Filed: Jul. 10, 2017
Latest Update: Mar. 03, 2020
Summary: Case: 15-15738 Date Filed: 07/10/2017 Page: 1 of 20 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 15-15738 _ D.C. Docket No. 2:06-cr-00022-KD-B-1 UNITED STATES OF AMERICA, Plaintiff-Appellant, versus KENDRICK MELTON, Defendant-Appellee. _ No. 15-15743 _ D.C. Docket No. 1:07-cr-00066-KD-M-2 UNITED STATES OF AMERICA, Plaintiff-Appellant, versus Case: 15-15738 Date Filed: 07/10/2017 Page: 2 of 20 GLENDA GUADALUPE FLORES, Defendant-Appellee. _ Appeals from the Unit
Summary: Case: 15-15738 Date Filed: 07/10/2017 Page: 1 of 20 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 15-15738 _ D.C. Docket No. 2:06-cr-00022-KD-B-1 UNITED STATES OF AMERICA, Plaintiff-Appellant, versus KENDRICK MELTON, Defendant-Appellee. _ No. 15-15743 _ D.C. Docket No. 1:07-cr-00066-KD-M-2 UNITED STATES OF AMERICA, Plaintiff-Appellant, versus Case: 15-15738 Date Filed: 07/10/2017 Page: 2 of 20 GLENDA GUADALUPE FLORES, Defendant-Appellee. _ Appeals from the Unite..
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Case: 15-15738 Date Filed: 07/10/2017 Page: 1 of 20
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15738
________________________
D.C. Docket No. 2:06-cr-00022-KD-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
KENDRICK MELTON,
Defendant-Appellee.
________________________
No. 15-15743
________________________
D.C. Docket No. 1:07-cr-00066-KD-M-2
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
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GLENDA GUADALUPE FLORES,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Alabama
________________________
(July 10, 2017)
Before ED CARNES, Chief Judge, ROSENBAUM and HIGGINBOTHAM, *
Circuit Judges.
ED CARNES, Chief Judge:
In negotiating a plea bargain both sides aim for the best terms they can get,
placing bets on what the future will hold. The problem is that the future and
certainty are strangers and not everyone wins a wager. Sometimes a deal, like a
tattoo, does not age well and what appeared to be attractive in the past seems
unattractive in the future. But plea agreements, like most tattoos, are written in
permanent ink and cannot be redrawn just because one party suffers from the plea
bargain form of buyer’s remorse. This case is here because two defendants
convinced the district court, over the government’s objections, to take up the
judicial pen and redraw their freely entered plea agreements whose ink had been
dry for nearly a decade.
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
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I. FACTS & PROCEDURAL HISTORY
A. Melton’s Plea Bargain
In July 2006, in keeping with a plea agreement that Kendrick Melton entered
into with the government, he pleaded guilty to (1) conspiracy to possess with intent
to distribute cocaine base and (2) possession of a firearm during a drug trafficking
offense. His guilty plea was accepted and he was convicted of those two crimes.
The plea agreement did not recommend any particular sentence; instead, it
said that “[t]he Court will impose the sentence in this case” and that “[t]he United
States Sentencing Guidelines apply in an advisory manner to this case.” The
agreement had this to say about the possibility of a downward departure:
If the defendant provides full, complete, truthful and substantial
cooperation to the United States, which results in substantial
assistance to the United States in the investigation or prosecution of
another criminal offense, a decision specifically reserved by the
United States in the exercise of its sole discretion, then the United
States agrees to move for a downward departure in accordance with
Section 5K1.1 of the United States Sentencing Guidelines or Rule 35
of the Federal Rules of Criminal Procedure, whichever the United
States deems applicable. The United States specifically reserves the
right to make the decision relating to the extent of any such departure
request made under this agreement based upon its evaluation of the
nature and extent of the defendant’s cooperation. The defendant
understands that the United States will make no representation or
promise with regard to the exact amount of reduction, if any, the
United States might make in the event that it determines that the
defendant has provided substantial assistance.
