United States v. Timothy Simmons

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5225

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TIMOTHY LAMONT SIMMONS,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:09-cr-01034-TLW-11)

Submitted: October 20, 2011 Decided: November 4, 2011

Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. William Norman Nettles, United States
Attorney, Columbia, South Carolina; Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Timothy Lamont Simmons pled guilty, pursuant to a

written plea agreement, to one count of conspiracy to possess

with intent to distribute 500 grams or more of cocaine and 50

grams or more of crack cocaine, 21 U.S.C. § 846 (2006), and was

sentenced to 144 months imprisonment. Simmons noted a timely

appeal. Counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting that there are no

meritorious grounds for appeal but questioning whether the

district court complied with Fed. R. Crim. P. 11 in accepting

Simmons’ guilty plea and whether the district court erred in

failing to apply provisions of the Fair Sentencing Act, Pub. L.

No. 111–220, 124 Stat. 2372 (the “FSA”), in determining Simmons’

sentence. Although advised of his right to file a pro se

supplemental brief, Simmons has not done so.

We have reviewed the transcript of Simmons’ guilty

plea hearing and find that the district court fully complied

with the mandates of Rule 11. The court ensured that Simmons

understood the charge against him and the potential sentence he

faced, the rights he was giving up by pleading guilty, that he

entered his plea knowingly and voluntarily, and that the plea

was supported by a sufficient factual basis. See United States

v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). We

therefore affirm Simmons’ conviction.

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 Appellant has filed an unopposed motion to vacate

Simmons’ sentence and remand for resentencing in accordance with

the FSA. In light of the Attorney General’s revised view on the

retroactivity of the FSA, as well as the development of case law

on this point in other jurisdictions, we think it appropriate,

without indicating any view as to the outcome, to accord the

district court an opportunity to consider the matter in the

first instance.

We therefore affirm in part as to Simmons’ conviction,

vacate in part, and remand to the district court for

resentencing. This court requires that counsel inform Simmons,

in writing, of the right to petition the Supreme Court of the

United States for further review. If Simmons requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Simmons. 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 IN PART,
VACATED IN PART,
AND REMANDED

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