                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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