(Emphasis added.) It also provided that: “[T]he defendant reserves the right to
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petition the Court for resentencing pursuant to 18 U.S.C. § 3582 in the event of a
future retroactive amendment to the Sentencing Guidelines which would affect the
defendant’s sentence.” The agreement, however, did not mention 18 U.S.C. §
3553(e), which authorizes the district court, upon the government’s motion, to
impose a sentence below the statutory mandatory minimum.
Melton’s presentence investigation report (PSR) calculated a guidelines
range of 235 to 293 months imprisonment for his conspiracy charge. He was also
subject to a statutory mandatory minimum sentence of 120 months imprisonment
on that charge. 21 U.S.C. § 841(b)(1)(A). Additionally, Melton was facing a
mandatory, sixty-month sentence based on the firearms charge, and that sentence
had to be served consecutive to his conspiracy sentence. 18 U.S.C. §
924(c)(1)(A)(i), (D)(ii); U.S.S.G. § 5G1.2(a) (2005).1
Before the sentence hearing, which occurred in March 2007, and in keeping
with the plea agreement, the government moved for a downward departure under
U.S.S.G. § 5K1.1 based on Melton’s substantial assistance. It asked for a five-
level decrease in Melton’s offense level on the conspiracy count, which the district
1
A defendant’s eligibility for a sentence reduction under § 3582(c)(2) based on an
amendment to the guidelines is generally determined by using the guidelines manual in effect at
the time of the defendant’s original sentence, changing only the section later amended by the
Sentencing Commission. U.S.S.G. § 1B1.10(b)(1) (2014). Melton’s original PSR calculated his
guidelines range based on the 2005 guideline manual; Flores’s original PSR used the 2006
manual. None of the differences between those two manuals are relevant to this appeal.
Compare U.S.S.G. §§ 5G1.1, 5G1.2, 5K1.1 (2005), with U.S.S.G. §§ 5G1.1, 5G1.2, 5K1.1
(2006).
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court granted, resulting in a revised guidelines range of 135 to 168 months
imprisonment. The bottom of the revised range was 100 months below the bottom
of the unrevised range, and the top was 125 months below the top of the unrevised
range.
The district court on its own went further, varying down from the 135
months bottom of the revised sentence range an additional 15 months, resulting in
a 120 month sentence on the conspiracy count, which was the statutory mandatory
minimum. See 21 U.S.C. § 841(b)(1)(A). The district court also imposed the
statutorily mandated minimum sentence of 60 months imprisonment for the
firearms charge, which would run consecutively to the 120 month sentence on the
conspiracy charge. All seemed well and there was no appeal.
B. Flores’ Plea Bargain
In June 2007, in keeping with a plea agreement she entered into, Glenda
Flores pleaded guilty and was convicted of conspiracy to possess with intent to
distribute cocaine. Her agreement contained the same provisions about sentencing,
substantial assistance, and future guidelines amendments as Melton’s did. She had
an initial guidelines range of 168 to 210 months imprisonment.
Before sentencing, the government, in keeping with the plea agreement,
moved for a downward departure under § 5K1.1 based on the substantial assistance
that Flores had provided. It asked the district court to reduce the low end of
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Flores’ guidelines range by 25 percent. The court granted the § 5K1.1 motion,
resulting in a final guidelines range of 126 to 210 months. The court then varied
downward and imposed the statutory mandatory minimum sentence of 120 months
imprisonment. 21 U.S.C. § 841(b)(1)(A).
As in Melton’s case, the plea agreement said nothing about the government
filing an 18 U.S.C. § 3553(e) motion so that Flores could be sentenced below the
mandatory minimum. And the government clarified at her sentence hearing that it
was not filing a joint § 5K1.1 and § 3553(e) motion in her case. All seemed well
and there was no appeal.
