                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4680


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

DAVID JAMES WILLIAMS, III, a/k/a Two,

                Defendant – Appellant.



                             No. 14-4689


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

KRISTIN DEANTANETTA WILLIAMS, a/k/a Tina,

                Defendant – Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Florence.     R. Bryan Harwell, District
Judge. (4:13-cr-00843-RBH-10; 4:13-cr-00843-RBH-9)


Argued:   October 29, 2015                Decided:   January 28, 2016


Before WILKINSON, SHEDD, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by published opinion. Judge
Wynn wrote the opinion, in which Judge Wilkinson and Judge Shedd
joined.


ARGUED: Melvin Wayne Cockrell, III, THE COCKRELL LAW FIRM, PC,
Chesterfield, South Carolina; Kathy Price Elmore, ORR, ELMORE &
ERVIN, LLC, Florence, South Carolina, for Appellants.     Robert
Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.     ON BRIEF: William N.
Nettles, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.




                               2
WYNN, Circuit Judge:

      David James Williams, III and Kristin Deantanetta Williams

(“Defendants”)           were        convicted       and        sentenced       pursuant      to

stipulated plea agreements under Rule 11(c)(1)(C) of the Federal

Rules of Criminal Procedure.                   Both Defendants appeal from their

convictions, but only Defendant Kristin Williams challenges her

sentence.         Regarding the convictions, we find no error below,

and therefore affirm.                 But regarding the sentence imposed on

Defendant Kristin Williams, we find that we lack jurisdiction to

review her sentence because a sentence imposed pursuant to the

terms of a Rule 11(c)(1)(C) plea agreement may only be reviewed

if   it    is    unlawful       or    expressly      based       on     the    United    States

Sentencing        Guidelines           (the     “Guidelines”)—circumstances                  not

present here.

                                               I.

      Defendants         separately           pled      guilty        to      one    count     of

conspiracy to possess and distribute cocaine and cocaine base,

in   violation      of    21    U.S.C.     § 846.          In    their      respective       plea

agreements, Defendants stipulated to a sentence of 120 months of

imprisonment        under       Rule     11(c)(1)(C).              The        district     court

sentenced each defendant in accordance with those agreements.

      On    appeal,       Defendants’          appellate          counsel,       pursuant      to

Anders v. California, 386 U.S. 738 (1967), questions whether the

district        court    complied       with     Rule      11    with      respect    to     each

                                               3
defendant.        Additionally,           appellate          counsel          for     Defendant

Kristin Williams questions whether her sentence was reasonable.

                                           II.

     Before      accepting     a    guilty         plea,     a    trial      court,     through

colloquy   with    the    defendant,           must    ensure         that     the    defendant

understands     the   nature       of    the       charges       to    which    the    plea   is

offered,   any    mandatory        minimum         penalty,       the    maximum       possible

penalty, and the various rights the defendant is relinquishing

by pleading guilty.          Fed. R. Crim. P. 11(b).                         The court also

must determine that the plea is voluntary and that there is a

factual basis for the plea.              Id.

     Generally, we review the acceptance of a guilty plea under

the harmless error standard.                   United States v. Martinez, 277

F.3d 517, 524 (4th Cir. 2002).                     But when, as here, a defendant

fails to move in the district court to withdraw his or her

guilty plea, any error in the Rule 11 hearing is reviewed only

for plain error.      Id. at 525.

     Having      reviewed    the        record,       and    especially         the    Rule   11

colloquy   the    court     conducted,         we     conclude         that     the    district

court   fully      complied        with     Rule        11’s          requirements      before

accepting Defendants’ guilty pleas.                    Accordingly, we reject this

challenge.




                                               4
                                        III.

      Counsel    for   Defendant        Kristin        Williams     also    questions

whether her sentence was reasonable.                   However, not all sentences

are subject to appellate review.                  We may review a defendant’s

sentence only if (1) it “was imposed in violation of law,” (2)

it “was imposed as a result of an incorrect application of the

sentencing guidelines,” (3) it “is greater than the sentence

specified in the applicable guideline range,” or (4) it “was

imposed   for    an    offense    for       which      there   is    no    sentencing

guideline and is plainly unreasonable.”                     18 U.S.C. § 3742(a).

However, a defendant who is sentenced pursuant to a stipulated

plea agreement “may not file a notice of appeal under paragraph

(3) or (4) of subsection (a) unless the sentence imposed is

greater than the sentence set forth in such agreement.”                             Id.

§ 3742(c). 1

      In this case, the sentence imposed was not “greater than

the   sentence   set   forth     in    [the      plea]     agreement,”     since    the

sentence—120     months—was      exactly        what     Williams   stipulated      to.

