IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA, )

)

)

vs. ) Criminal Action No. 2:06-00022-KD

)

KENDRICK MELTON, )

)

Defendant. )

ORDER

This matter is before the Court on Defendant’s motion to reduce sentence pursuant to 18

U.S.C. § 3582(c)(2) based on a retroactive amendment to the United States Sentencing 

Guidelines. (Doc. 40). 

I. Background

In 2006, Melton pled guilty to conspiracy to possess with intent to distribute cocaine base 

(Count 1), and possession of a firearm during a drug trafficking offense (Count 3). At sentencing,

Melton was held accountable for 1.5 kilograms of crack cocaine and his base offense level was

38. He received a 3 level reduction for acceptance of responsibility. His total offense level was

35. With a criminal history category of IV, Melton’s guideline range was 235 to 293 months as

to Count 1 and 60 months, mandatory consecutive, as to Count 3.

As to Count 1, the government moved pursuant to U.S.S.G. § 5K1.1 for a downward

departure of 5 levels to an adjusted offense level of 30 with a sentencing guideline range of 135 

to 168 months. The government made a specific recommendation that Melton receive a

sentence in the mid-range of the advisory guidelines. The government did not move pursuant

to 18 U.S.C. § 3553(e) for a departure below the statutory mandatory minimum of 120 months.

The Court granted the § 5K1.1 motion and sentenced Melton to 120 months as to Count 1 and 60

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months, consecutive, as to Count 3. Both the 120 month and 60 month terms were imposed 

pursuant to statutory mandatory minimums. 

In 2008, Melton moved for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2)

and Amendment 706 to the Sentencing Guidelines. Amendment 706 had the effect of reducing

Melton’s base offense level to 36 and his total offense level to 33 and his recalculated guideline

range was 188 to 235 months. In response, the government reiterated that it had not moved for a 

departure below the statutory mandatory minimum. (Doc. 38). Melton’s motion was denied, 

noting that where the applicable guideline range is below the statutory mandatory minimum, the 

mandatory minimum becomes the guideline sentence. (Doc. 39). 

Now, application of Amendment 782 would result in a new base offense level of 32 for 

1.5 kilograms of crack cocaine. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(4) (Nov. 1,

2008) (Drug Quantity Table) (applying level 32 where defendant is held accountable for “At

least 840 G but less that 2.8KG of Cocaine Base”). Applying a 3 level reduction for acceptance

of responsibility, his total offense level would be 29. With a criminal history category of IV,

Melton’s recalculated guideline range would be 121 months to 151 months. U.S.S.G. Ch. 5,

Sentencing Table (Nov. 1, 2014). Applying a comparable 5 level reduction based upon the

government’s motion, would yield an offense level of 24. With a criminal history of IV,

Melton’s recalculated guideline range would be 77 to 96 months, and a mid-level sentence, as 

originally recommended by the government, would yield a sentence of approximately 86 months. 

However, because the government declined to file a substantial assistance motion under 

18 U.S.C. § 3553(e), Melton is receiving only 1 month’s benefit – the difference between 121 

months and 120 months - for his substantial assistance. Accordingly, because Melton is no 

longer receiving a 5 level reduction, Melton alleges that the government’s failure to file a 

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§3553(e) motion at this juncture (which would permit the Court to sentence Melton below the 

mandatory minimum) amounts to a breach of the plea agreement. 

II. Analysis 

Generally, the Court is without authority to reduce Melton’s sentence below the statutory

mandatory minimum because the government did not move for a downward departure

pursuant to 18 U.S.C. § 3553(e). U.S.S.G. § 1B1.10, cmt. (n.3); U.S.S.G. § 1B1.10(b)(2)(B);

See United States v. Camille, 579 Fed. Appx. 814, 818 (11th Cir. 2014) (“A district judge is not

authorized to sentence a defendant below the statutory mandatory minimum, unless the

Government filed a substantial-assistance motion under 18 U.S.C. § 3553(e) and U.S.S.G. §

5K1.1 ...”). Further, the Eleventh Circuit recently held:

