UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

2 
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. 

3 
4 

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