Therefore,     paragraphs   (3)       and   (4)     of    subsection      3742(a)   are

inapplicable here.       Nor can paragraph (1) of subsection 3742(a)

provide the basis for the appeal, since the sentence was not

      1The provision applies to “a plea agreement that includes a
specific sentence under rule 11(e)(1)(C) of the Federal Rules of
Criminal Procedure.” 18 U.S.C. § 3742(c). Rule 11(e)(1)(C) was
renumbered as Rule 11(c)(1)(C) in 1999.     See United States v.
Dews, 551 F.3d 204, 205 n.1 (4th Cir. 2008).
                                            5
“imposed in violation of law:” indeed, the imposed sentence was

the mandatory minimum sentence for the relevant crime.                                 See 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846.                         Consequently, the only

option for reviewing Williams’s sentence is if it “was imposed

as    a    result     of    an    incorrect       application         of     the   sentencing

guidelines.”          18 U.S.C. § 3742(a)(2).

          In numerous unpublished opinions, this Court has suggested

that any sentence imposed pursuant to a Rule 11(c)(1)(C) plea

agreement        is    “not      imposed     as     a        result    of     an    incorrect

application of the Sentencing Guidelines because it [is] based

on     the       parties’        agreement—not          on     the     district        court’s

calculation of the Guidelines.”                    United States v. Boswell, 607

F. App’x 244, 246 (4th Cir. 2015); see also, e.g., United States

v. Hodges, 590 F. App’x 258, 259 (4th Cir. 2015); United States

v. McWhite, 581 F. App’x 190, 192 (4th Cir. 2014); United States

v. Edwards, 578 F. App’x 321, 322 (4th Cir. 2014); United States

v.    Jennings,       540   F.    App’x    155,    156       (4th     Cir.    2013);   United

States v. Rice, 537 F. App’x 270, 271–72 (4th Cir. 2013).

          Some of our sister circuits have similarly indicated that a

Rule 11(c)(1)(C) sentence is based not on the Guidelines but on

the       plea    agreement        itself,        and    therefore           generally    not

reviewable.           See, e.g., United States v. Cieslowski, 410 F.3d

353, 364 (7th Cir. 2005); United States v. Littlefield, 105 F.3d

527, 528 (9th Cir. 1997).              Others, by contrast, have stated that

                                              6
a defendant may still appeal a sentence imposed pursuant to a

stipulated plea when resulting from an incorrect application of

the Guidelines.         See, e.g., United States v. Carrozza, 4 F.3d

70, 86 n.12 (1st Cir. 1993); United States v. Ready, 82 F.3d

551, 555 (2d Cir. 1996); United States v. Smith, 918 F.2d 664,

668–69 (6th Cir. 1990).

       We believe that this issue should be considered in light of

Freeman v. United States, 131 S. Ct. 2685 (2011), in which the

Supreme Court held that in some circumstances a stipulated plea

can    be    “based    on”    the       Guidelines.        Specifically,     Freeman

considered whether a district court had authority to grant a

defendant’s        motion    for    a    reduced    sentence    under   18    U.S.C.

§ 3582(c)(2) where the original sentence was imposed pursuant to

a     Rule   11(c)(1)(C)      plea      agreement.         Subsection   3582(c)(2)

permits a district court to reduce a defendant’s sentence where

that defendant “has been sentenced to a term of imprisonment

based on a sentencing range that has subsequently been lowered

by the Sentencing Commission.”              18 U.S.C. § 3582(c)(2).

       The   issue     in    Freeman      was    whether    a   sentence     imposed

pursuant to a Rule 11(c)(1)(C) plea agreement is “based on” a

Guidelines range, and therefore reviewable.                     The Supreme Court

held that a sentence imposed pursuant to a Rule 11(c)(1)(C) plea

agreement     is    generally       based   on     the   agreement   and     not   the

Guidelines, but that an exception exists where the “agreement

                                            7
expressly uses a Guidelines sentencing range applicable to the

charged       offense    to     establish     the      term     of     imprisonment.”

Freeman, 131 S. Ct. at 2695 (Sotomayor, J., concurring in the

judgment). 2      Because the plea agreement in Freeman explicitly

calculated the applicable Guidelines range and stated that the

defendant “agree[d] to have his sentence determined pursuant to

the Sentencing Guidelines,” the defendant’s sentence was “based

on” the Guidelines and therefore reviewable.                    Id. at 2699–700.