C. Amendments to the Sentencing Guidelines
In 2014, Amendment 782 reduced the base offense levels applicable to a
number of drug offenses. U.S.S.G. App. C. Amend. 782 (2016); compare id.
§ 2D1.1(c) (2013), with
id. § 2D1.1(c) (2014). That guidelines amendment
became retroactive in 2015.
Id. App. C. Amend. 788 (2016).
If Amendment 782 had been promulgated before Melton was sentenced, his
guidelines range for the conspiracy charge would have been 121 to 151 months,
instead of 235 to 293 months. Id. § 2D1.1(c)(4); id. ch. 5, pt. A (2014). If the
government filed the same § 5K1.1 substantial assistance motion requesting a five-
level downward departure, Melton’s guideline range — assuming for the moment
that the 120-month mandatory minimum did not apply — would have been 77 to
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96 months on the conspiracy count.
If Amendment 782 had been promulgated before Flores was sentenced, her
guidelines range would have been 135 to 168 months, instead of 168 to 210
months. Id. § 2D1.1(c)(4), ch. 5, pt. A (2014). If the government filed the same
§ 5K1.1 substantial assistance motion requesting a twenty-five percent downward
departure from the low end of the guidelines range, Flores’ guideline range —
again assuming that the 120-month minimum did not apply — would have been
101 to 168 months.
D. Melton’s and Flores’ Motions to Reduce Their Sentence
After Amendment 782 became retroactive in 2015, Melton filed an 18
U.S.C. § 3582(c)(2) motion seeking to reduce the sentence that had been imposed
on him in 2007, and Flores filed a similar motion seeking to reduce the sentence
imposed on her in 2008. They argued that, if the Amendment could be coupled
with the § 5K1.1 substantial assistance motions that the government had filed
before the initial sentences were imposed, and if the government could be
persuaded or forced to file an 18 U.S.C. § 3553(e) motion authorizing the court to
depart below the statutory mandatory minimum, they might receive significantly
lower sentences.
The government opposed the motions, pointing out that it had not filed a
§ 3553(e) motion during the initial sentence proceedings to permit a sentence
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below the mandatory minimum, was not filing one now, and was convinced that it
could not file one in a § 3582(c)(2) post-amendment proceeding even if it wanted
to do so. As a result, according to the government, neither Melton nor Flores could
be sentenced below the statutory mandatory minimum sentences they had already
received.
The district court rejected the government’s position. It concluded that the
government would breach its plea agreements with Melton and Flores unless the
government acted to ensure that they received the same extent of downward
departure from their post-Amendment guidelines ranges that they had received
from the pre-Amendment ranges when they were initially sentenced. Although the
plea agreements had never required the government to request any particular
departure or assign a specific value to Melton’s and Flores’ assistance, the district
court believed that once the government assigned values to their assistance in its
§ 5K1.1 motions at their original sentence proceedings, those values — a five-level
downward departure for Melton and a 25 percent reduction in the lower end of the
guidelines range for Flores –– became part of the plea agreements even though the
government did not agree that they would or realize that they had.
As a result, the district court ruled that in order to ensure that the defendants
continued to receive in the new sentence proceedings the full benefit of their
substantial assistance, Melton had to be given the full value of a five-level
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downward departure from the post-Amendment 782 guidelines range and Flores
had to be given the full value of a 25 percent downward departure from the lower
end of the post-Amendment guidelines range.
The court recognized that the obstacle to implementing its vision of what
should be done was the statutory mandatory minimum of 120 months. If the
statutory minimum remained in place, Melton’s guidelines range could be reduced
by only one month as a result of the government’s § 5K1.1 motion (instead of the
44 months it had been reduced at the time of his original sentencing) and Flores’
guidelines range could be reduced by only 15 months (instead of the 34 months it
had been at the original sentencing). Each post-Amendment guidelines range
would be lower than the pre-Amendment guidelines ranges, but if the mandatory
minimum stayed in place the extent of the reduction because of substantial
assistance would not be nearly as great as the district court believed it should be.
