US v. Gerald Timmon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:08-cr-00373-RBH-1 Copies to all parties and the district court/agency. [999828581]. Mailed to: G Timmons. [16-6397]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6397

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERALD ANDY TIMMONS,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00373-RBH-1)

Submitted:

May 11, 2016

Decided:

May 20, 2016

Before WILKINSON, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gerald Andy Timmons, Appellant Pro Se. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gerald Andy Timmons pled guilty in accordance with a written
plea agreement to conspiracy to distribute and to possess with
intent to distribute 50 grams or more of cocaine and base and five
kilograms or more of cocaine.

Pursuant to Fed. R. Crim. P.

11(c)(1)(C), the parties stipulated in the agreement that the
appropriate disposition was 87 months in prison. The court imposed
the agreed-upon sentence of 87 months.

Timmons did not appeal.

Timmons filed an 18 U.S.C. § 3582(c)(2) (2012) motion for
reduction of sentence, seeking to benefit from Amendment 782 of
the Sentencing Guideline, which reduced the base offense levels
for most offenses involving cocaine base.

The district court

denied relief because the sentence was the result of the Rule
11(c)(1)(C) agreement — not application of the Guidelines. Timmons
timely appeals.
of discretion.

We review the district court’s ruling for abuse
See United States v. Mann, 709 F.3d 301, 304 (4th

Cir. 2013).
In Freeman v. United States, 564 U.S. 522 (2011), the Supreme
Court divided 4-1-4, with a plurality concluding that defendants
who enter Rule 11(c)(1)(C) pleas are not categorically barred from
receiving reductions under § 3582(c)(2).

Id. at 526.

The Court

found that a defendant is eligible for a sentence reduction under
§ 3582(c)(2) if his sentence was “based on” a Guidelines range
that had been lowered.

If, in contrast, the sentence was “based
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on”

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the

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agreement

between

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the

parties,

eligible for a § 3582(c)(2) reduction.

the

defendant

than

that

of

the

plurality,

a

defendant

who

pleads

guilty

Her opinion,

controls.

States v. Brown, 653 F.3d 337, 340 (4th Cir. 2011).
that

not

Id. at 533.

Justice Sotomayor concurred in the judgment.
narrower

is

in

See

United

She concluded

accordance

with

Rule

11(c)(1)(C) can demonstrate that his sentence was “based on” a
Guidelines range if: the plea agreement “call[s] for the defendant
to be sentenced within a particular Guidelines range;” or the plea
agreement (1) “provide[s] for a specific term of imprisonment” and
(2) “make[s] clear that the basis for the specified term is a
Guidelines range applicable to the offense” of conviction provided
that “the sentencing range is evident from the agreement itself.”
Freeman

v.

United

States,

564

U.S.

at

539

(Sotomayor,

J.,

concurring).
With these principles in mind, we affirm the district court’s
denial of Timmons’ motion.

Timmons’ plea agreement stated: “If

the Defendant complies with all terms of this Agreement, both
parties agree that . . . the appropriate disposition of this case
(irrespective of any fines and forfeitures) is a sentence of 87
months, followed by the appropriate statutory term of supervised
release.”

The agreement neither required sentencing within a

particular Guidelines range nor stated that the basis for the

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specified term was a Guidelines range.

Indeed, no Guidelines

sentencing range is mentioned in the agreement.
We accordingly affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials

before

the

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED

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