant makes a “substantial threshold showing” that the refusal was based on an unconstitutional motive (the opinion gives examples such as race or religion).

McNeese effectively foreclosed Guerriero’s attempt to convert new factual allegations of assistance into a judicially enforceable right to a reduction, because the plea agreement also explicitly vested discretion in the government and made its assessment “binding” on the filing/non-filing decision.

2. United States v. Simms

United States v. Simms provided the standard of appellate review: denial of a motion for reconsideration is reviewed for abuse of discretion. That deferential lens mattered because Guerriero was, in substance, asking the court to disturb a prior post-judgment determination.

3. Diveroli v. United States

Diveroli v. United States elaborated what constitutes an abuse of discretion (e.g., applying the wrong legal standard, unreasonable application of law, improper procedure, or clearly erroneous fact findings). The panel used this framework to conclude the district court acted within permissible bounds by denying reconsideration-like relief when governing law gave the court no authority to compel a Rule 35(b) filing on the showing made.

4. Wilchombe v. TeeVee Toons, Inc.

Wilchombe v. TeeVee Toons, Inc. was cited for a core limitation on reconsideration practice: such motions cannot be used to relitigate old matters or re-argue issues that were—or could have been—resolved earlier. The Eleventh Circuit applied that principle to Guerriero’s renewed challenges to the government’s 2017 representations and to his overall attempt to re-open the same dispute.

Legal Reasoning

Characterization of the 2024 motion: The court looked past Guerriero’s label (“motion to enforce specific performance”) and assessed the function of the filing. Because the 2017 order already held that the plea agreement gave the government sole discretion and that there was no bad faith or unconstitutional motive shown, Guerriero’s 2024 request for the same Rule 35(b) relief—now supplemented with post-2017 materials—was treated as an effort to revisit and undo that prior determination.
Limits on reconsideration and relitigation: To the extent Guerriero attacked the government’s alleged misstatements in 2017, the panel viewed this as an improper relitigation strategy under Wilchombe’s reconsideration principles.
Why “new evidence” did not change the legal outcome: Even crediting that Guerriero’s evidence post-dated 2017, the panel reasoned it still could not justify court-ordered relief because the decisive legal premise remained: under the plea agreement and McNeese, the substantial-assistance assessment and decision to move under Rule 35(b) belongs to the government. Without an allegation and threshold showing of an unconstitutional motive, the court lacks power to review the refusal or force a filing.
Successive § 2255 argument rejected: Although the 2017 motion referenced § 2255 “in passing,” the panel emphasized how it was treated procedurally: it was not docketed or decided as a § 2255 motion, and the district court’s order did not invoke § 2255 standards. Therefore, the later filing did not trigger the successive-motion gatekeeping provisions under § 2244(b)(3)(A) and § 2255(h) on this record.

Impact

Reinforcement of Rule 35(b) discretion clauses: The decision underscores that plea agreements reserving “sole and unreviewable” discretion to prosecutors will be enforced as written, and “new” cooperation evidence—standing alone—will not create judicial authority to compel a Rule 35(b) motion.
Practical narrowing of post-judgment litigation routes: Defendants seeking Rule 35(b) relief via “specific performance” motions may find such filings treated as reconsideration of earlier denials when the relief sought and the legal theory are materially the same.
Procedural caution on successive-collateral-attack arguments: The panel’s rejection of the successive § 2255 characterization illustrates that “successiveness” can turn not only on how a movant labels a filing, but also on how the district court actually treated and adjudicated the prior motion.
Limits of “bad faith” framing: The opinion signals that alleging “bad faith” without tying the refusal to an unconstitutional motive (as framed in McNeese) is unlikely to open the door to judicial review of non-filing decisions when discretion is reserved to the government.

Complex Concepts Simplified

Rule 35(b) (Substantial Assistance Reduction): A mechanism allowing a sentencing court to reduce a sentence only if the government files a motion stating the defendant provided substantial assistance. Without the government’s motion, the court generally cannot grant the reduction.
“Sole and unreviewable judgment” cooperation clauses: Plea provisions stating that prosecutors alone decide whether cooperation is significant enough to justify requesting a sentence reduction. Such clauses sharply limit a defendant’s ability to force performance.
Judicial review limited to unconstitutional motive: Under McNeese as applied here, courts will not review a prosecutor’s refusal to file a Rule 35(b) motion unless the defendant makes a substantial threshold showing that the refusal was based on an unconstitutional reason (e.g., discrimination based on race or religion).
Motion for reconsideration: A request for the same court to revisit an earlier order. It is not an opportunity to re-argue the case simply because the movant disagrees with the outcome; courts typically bar relitigation of already-decided issues.
Successive § 2255 motion: A second (or later) motion to vacate a federal sentence that usually requires advance authorization from the court of appeals. This opinion highlights that the successive-motion rules may not be triggered if the earlier filing was not actually treated as a § 2255 motion by the district court.

Conclusion

The Eleventh Circuit’s decision affirms a stringent division of authority in substantial-assistance litigation: where the plea agreement and governing precedent place Rule 35(b) motion decisions solely with the government, courts will not compel a filing based on “new” cooperation evidence absent a substantial threshold showing of an unconstitutional motive. The opinion also clarifies a procedural nuance—successive § 2255 barriers may depend on how the earlier post-conviction motion was actually processed and adjudicated, not merely on a passing reference to § 2255.