The result, as the court viewed it, would be that Melton and Flores would be
deprived of the full value of their substantial assistance. And because the district
court in the initial sentence proceedings had already varied downward from the
pre-sentence guidelines ranges to the mandatory minimum sentences, neither
would receive any relief under § 3582(c)(2).
The court saw a way around the problem. Section 3553(e) authorizes a court
to sentence a defendant below the statutory mandatory minimum if the government
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files a motion requesting that be done based on the defendant’s substantial
assistance. 18 U.S.C. § 3553(e). The obstacle to that work around in these two
cases was that the government would not cooperate and took the position that it
could not file such a motion in a § 3582(c)(2) proceeding even if it were inclined to
do so. The court worked around that obstacle as well, ruling that the nearly
decade-old plea agreements, though they did not say it, required the government to
file § 3553(e) motions at the resentence proceedings. And the court rejected the
government’s argument that § 3553(e) categorically did not apply in § 3582(c)(2)
proceedings.
The district court ordered the government to file a § 3553(e) motion in each
case, and the government did so under protest. To no one’s surprise, the court
granted the defendant’s motions to reduce their sentences and took advantage of
the § 3553(e) motions it had ordered the government to file to reduce Melton’s
sentence on the conspiracy count to 86 months imprisonment, and reduce Flores’
sentence to 101 months imprisonment. Both of those sentences were within the
post-Amendment 782 revised guidelines ranges but below the 120-month
mandatory minimum sentence required by 21 U.S.C. § 841(b)(1)(A): in Melton’s
case 34 months below, and in Flores’ case 19 months below.
The government appeals the orders granting the defendants’ motions for
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reduced sentences in both cases.2
II. ANALYSIS
“A district court may not modify a term of imprisonment once it has been
imposed, except in some cases where modification is expressly permitted by
statute or [Rule 35 of the Federal Rules of Criminal Procedure].” United States v.
Jackson, 613 F.3d 1305, 1308 (11th Cir. 2010). One statute authorizing district
courts to modify previously imposed sentences is 18 U.S.C. § 3582(c), which is at
the heart of this case.
Generally speaking, a defendant who was sentenced to the mandatory
minimum penalty established by statute is not entitled to any relief under
§ 3582(c)(2), even if a retroactive amendment to the guidelines would otherwise
reduce his sentencing range below what it was before the amendment. Section
3582(c)(2) allows a district court to reduce a defendant’s sentence based on an
2
Because the government did not move to stay the district court’s order, Flores has been
released from custody and removed from the country. She contends that her removal moots the
government’s appeal, but that argument is foreclosed by binding circuit precedent. See United
States v. Orrega, 363 F.3d 1093, 1095–96 (11th Cir. 2004) (holding in analogous factual
circumstances that deportation did not moot the government’s appeal from a district court’s
sentencing decision because the defendant might re-enter the United States).
Flores also contends that the government’s failure to seek a stay and its failure to pursue
an interlocutory appeal from the district court’s order directing it to file an 18 U.S.C. § 3553(e)
motion amount to a waiver of its appellate rights. She is mistaken. A failure to seek a stay or
pursue an interlocutory appeal generally does not waive or otherwise prevent a party from
appealing an adverse judgment. See, e.g., In re Seidler, 44 F.3d 945, 948 (11th Cir. 1995); Am.
Grain Ass’n. v. Lee-Vac, Ltd.,
630 F.2d 245, 247 (5th Cir. Unit A 1980); Chi. Bd. of Educ. v.
Substance, Inc.,
354 F.3d 624, 626 (7th Cir. 2003); Chambers v. Ohio Dep’t of Human Servs.,
145 F.3d 793, 796 (6th Cir. 1998).
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amendment to the sentencing guidelines only “if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.”
