FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 21, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-13037

Non-Argument Calendar

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D. C. Docket No. 04-00006-CR-1-MMP

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

TIMOTHY WIMS, 

a.k.a. Timothy Derrinado Davis, 

a.k.a. John Darren Delgado, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Florida

_________________________

(February 21, 2007)

Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
Wims was also charged with (1) attempting to use physical force against another person 1

with the intent to influence, delay, and prevent the person from testifying in an official

proceeding before a court of the United States, in violation of 18 U.S.C. § 1512(a)(2)(A),

(a)(3)(B)(ii); and (2) threatening and attempting to cause bodily injury to another person with the

intent of retaliating against that person for giving information to a police officer relating to the

commission of a federal offense, in violation of 18 U.S.C. § 1513(b)(2). However, those charges

were later dismissed upon the government’s motion. 

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Timothy Wims appeals his 360-month sentence for conspiracy to

manufacture, distribute, and possess with the intent to manufacture and distribute

more than 5 kilograms of cocaine and more than 50 kilograms of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii), and 846. On 1

appeal, Wims argues that his sentence was unreasonable because he had renounced

criminal activity, was not the leader of the conspiracy, and had cooperated with the

government. For the reasons set forth more fully below, we affirm Wims’s

sentence.

I. Background

The instant case arose out of an investigation of Cleveland Ferguson, Jr., a

drug dealer in Gainesville, Florida. Wims and Ferguson previously had been

involved in the sale of cocaine in the Gainesville area. In 1991, Wims was

convicted of cocaine distribution and sentenced to 120 months’ imprisonment. 

Wims was released from custody in 1995, but his supervised release was revoked

in 1996 because he committed a home invasion. Wims was subsequently released

from custody in 2002. Following that release from prison, Wims contacted
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Ferguson regarding his desire to sell drugs again. Ferguson provided money to

Wims, with which Wims bought cocaine in Miami and transport it back to

Ferguson in Gainesville. Wims also purchased cocaine for himself during these

transactions and converted it into cocaine base for further distribution. 

In September 2003, Wims was involved in a drug transaction with his halfbrother. During that transaction, Wims’s half-brother shot Wims twice in the back

of the head and left him to die. Wims survived and, according to his girlfriend,

Wims thereafter attempted to reestablish himself as a drug dealer in Virginia. 

Wims made approximately four trips from Miami to Virginia to buy and sell

cocaine. Wims was later arrested in Virginia. During the time between Wims’s

arrest and sentencing, Wims made several threats to cooperating defendants and

witnesses against him. Wims also ran after and threatened a witness against him

while they were both imprisoned in Tallahassee, Florida. 

At sentencing, Wims’s counsel requested that, if the court was going to stay

within the guideline range, the court sentence Wims to 360 months’ imprisonment

because Wims was not the leader of the conspiracy. Wims’s counsel further stated

that Wims had stopped engaging in criminal activity the day that he was shot by

his half-brother. The government responded that Wims continued to sell drugs

after he had been shot. Wims then stated on his own behalf that he “didn’t
The district court calculated Wims’s guideline range based upon his adjusted offense

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level of 38 and his criminal history category of VI. Wims does not challenge the court’s

guideline calculation on appeal.

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immediately involve [himself] back in a drug gang after [he] got shot on

September 13, 2003, but eventually [he] couldn’t get no assistance.” 

After hearing the arguments from the parties, the court stated that Wims had

engaged in a life of crime and every time he was released from custody he returned

to crime and drugs. The court also found that Wims had “a very long, long, long

criminal record.” The court then determined that Wims’s guideline range was 360

months’ to life imprisonment, and sentenced Wims to 360 months’ imprisonment.2

The court noted that it was the low-end of the guideline range and that, even

though the court was not bound by the guidelines, the range was appropriate in

Wims’s case. 

II. Discussion

On appeal, Wims argues that his 360-month sentence was unreasonable in

light of the facts and circumstances of his case, and that the court should have

sentenced him below the advisory guideline range. Wims maintains that his

sentence should have been below the guideline range because he: (1) renounced

criminal activity after he was shot and long before he was arrested for the instant

offense; (2) was not the leader of the conspiracy; and (3) cooperated with law
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enforcement even though he did not qualify for a U.S.S.G. § 5K1.1 reduction. 

Ordinarily, we review final sentences for reasonableness. United States v.

Talley, 431 F.3d 784, 786 (11th Cir. 2005). We do not reach the merits of Wims’s

arguments, however, because we conclude that Wims induced or invited the ruling

he now claims was error. We have held that “a party may not challenge as error a

ruling or other trial proceeding invited by that party.” United States v. Love, 449

F.3d 1154, 1157 (11th Cir. 2006) (quotation omitted). “Where invited error exists,

it precludes a court from invoking the plain error rule and reversing.” Id.

(quotation omitted). 

At sentencing, Wims’s counsel explicitly requested that, if the court

intended to sentence Wims within the guideline range, the court should sentence

him to 360 months’ imprisonment. Even though Wims’s counsel prefaced his

request by stating “if the court is inclined to follow” the guideline range, Wims’s

counsel never explicitly requested that the court impose a below-guideline

sentence, nor did counsel direct the court to another term of imprisonment that

would be appropriate in Wims’s case. As such, Wims’s counsel invited the court

to sentence Wims to 360 months’ imprisonment, which sentence the court

imposed. Thus, Wims is precluded from claiming that his sentence was

unreasonable. See Love, 449 F.3d at 1157. Accordingly, Wims’s 360-month
Were we to review this sentence for reasonableness we would have no difficulty in 3

affirming based upon the instant criminal activity, the extensive criminal record of Wims, the

thorough review made by the sentencing judge and his consideration of the legal precedents

controlling sentencing.

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sentence is 

AFFIRMED. 

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