[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 21, 2007
No. 06-13037 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00006-CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY WIMS,
a.k.a. Timothy Derrinado Davis,
a.k.a. John Darren Delgado,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 21, 2007)
Before BIRCH, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Timothy Wims appeals his 360-month sentence for conspiracy to
manufacture, distribute, and possess with the intent to manufacture and distribute
more than 5 kilograms of cocaine and more than 50 kilograms of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii), and 846.1 On
appeal, Wims argues that his sentence was unreasonable because he had renounced
criminal activity, was not the leader of the conspiracy, and had cooperated with the
government. For the reasons set forth more fully below, we affirm Wims’s
sentence.
I. Background
The instant case arose out of an investigation of Cleveland Ferguson, Jr., a
drug dealer in Gainesville, Florida. Wims and Ferguson previously had been
involved in the sale of cocaine in the Gainesville area. In 1991, Wims was
convicted of cocaine distribution and sentenced to 120 months’ imprisonment.
Wims was released from custody in 1995, but his supervised release was revoked
in 1996 because he committed a home invasion. Wims was subsequently released
from custody in 2002. Following that release from prison, Wims contacted
1
Wims was also charged with (1) attempting to use physical force against another person
with the intent to influence, delay, and prevent the person from testifying in an official
proceeding before a court of the United States, in violation of 18 U.S.C. § 1512(a)(2)(A),
(a)(3)(B)(ii); and (2) threatening and attempting to cause bodily injury to another person with the
intent of retaliating against that person for giving information to a police officer relating to the
commission of a federal offense, in violation of 18 U.S.C. § 1513(b)(2). However, those charges
were later dismissed upon the government’s motion.
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Ferguson regarding his desire to sell drugs again. Ferguson provided money to
Wims, with which Wims bought cocaine in Miami and transport it back to
Ferguson in Gainesville. Wims also purchased cocaine for himself during these
transactions and converted it into cocaine base for further distribution.
In September 2003, Wims was involved in a drug transaction with his half-
brother. During that transaction, Wims’s half-brother shot Wims twice in the back
of the head and left him to die. Wims survived and, according to his girlfriend,
Wims thereafter attempted to reestablish himself as a drug dealer in Virginia.
Wims made approximately four trips from Miami to Virginia to buy and sell
cocaine. Wims was later arrested in Virginia. During the time between Wims’s
arrest and sentencing, Wims made several threats to cooperating defendants and
witnesses against him. Wims also ran after and threatened a witness against him
while they were both imprisoned in Tallahassee, Florida.
At sentencing, Wims’s counsel requested that, if the court was going to stay
within the guideline range, the court sentence Wims to 360 months’ imprisonment
because Wims was not the leader of the conspiracy. Wims’s counsel further stated
that Wims had stopped engaging in criminal activity the day that he was shot by
his half-brother. The government responded that Wims continued to sell drugs
after he had been shot. Wims then stated on his own behalf that he “didn’t
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immediately involve [himself] back in a drug gang after [he] got shot on
September 13, 2003, but eventually [he] couldn’t get no assistance.”
After hearing the arguments from the parties, the court stated that Wims had
engaged in a life of crime and every time he was released from custody he returned
to crime and drugs. The court also found that Wims had “a very long, long, long
criminal record.” The court then determined that Wims’s guideline range was 360
months’ to life imprisonment, and sentenced Wims to 360 months’ imprisonment.2
The court noted that it was the low-end of the guideline range and that, even
though the court was not bound by the guidelines, the range was appropriate in
Wims’s case.
II. Discussion
On appeal, Wims argues that his 360-month sentence was unreasonable in
light of the facts and circumstances of his case, and that the court should have
sentenced him below the advisory guideline range. Wims maintains that his
sentence should have been below the guideline range because he: (1) renounced
criminal activity after he was shot and long before he was arrested for the instant
offense; (2) was not the leader of the conspiracy; and (3) cooperated with law
2
The district court calculated Wims’s guideline range based upon his adjusted offense
level of 38 and his criminal history category of VI. Wims does not challenge the court’s
guideline calculation on appeal.
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enforcement even though he did not qualify for a U.S.S.G. § 5K1.1 reduction.
Ordinarily, we review final sentences for reasonableness. United States v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005). We do not reach the merits of Wims’s
arguments, however, because we conclude that Wims induced or invited the ruling
he now claims was error. We have held that “a party may not challenge as error a
ruling or other trial proceeding invited by that party.” United States v. Love, 449
F.3d 1154, 1157 (11th Cir. 2006) (quotation omitted). “Where invited error exists,
it precludes a court from invoking the plain error rule and reversing.” Id.
(quotation omitted).
At sentencing, Wims’s counsel explicitly requested that, if the court
intended to sentence Wims within the guideline range, the court should sentence
him to 360 months’ imprisonment. Even though Wims’s counsel prefaced his
request by stating “if the court is inclined to follow” the guideline range, Wims’s
counsel never explicitly requested that the court impose a below-guideline
sentence, nor did counsel direct the court to another term of imprisonment that
would be appropriate in Wims’s case. As such, Wims’s counsel invited the court
to sentence Wims to 360 months’ imprisonment, which sentence the court
imposed. Thus, Wims is precluded from claiming that his sentence was
unreasonable. See Love, 449 F.3d at 1157. Accordingly, Wims’s 360-month
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sentence is
AFFIRMED.3
3
Were we to review this sentence for reasonableness we would have no difficulty in
affirming based upon the instant criminal activity, the extensive criminal record of Wims, the
thorough review made by the sentencing judge and his consideration of the legal precedents
controlling sentencing.
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