United States v. Simons , 592 F. App'x 717 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSDecember 2, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 14-3047 and 14-3048
(D.C. Nos. 6:09-CR-10032-MLB-1
LAWRENCE M. SIMONS, and 6:13-CR-10080-MLB-1)
(D. of Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **
Lawrence Simons appeals the substantive reasonableness of two sentences
imposed by the district court—a fifty-one month sentence for felon in possession
of a firearm and unlawful possession of a controlled substance and a twenty-four
month sentence imposed for actions violating the terms of his supervised release
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
for a prior conviction. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). Seeing no reversible error, we AFFIRM.
I. Background 1
In 2009, Simons pleaded guilty to unlawfully distributing a controlled
substance. The district court sentenced him to twenty-four months in prison, to
be followed by three years of supervised release. In 2013, he was convicted of
being a felon in possession of a firearm and unlawful possession of a controlled
substance. The facts of that new conviction led Simons’s probation officer to file
a petition seeking revocation of Simons’s supervised release based on three
violations: (1) commission of new crimes, (2) possession of a firearm, and (3)
failure to notify of a change in residence.
The court simultaneously sentenced Simons on the new conviction and the
supervised release violation. On the new conviction, the court imposed a fifty-
one month sentence. For the supervised release violation, the court imposed a
twenty-four month sentence, to run consecutively to the fifty-one month sentence.
II. Analysis
We review the substantive reasonableness of a sentence imposed by a
district court for abuse of discretion. United States v. Ruby, 706 F.3d 1221, 1225
1
There are two records on appeal in this consolidated case. Cites to the
record in case number 14-3048 are formatted R., Vol. __; cites to the record in
case number 14-3047 are formatted SR., Vol. __.
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(10th Cir. 2013). “We review findings of fact, however, for clear error and legal
determinations de novo.” Id.
A. Fifty-One Month Sentence
Under our review for abuse of discretion, a sentence is only substantively
unreasonable if it exceeds “the bounds of permissible choice, given the facts and
the applicable law.” United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir.
2013). A district court must consider 18 U.S.C. § 3553(a)’s factors in sentencing.
United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). But we defer to the
balance the district court struck among § 3553(a)’s factors unless the balance was
“arbitrary, capricious, or manifestly unreasonable.” United States v. Sells, 541
F.3d 1227, 1239 (10th Cir. 2008). And we presume reasonableness if the
sentence is within the properly calculated guideline range recommended by the
United States Sentencing Guidelines. Chavez, 723 F.3d at 1233. A defendant
bears the burden of rebutting that presumption in light of § 3553(a)’s factors. Id.
This fifty-one month sentence was imposed pursuant to Simons’s
convictions for felon in possession of a firearm and possessing a controlled
substance. The Guidelines imprisonment range was forty-one to fifty-one months.
Thus, we presume the district court did not abuse its discretion.
Simons fails to rebut that presumption. Nothing supports his claim that the
court placed a “manifestly unreasonable” emphasis on the factor requiring the
sentence to reflect the seriousness of the offense. Simons simply attempts to
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reargue the district court’s finding that Simons did not possess the firearm for
self-defense. He asserts he did in fact possess it for that purpose and that the
district court overestimated the seriousness of the offense by finding otherwise.
But none of his arguments show the finding was clearly erroneous or that it
caused the court to unduly emphasize this factor.
Simons also claims the court unreasonably emphasized the factor requiring
the sentence to promote respect for the law by commenting on the contrast
between Simons’s admission at sentencing that he had possessed the gun and his
claims at trial that he had not. But Simons merely offers conclusory assertions
that the court’s observation led it to overweight that factor. He also suggests the
comments penalized him for exercising his right to a trial. But he cites no
authority supporting that claim, and our independent research reveals none.