A district court may modify a sentence if the defendant “has been sentenced to a 

term of imprisonment based on a sentencing range that has subsequently been 

lowered by the Sentencing Commission.”§ 3582(c)(2). A modification under § 

3582(c)(2), however, “does not constitute a de novo resentencing.” United States 

v. Bravo, 203 F.3d 778, 781 (11th Cir.2000). Rather, in addressing whether a 

defendant is eligible for a reduced sentence under § 3582(c)(2), a district court 

considers only the effect of the applicable guideline amendment, leaving “all

original sentencing determinations ... unchanged.” Id. (emphasis in original). As a 

result, even if a retroactive amendment alters a defendant’s offense level, he is 

ineligible for § 3582(c)(2) relief if the amendment would “not have the effect of 

lowering [his] applicable guideline range because of the operation of another 

guideline or statutory provision (e.g., a statutory mandatory minimum term of 

imprisonment).” U.S.S.G. § 1B1.10, comment. n. 1(A). See also United States v. 

Glover, 686 F.3d 1203, 1207–08 (11th Cir.2012) (concluding that the district 

court did not have the authority to reduce the defendant's sentence under 

Amendment 750 because the sentence was based on a mandatory minimum 

sentence of life imprisonment); United States v. Mills, 613 F.3d 1070, 1078 (11th 

Cir.2010) (“The law is clear that a sentencing court lacks jurisdiction to consider a 

§ 3582(c)(2) motion, even when an amendment would lower the defendant's 

otherwise-applicable Guidelines sentencing range, when the defendant was 

sentenced on the basis of a mandatory minimum .”).

United States v. Burgess, No. 14-15805, 2015 WL 5729545, at *1 (11th Cir. Oct. 1, 2015). 

Therefore, despite the government’s motion for a 5 level reduction via § 5K1.1, the Court 

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is without authority to apply a comparable reduction, because to do so would reduce Melton’s 

sentence below the statutory mandatory minimum and the government has not filed a motion 

pursuant to § 3533 (e), which would permit the Court to do so.

The issue is whether the government’s failure to file a motion pursuant to §3533(e) 

results in a breach of its plea agreement with the Defendant. If a breach has occurred, the Court 

may order specific performance or permit the Defendant to withdraw his guilty plea. United 

States v. Johnson, 132 F.3d 628, 631 (11th Cir. 1998) (citing Santobello v. New York, 404 U.S. 

257, 262 (1971). The Eleventh Circuit has given the following guidance when determining

whether the government has breached an agreement.

“[W]hen a plea rests in any significant degree on a promise or agreement of the 

prosecutor, so that it can be said to be part of the inducement or consideration, 

such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 

S.Ct. 495, 30 L.Ed.2d 427 (1971). “Whether the government violated the 

agreement is judged according to the defendant’s reasonable understanding at the 

time he entered his plea.” United States v. Boatner, 966 F.2d 1575, 1578 (11th 

Cir.1992). Accordingly, we “must decide whether the government's actions are 

inconsistent with what the defendant reasonably understood when he entered his 

guilty plea.” United States v. Al–Arian, 514 F.3d 1184, 1191 (11th Cir. 2008) 

(quotation omitted). Moreover, because the sentencing court is not bound by the 

parties’ agreements or recommendations, whether the government breached a plea 

agreement depends upon the government’s conduct, not the conduct of the district 

court. United States v. Johnson, 132 F.3d 628, 630 (11th Cir.1998).

We “must use objective standards to determine the disputed terms of a plea 

agreement.” In re Arnett, 804 F.2d 1200, 1202 (11th Cir.1986). In interpreting a 

plea agreement, “a hyper-technical reading of the written agreement and a rigidly 

literal approach in the construction of the language, should not be accepted.” 

United States v. Rewis, 969 F.2d 985, 988 (11th Cir.1992) (quotation omitted). In 

addition, “the written agreement should be viewed ‘against the background of 

negotiations' and should not be read to ‘directly contradic[t][an] oral 

understanding.’ ” Id. (alterations in original) (quotation omitted). “[A] plea 

agreement that is ambiguous must be read against the government.” Id. (quotation 

omitted). However, when a plea agreement is unambiguous, we will not read into 

the agreement terms that were not agreed upon with specificity, even when the 

defendant misunderstood the agreement. Al–Arian, 514 F.3d at 1191–93; In re 

Grand Jury Proceedings (Perdue), 819 F.2d 984, 986–87 (11th Cir.1987). “Only 

where the language of the agreement is ambiguous, or where government 

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overreaching is alleged does the court consider parole evidence,” such as a plea 

hearing transcript. Raulerson v. United States, 901 F.2d 1009, 1012 (11th 

Cir.1990) (involving a habeas corpus petition).