The Commission’s policy statement concerning the retroactive application
of guidelines amendments is U.S.S.G. § 1B1.10. It provides that:
In determining whether, and to what extent, a reduction in the
defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and
this policy statement is warranted, the court shall determine the
amended guideline range that would have been applicable to the
defendant if the amendment(s) to the guidelines listed in subsection
(d) had been in effect at the time the defendant was sentenced. In
making such determination, the court shall substitute only the
amendments listed in subsection (d) for the corresponding guideline
provisions that were applied when the defendant was sentenced and
shall leave all other guideline application decisions unaffected.
U.S.S.G. § 1B1.10(b)(1) (2014). That means the determination of whether a
defendant is eligible for a § 3582(c)(2) reduction is to be made using the guidelines
manual that was used to sentence the defendant originally, substituting only those
amendments listed in § 1B1.10(d). A court should then adjust the guidelines range
using the same enhancements and reductions that were applied at the original
sentencing. Id. § 1B1.10(b)(1) (instructing the court to “leave all other guideline
application decisions unaffected” in determining a defendant’s eligibility for a
sentence reduction).
Following those instructions, Melton and Flores were not entitled to receive
new sentences below 120 months. As we explained above, Melton’s base offense
level for the conspiracy count, if Amendment 782 had been effective at the time of
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his sentencing, would have been 32. Once reductions for his acceptance of
responsibility and substantial assistance were applied, the district court would have
calculated an offense level of 24. Combining that offense level with a criminal
history category of IV results in a guidelines range of 77 to 96 months, which is
lower than the guidelines range that applied to his conduct at his original
sentencing.
Because a statutory mandatory minimum sentence of 120 months applied to
the conspiracy count, however, the district court (but for the § 3553(e) motion it
forced the government to file) could not have stopped there. The court, instead,
would have had to follow U.S.S.G. § 5G1.1(b) (2005), which provides that, if the
calculated guidelines range is below the statutory mandatory minimum, the
statutory minimum “shall be the guideline sentence.” Because the 120 month
mandatory minimum Melton faced is greater than the 96-month upper end of his
guidelines range, his guidelines sentence under Amendment 782 would have been
120 months — the sentence he received initially. He therefore was not eligible for
a sentencing reduction based on Amendment 782. Cf. United States v. Peters, 524
F.3d 905, 906–07 (8th Cir. 2008).
So too for Flores. Had her guidelines range been calculated after
Amendment 782 became effective, she would have had a base offense level of 32,
a criminal history category of II, and an initial guidelines range of 135 to 168
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months. After the § 5K1.1 departure was applied, her guidelines range would have
been 101 to 168 months. The district court would then have had to comply with
U.S.S.G. § 5G1.1(c)(2) (2006), which prohibits a sentence below a mandatory
minimum. That means that Flores’ post-Amendment 782 guidelines range would
have been 120 to 168 months. See U.S.S.G. § 5G1.1 cmt. (2006). Because her
original sentence was 120 months imprisonment, Flores would not be entitled to
any reduction based on Amendment 782. Peters, 542 F.3d at 906–07.
Given the general rule we have just described, the only way the new
sentences the district court imposed in these cases were permissible is if its orders
requiring the government to file the § 3553(e) motions were. We turn to that
question now. The district court’s reasoning rests on two premises. One is that the
government violated the promises it made in the initial plea bargain agreements by
refusing years later to file § 3553(e) motions permitting the district court to depart
downward below the statutory mandatory minimum sentence in each of these two
cases. The second premise that underlies the district court’s reasoning is that a
§ 3553(e) motion can be filed and granted in a § 3582(c)(2) post-amendment
resentencing proceeding, at least when it is necessary to give the defendant the
benefit of his bargain with the government. We have no need to address the
second premise but instead start and end with the first one.
