United States v. Liddell ( 2010 )

Case: 08-60552 Document: 00511057647 Page: 1 Date Filed: 03/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 22, 2010
No. 08-60552
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TIMOTHY LIDDELL,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:96-CR-107-1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Timothy Liddell, federal prisoner # 04385-043, appeals the denial of his
motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2). Liddell
pleaded guilty in 1997 to possession with intent to distribute cocaine base. The
district court sentenced him to a term of 135 months of imprisonment. In 2008,
Liddell moved for a reduction in his sentence based on the United States
Sentencing Commission’s amendments to the base offense levels for crack
cocaine. See U.S.S.G. Supp. to App’x C, amend. 706, amend. 711. The district
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 08-60552 Document: 00511057647 Page: 2 Date Filed: 03/22/2010
No. 08-60552
court determined that Liddell’s amended guidelines range of imprisonment
would be 120-135 months, based on the amended guidelines and the statutory
minimum term for his offense of conviction. After considering the guidelines
amendments, 18 U.S.C. § 3582, and the sentencing factors outlined in 18 U.S.C.
§ 3553(a), the district court declined to reduce Liddell’s sentence based on his
criminal history and his post-conviction conduct. The district court noted that,
while incarcerated, Liddell “had been sanctioned on five separate occasions for
fighting with other inmates, once for failing to obey an order, and once for failing
to stand count.” Liddell timely appealed.
The Government has moved to dismiss Liddell’s appeal, arguing that it is
barred by the appeal waiver contained in Liddell’s written plea agreement. The
provision states that Liddell “waives the right to appeal the sentence imposed
in this case on any ground, including any appeal right conferred by 18 U.S.C.
§ 3742, and waives the right to contest the sentence in any post-conviction
proceeding . . . .” We have held “that a motion for a sentence modification under
18 U.S.C. § 3582(c)(2) is not properly considered an ‘appeal’ or ‘collateral
proceeding’ under the terms of a general waiver of appeal . . ., and, consequently,
appellate review of the denial of a § 3582(c)(2) motion is not barred by such
waivers.” United States v. Cooley, 590 F.3d 293, 297 (5th Cir. 2009). Liddell’s
appeal, therefore, is not barred by the waiver and the Government’s motion to
dismiss the appeal is DENIED.
The district court properly considered the 18 U.S.C. § 3553(a) factors and
acted within its discretion in considering Liddell’s post-conviction conduct in
declining to reduce his sentence. See United States v. Smith,—F.3d—, 2010 WL
366745, *1 (5th Cir. Feb. 3, 2010); United States v. Evans, 587 F.3d 667, 672-73
(5th Cir. 2009), petition for cert. filed (U.S. Jan. 28, 2010) (No. 09-8939).
Accordingly, we AFFIRM the judgment of the district court.
2