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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60552

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

March 22, 2010

Charles R. Fulbruge III

Clerk

Case: 08-60552 Document: 00511057647 Page: 1 Date Filed: 03/22/2010
No. 08-60552

2

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.

Case: 08-60552 Document: 00511057647 Page: 2 Date Filed: 03/22/2010