UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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. We review the district court’s ruling for abuse
of discretion. 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” the agreement between the parties, the defendant is not
eligible for a § 3582(c)(2) reduction. Id. at 533.
Justice Sotomayor concurred in the judgment. Her opinion,
narrower than that of the plurality, controls. See United
States v. Brown, 653 F.3d 337, 340 (4th Cir. 2011). She concluded
that a defendant who pleads guilty in 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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