         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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