The court expressly announced that it had “considered the factors under
[§] 3553.” R., Vol. III. at 355. Moreover, it provided a detailed outline of its
reasoning on nearly every factor. That suffices, particularly because we do not
require that district courts “consider individually each factor listed in § 3553(a)
before issuing a sentence.” United States v. Contreras-Martinez, 409 F.3d 1236,
1242 (10th Cir. 2005). Simons’s arguments amount to a disagreement with the
court’s factual findings and how it weighed the factors, not a showing that the
weighing was unreasonable. He cannot rebut the presumption that this sentence
was reasonable.
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B. Twenty-Four Month Sentence
When a defendant violates the terms of his supervised release, a court may
revoke the supervised release and impose prison time. 18 U.S.C. § 3583(e)(3).
The revoking court may require the defendant to serve “all or part of the term of
supervised release authorized by statute for the offense that resulted in such term
of supervised release without credit for time previously served on postrelease
supervision.” Id. But a defendant cannot be required to serve more than two
years in prison under such a revocation if the underlying offense was a class C
felony. Id. Because Simons’s underlying offense was a class C felony, the
statutorily permitted maximum sentence under this revocation was twenty-four
months.
The Guidelines contain policy statements that recommend sentence ranges
for supervised release violations. See USSG. § 7B1.3(a). The recommended
range here was four to ten months. A court must consider the Guideline policy
statements, but our review for substantive reasonableness is limited to ensuring
that the court did not abuse its discretion. United States v. McBride, 633 F.3d
1229, 1232 (10th Cir. 2011). And that abuse of discretion review applies to all
sentences—“whether inside, just outside, or significantly outside the Guidelines
range.” Smart, 518 F.3d at 806. Thus, if a district court’s reasoning sufficiently
supports its statutorily permissible variance from a Guidelines recommendation,
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we give “due deference” to its determination that the variance was appropriate in
light of all the § 3553(a) factors. See id. at 807.
That due deference resolves this case. Although the district court’s
sentence upon revocation exceeded the Guidelines range, it was within the
statutorily permitted range of twenty-four months. Moreover, the court properly
weighed the § 3553(a) factors. Importantly, because the court only considered the
supervised release violations stemming from the criminal actions leading to the
fifty-one month sentence, the considerations for the fifty-one month sentence
tracked those for the supervised release violation sentence. Consequently, the
fairest reading of the judge’s statement that “I’ve considered everything and I feel
that [the twenty-four month sentence] is appropriate under both the statutory and
policy statements” is that it incorporated the detailed analysis of the § 3553(a)
factors justifying the fifty-one month sentence. R., Vol. III at 364–65. 2
The district court’s incorporation of that detailed analysis sufficed to
support this variance. The court (1) highlighted the seriousness of the “nature
and circumstances” of the violations (possession of a firearm by a felon and
possession of a controlled substance); (2) detailed Simons’s “history and
2
Both parties understand the statement as doing just that. See Aplt. Br. at
15; Aple. Br. at 21–22. Indeed, Simons’s chief challenge on appeal to the
substantive reasonableness of the twenty-four month sentence carries forward the
objections he made to the fifty-one month sentence on the understanding that the
reasoning for both sentences was identical. Aplt. Br. at 15.
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characteristics,” going so far as to note his psychological profile; (3) considered
the “need for the sentence imposed to reflect the seriousness of the offense” in
light of Simons’s lack of respect for the law; (4) noted the failure of Simons’s
previous convictions to provide “adequate deterrence”; (5) noted the consequent
need to “protect the public” by imposing a lengthy sentence; (6) found that
Simons needed no correctional treatment and that this was the most appropriate
sentence under the circumstances; and (7) found that there was no danger of an
unwarranted sentence disparity. R., Vol. III at 352–57.
Simons’s claims that this detailed analysis unreasonably weighed the
factors fail for the same reason they failed to call the fifty-one month sentence
into question. And our deference to statutorily permissible variances from the
Guidelines forecloses his claim that the sentence was unreasonably harsh.
III. Conclusion
For the foregoing reasons, we AFFIRM the substantive reasonableness of
Simons’s sentences.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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