United States of America v. Timothy Towan Kelly, a/k/a Big Hurt, a/k/a Hurt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4802
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY TOWAN KELLY, a/k/a Big Hurt, a/k/a Hurt,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief
District Judge. (3:07-cr-00155-JFA-8)
Submitted: July 30, 2009 Decided: August 11, 2009
Before MICHAEL, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James A. Brown, Jr., LAW OFFICE OF JAMES BROWN, JR., PA,
Beaufort, South Carolina, for Appellant. Stacey Denise Haynes,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant to a plea agreement, Timothy Towan Kelly pled
guilty to conspiracy to possess with intent to distribute and to
distribute fifty grams or more of cocaine base (“crack”), five
kilograms or more of cocaine, and a quantity of marijuana, in
violation of 21 U.S.C. § 846 (2006). The district court
sentenced Kelly to 240 months’ imprisonment. Kelly timely
appealed.
Kelly’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), questioning whether
the Government breached the plea agreement by failing to
withdraw the 21 U.S.C. § 851 (2006) information seeking an
enhanced minimum penalty based on Kelly’s prior felony drug
conviction, but concluding that there are no meritorious grounds
for appeal. Kelly was advised of his right to file a pro se
supplemental brief, but he did not file one. Finding no
meritorious grounds for appeal, we affirm.
Kelly was charged with a drug trafficking conspiracy
and other offenses. The Government also filed an information
pursuant to 21 U.S.C. § 851, seeking an enhanced minimum penalty
based on Kelly’s prior felony drug conviction. This enhancement
increased the statutory mandatory minimum sentence from ten
years to twenty years. Pursuant to a plea agreement, Kelly
agreed to plead guilty to the conspiracy count and the
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Government agreed to seek dismissal of the remaining counts.
The plea agreement also provided that if Kelly cooperated with
the Government and his cooperation was “deemed by the Government
as providing substantial assistance in the investigation or
prosecution of another person who has committed an offense,” the
Government would withdraw the § 851 enhancement. The Government
did not withdraw the § 851 information and Kelly was sentenced
to the enhanced statutory minimum sentence of 240 months in
prison.
Kelly contends that the Government breached the plea
agreement by failing to withdraw the § 851 enhancement. Because
he did not raise this issue in the district court, we review the
claim for plain error. Puckett v. United States, 129 S. Ct.
1423, 1428 (2009). A plea agreement is breached when a
Government promise that induces the plea goes unfulfilled.
Santobello v. New York, 404 U.S. 257, 262 (1971). Here, the
Government did not fail to fulfill any promises. The decision
as to whether Kelly provided substantial assistance was within
the Government’s discretion and, in any event, the parties
acknowledged at sentencing that Kelly did not provide
substantial assistance. Accordingly, Kelly is not entitled to
relief on this claim.
In accordance with Anders, we have reviewed the record
for any meritorious issues for appeal and have found none.
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Thus, we affirm the district court’s judgment. This court
requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
the client. 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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