       Applying Freeman’s rule in United States v. Brown, 653 F.3d

337 (4th Cir. 2011), we concluded that the district court lacked

jurisdiction to reduce the sentence at issue there, where the

Rule       11(c)(1)(C)   plea     agreement      did     “not    expressly     use   a

Guidelines       sentencing      range      to   establish           [the]   term    of

imprisonment.”       Id. at 340.      Unlike the plea agreement at issue

in Freeman, the agreement considered in Brown never engaged in a

Guidelines calculation, nor did it state that the stipulated

sentencing range was based on such a calculation.                      Id.

       We see no reason why the rule articulated in Freeman and

applied in Brown is not also applicable to the jurisdiction-

defining provisions of Section 3742.                   That Section specifically

provides that we may review a sentence where it “was imposed as


       2
       We have recognized that Justice Sotomayor’s concurrence
provides the narrowest grounds for the Court’s holding and is
therefore the controlling opinion. United States v. Brown, 653
F.3d 337, 340 & n.1 (4th Cir. 2011).
                                         8
a     result    of        an     incorrect        application           of     the     sentencing

guidelines.”              18     U.S.C.      § 3742(a)(2).                   Surely,    where     a

stipulated plea is “based on” the Guidelines and reviewable in

the    context       of     subsection       3582(c)(2),           it    also        involves     an

“application          of”      the   Guidelines            and     is        reviewable        under

subsection 3742(a)(2).                Therefore, we clarify that a sentence

imposed pursuant to a Rule 11(c)(1)(C) plea agreement may be

reviewed,      but        only    where   that         “agreement        expressly        uses     a

Guidelines sentencing range applicable to the charged offense to

establish the term of imprisonment.”                             Freeman, 131 S. Ct. at

2695.

       A rule allowing for at least the possibility that a Rule

11(c)(1)(C) sentence will be reviewable, even if that sentence

falls within the mandated statutory range, is also in harmony

with Section 3742 overall.                   As noted above, subsection 3742(c)

specifically         prohibits       appeals          of   Rule    11(c)(1)(C)          sentences

only under paragraphs (3) and (4) of subsection 3742(a).                                          By

clear implication, then, the provision would seem to allow such

appeals under paragraph (2) of that subsection, i.e., appeals

“imposed       as    a     result    of      an       incorrect      application          of     the

sentencing          guidelines.”          18          U.S.C.      § 3742(a)(2);         see     POM

Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2238 (2014)

(applying the principle of expressio unius est exclusio alterius

to conclude that Congress’s express preclusion of some legal

                                                  9
provisions indicates an intention to preserve others).                                     The rule

we     articulate         today     fittingly         allows        for    at     least        some

stipulated         plea    sentences       to        be       appealed    under        subsection

3742(a)(2).

       None    of     this        helps    Defendant            Kristin        Williams       here,

however, because her plea agreement did not expressly rely on

the Guidelines to calculate the agreed-upon sentence.                                      The plea

agreement      for    Defendant       Kristin         Williams          simply    states        that

“both parties agree that the appropriate disposition of this

case       . . .     is     a     sentence       of           120   months       [of]         actual

incarceration,        followed       by    the       appropriate         statutory          term   of

supervised release.”               Plea Agreement at 6–7, United States v.

Williams, No. 4:13-cr-00843-RBH-9 (D.S.C. filed Apr. 28, 2014),

ECF No. 335. 3        Nowhere in the agreement is there a Guidelines-

based calculation of an imprisonment term.                                Consequently, the

sentence      was     not       “imposed     as           a    result     of     an        incorrect

application          of     the      sentencing               guidelines,”            18      U.S.C.

       3
       There is a note in Defendant Kristin Williams’s agreement
providing that this stipulation is “subject to any downward
departure as set forth in paragraph 8.”        Id. at 7.    That
paragraph allows for the government to move the court for a
downward departure or reduction in sentence on the basis of the
defendant’s substantial assistance in accordance with section
5K1.1 of the Guidelines.    Id. at 5.    However, that paragraph
also states that “[a]ny such motion by the Government is not
binding upon the Court, and should the Court deny the motion,
the Defendant will have no right to withdraw his plea.” Id. In
other words, the departure motion was not a condition of the
stipulated Rule 11(c)(1)(C) agreement, and the agreement was
therefore not based on a Guidelines calculation.
                                                10
§ 3742(a)(2), and no provision under Section 3742 permits us to

review the sentence’s reasonableness.

                                    IV.

     We have examined the entire record in accordance with the

requirements   of   Anders,   386    U.S.   738,   and    have    found   no

meritorious    issues   for   appeal.        Accordingly,        we   affirm

Defendants’ convictions.      Further, we dismiss Defendant Kristin

Williams’s appeal of her sentence.

                                                         AFFIRMED IN PART;
                                                         DISMISSED IN PART




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