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United States v. Melton

United States Court of Appeals, Eleventh Circuit

July 10, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
KENDRICK MELTON, Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.
GLENDA GUADALUPE FLORES, Defendant-Appellee.

         Appeals from the United States District Court for the Southern District of Alabama D.C. Docket No. 1:07-cr-00066-KD-M-2, 2:06-cr-00022-KD-B-1

          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.

          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 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 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 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. ยง 2D1.1(c) (2014). That guidelines ...


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