United States v. Lovett, 601 F. App'x 787, 787-88 (11th Cir. 2015).

The Court finds that the plea agreement in this case is unambiguous. When Melton 

signed the plea agreement, he was aware that he was facing a total mandatory minimum sentence 

of 180 months. His expectation was that he would, at a minimum, be sentenced to 120 months as 

to Count 1, with a consecutive term of 60 months as to Count 3. However, he also expected that 

if the government determined he had provided substantial assistance, he would be rewarded.

The plea agreement states:

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 5Kl.l 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. 

(Doc. 15 at 7-8).

At the time the parties entered into the plea agreement, there was no definitive 

expectation of either a departure, or the amount to be assigned in the event the government 

determined that Melton had provided substantial assistance. However, thereafter the government 

determined that Melton had provided substantial assistance and ascribed a value to that 

assistance of a 5 level departure. The Court finds that this determination of substantial assistance 

and the ascribed value of such became part of the agreement with Melton. Unfortunately, now 

that the guidelines have been lowered, the government declines to honor their determination that 

Melton’s assistance was worth a 5 level reduction to the calculated guidelines. In its defense, the 

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government argues that it does not have jurisdiction to file a § 3553(e) motion at this stage of the 

proceedings. (Doc. 47 at 7, n.1). 

The Court first notes that the lack of jurisdiction was not the position taken by the

Department of Justice in United States v. Williams, 103 F.3d 57 (8th Cir. 1996). In that case, the

Department of Justice moved for a reduction under § 3553(e) in a § 3582(c)(2) proceeding so

that the defendant could receive the benefit of his previous bargain regarding cooperation. Thus,

in the past the Department of Justice has determined that it does have jurisdiction to file a §

3553(e) motion in the context of a § 3582(c)(2) proceeding. Specifically, in Williams, the Eighth

Circuit explained:

The government urged the district court to reduce Williams's sentence to 106 

months to reflect the assistance he had provided pre- and post-sentencing. The 

government explained that Williams's 131-month sentence represented a 55% 

reduction from the bottom of the original Guidelines range, that applying 

Amendment 505 would produce a range of 235 to 293 months, and that a 55% 

reduction from the bottom of that range would yield a 106-month sentence. As 

such a sentence was below the 120-month statutory minimum, the government 

further explained that it had not moved for a reduction below the statutory 

minimum either at sentencing under 18 U.S.C. § 3553(e) or in conjunction with 

its Rule 35(b) motion, because it had believed Williams would still be subject to 

the statutory minimum sentence “even after the requested reductions.” Therefore, 

in light of Amendment 505, the government moved under section 3553(e) to 

permit the court to reduce Williams's sentence below the statutory minimum.

Id. at 58.

Next, this Court agrees with the Eighth Circuit that 

In order that a defendant may receive the full benefit of both a change in

sentencing range and the assistance the defendant has previously rendered, we

conclude that the government may seek a section 3553(e) reduction below the

statutory minimum in conjunction with a section 3582(c)(2) reduction. Section

3553(e) contains no time limitation foreclosing such a conclusion.

Williams at 58-59 (emphasis in original). In fact, the need for recognizing substantial assistance

when re-sentencing under § 3582(c)(2) is specifically recognized in United States Sentencing

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Guideline § 1B1.10(b)(2)(B)(Nov. 2014). This section provides:

(B) Exception for Substantial Assistance.—If the term of imprisonment imposed 

was less than the term of imprisonment provided by the guideline range 

applicable to the defendant at the time of sentencing pursuant to a government 

motion to reflect the defendant's substantial assistance to authorities, a reduction 

comparably less than the amended guideline range determined under subdivision 

(1) of this subsection may be appropriate.

Thus, the Court concludes that the government has no jurisdictional bar to honoring its

commitment. At this point, the government can either accept this ruling and file a motion

pursuant to § 3553(e) or notify the Court within seven (7) days that it takes exception to the

Court’s determination. In the event of the latter, the Court will issue an Order requiring specific

performance from which the government may take an interlocutory appeal if it chooses.

DONE and ORDERED this 6th day of November 2015.

s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

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