The district court, in effect, grafted the government’s earlier § 5K1.1
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motions onto Melton’s and Flores’ plea agreements and transformed those motions
into promises. It viewed those motions as clarifying the meaning of the original
plea agreements by adding an ongoing promise to do whatever became necessary
to ensure that, if the guidelines changed in the future, the defendants would receive
just as much benefit from their substantial assistance as they did before the
amendments. And whatever was necessary included, the district court thought,
filing a § 3553(e) motion authorizing the court to sentence the defendant below the
mandatory minimum sentence prescribed by statute.
That is not what the plea agreements say. The relevant promise that the
government made to Melton and Flores in the plea agreements was simply to
“move for a downward departure in accordance with Section 5K1.1 of the United
States Sentencing Guidelines or Rule 35 of the Federal Rules of Criminal
Procedure” if the government determined that they had provided substantial
assistance to the government. That is all the agreements say about a substantial
assistance motion. They say nothing about the government filing a motion under §
3553(e) to allow the district court to depart below the statutory mandatory
minimum that applied to the convictions. Nothing at all. Silence is not ambiguity.
The plea agreement unambiguously shows that no promise was made about filing a
§ 3553(e) motion either in the initial sentence proceeding or in some future
proceeding under § 3582(c)(2) based on a post-amendment change in the
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guidelines.
The Supreme Court has expressly held that a motion under § 5K1.1 is not
the same as a motion under § 3553(e). Melendez v. United States, 518 U.S. 120,
124–30,
116 S. Ct. 2057, 2060–63 (1996). It follows that a promise to file a
motion under § 5K1.1 is not a promise to file a motion under § 3553(e). A promise
to do one thing is not a promise to do that thing and something else. And a party
who fulfills a promise to do one thing does not thereby obligate itself to do
something else.3
We have said in the past that we will not adopt “hyper-technical” readings of
the text of plea agreements, will view them against the background of the plea
negotiations, and will not adopt an interpretation of them that “directly
contradict[s] an oral understanding” between the government and the defendant.
United States v. Harris, 376 F.3d 1282, 1287 (11th Cir. 2004). But these rules
have no application here. Despite Melton’s assertion to the contrary, we are not
adopting a rigidly literal interpretation of Melton’s and Flores’ plea agreements.
We are simply refusing to read into them promises that were not made. And
3
Melton protests that his was a standard plea agreement in the Southern District of
Alabama and that standard agreements in that district never discuss § 3553(e) motions, even
when they are intended. There is no evidence in the record to that effect and, in any event, it
would not mean that such a motion was intended in these cases. Nor does the fact, if it be a fact,
that Melton and Flores were presented with standard plea agreements mean they could not have
negotiated with the government for more or better terms. The government might have agreed to
any requested changes, or it might not have. But a defendant who did not even request such a
provision cannot be heard to insist that one should be added a decade later.
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Melton and Flores have neither presented nor proffered any evidence that during
plea negotiations the government agreed to file a § 3353(e) motion.
The parties did agree to recognize the defendants’ right to file a § 3582(c)(2)
motion if there was a retroactive amendment to the guidelines that might be
applicable, and the plea agreement recognizes that. But the parties did not agree
that the government wouldn’t oppose a future § 3582(c)(2) motion, nor did they
agree that if one was filed the government would also file a § 3553(e) motion
asking the court to depart below the mandatory minimum sentence.
As the government concedes, it “may invoke § 3553(e) in a motion under
§ 5K1.1 . . . .” But the fact that the government may sometimes combine with its §
5K1.1 motion an additional § 3553(e) motion does not transform every § 5K1.1
motion into a joint § 5K1.1 and § 3553(e) motion. See Melendez, 518 U.S. at 124–
30, 116 S. Ct. at 2060–63. It also doesn’t make every promise to file a § 5K1.1
motion a promise to also file a § 3553(e) motion.
Nor are we persuaded that the references in the plea agreements to the
possibility that the government might file motions under Rule 35 of the Federal
Rules of Criminal Procedure — which does allow the court to depart below a
mandatory minimum sentence — suggest that when the agreements say § 5K1.1
they mean “§ 5K1.1 and § 3553(e).” Rule 35(b) is a vehicle by which the
government can ask a district court to reward with sentence reductions defendants
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who provide post-sentencing substantial assistance. And a Rule 35(b) motion
always allows the district court to depart below the mandatory minimum. Fed. R.
Crim. P. 35(b)(4). So if the government wants to reward post-sentencing
assistance by way of a Rule 35(b) motion, it has no choice but to authorize the
district court to depart below the mandatory minimum. But as the Supreme Court
made clear in Melendez, that is simply not true of a § 5K1.1 motion. Melendez,
518 U.S. at 124–
30, 116 S. Ct. at 2060–63. The government can ask the court to
reward pre-sentencing substantial assistance without authorizing a sentence below
the statutory minimum by filing a § 5K1.1 motion and declining to file a § 3553(e)
motion. See
id. Which is exactly what the government did in this case.
To the extent that the plea agreements’ references to Rule 35 could be
considered to include a promise that the government would allow the district court
to depart below applicable mandatory minimums, it was a promise to do so based
on post-sentencing substantial assistance. It could not have been more because
Rule 35(b) applies only to substantial assistance rendered after sentencing. Fed. R.
Crim. P. 35(b)(1). Both Melton and Flores provided all of their assistance to the
government before sentencing, not afterwards.
We recognize that, in hindsight, what Melton and Flores received in return
for their guilty pleas is less valuable in the post-Amendment 782 world than it was
when those agreements were signed and accepted a decade ago in the pre-
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Amendment 782 world. But plea agreements are interpreted by what they say, not
what they might have said if the defendants or the government could have foreseen
the future. Courts are not authorized to ink in revisions to ensure that the
defendants continue to receive the same value regardless of future changes in the
law. Cf. United States v. Howle, 166 F.3d 1166, 1168–69 (11th Cir. 1999)
(“Modification of the terms of a plea agreement is, however, beyond the power of
the district court. Such a modification would impermissibly alter the bargain at the
heart of the agreement — without the defendant’s waiver of his right to appeal, the
Government might not have been willing to dismiss four of the five counts
contained in the indictment.”) (footnote and citations omitted). As one of our sister
circuits aptly explained:
In a contract (and equally in a plea agreement) one binds oneself to do
something that someone else wants, in exchange for some benefit to
oneself. By binding oneself one assumes the risk of future changes in
circumstances in light of which one’s bargain may prove to have been
a bad one. That is the risk inherent in all contracts; they limit the
parties’ ability to take advantage of what may happen over the period
in which the contract is in effect.
United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). Buyer’s remorse on
the part of a defendant does not justify rewriting a plea agreement. We would no
more hold the government to a promise that it never made than we would hold the
defendants to one they never made.
If Melton and Flores wanted to insure the value of their substantial
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assistance against the chance that a future guidelines amendment would bring them
a new guidelines range low enough that a § 3553(e) motion would make a
difference, they should have bargained for a provision providing that protection.
But they did not or, if they did, couldn’t get the government to agree to it. Either
way, it is too late now to add that provision to their plea agreements. The district
court erred by rewriting the plea agreement.
III. CONCLUSION
Both Melton and Flores were sentenced to the statutory mandatory minimum
applicable to their offenses at their original sentencing. Because the district court
had no authority to compel the government to file § 3553(e) motions in this case, it
had no authority to sentence the defendants below that mandatory minimum. As a
result, the defendants were not eligible for relief under § 3582(c)(2).
We therefore REVERSE the decisions of the district court and VACATE
its orders granting Melton’s and Flores’ motions for relief under § 3582(c)(2) and
imposing lower sentences. Both cases are REMANDED to the district court with
instructions to deny the defendants’ motions and re-impose their original
sentences.
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