United States v. Terrence L. Simmons , 633 F. App'x 779 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12574
Non-Argument Calendar
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D.C. Docket No. 2:15-cr-14002-JEM-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
TERRENCE L. SIMMONS,
Defendant–Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 31, 2015)
Before WILLIAM PRYOR, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:
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Defendant Terrence Simmons appeals his sentence for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). After
Defendant pled guilty, the district court sentenced him to 64 months’ imprisonment
and 3 years of supervised release. In addition to the standard conditions, the
district court imposed a special condition of supervised release prohibiting
Defendant from associating with known gang members while on supervised
release. On appeal, Defendant argues that the district court erred in finding that he
was a gang “associate,” and therefore abused its discretion in imposing the above-
mentioned special condition of supervised release. After careful review, we
affirm.
We review the district court’s factual findings for clear error. United States
v. McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006). But we review the district
court’s imposition of a special condition of supervised release for abuse of
discretion. United States v. Moran, 573 F.3d 1132, 1137 (11th Cir. 2009).
A district court is permitted to impose any condition of supervised release it
deems appropriate, so long as it reasonably relates to certain factors enumerated in
18 U.S.C. § 3553(a). 18 U.S.C. § 3583(d)(1). The relevant § 3553(a) factors to be
considered when imposing special conditions of supervised release are the nature
and circumstances of the offense, the history and characteristics of the defendant,
and the need for the sentence imposed to: (1) afford adequate deterrence to
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criminal conduct; (2) protect the public from further crimes of the defendant; and
(3) provide the defendant with needed educational or vocational training, medical
care or other correctional treatment in the most effective manner. See id.; see also
18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D). Additionally, the sentencing court is
permitted to impose a special condition if it “involves no greater deprivation of
liberty than is reasonably necessary,” and is consistent with the policy statements
of the Sentencing Commission. 18 U.S.C. § 3583(d)(2)-(3). Because U.S.S.G.
§ 5D1.3(b) mirrors § 3583(d), we consider that guideline provision together with
the statute when reviewing the district court’s imposition of a special condition of
supervised release. Compare U.S.S.G. § 5D1.3(b), with 18 U.S.C.
§ 3583(d)(1)-(3); see United States v. Okoko, 365 F.3d 962, 965 n.5 (11th Cir.
2004) (noting that we consider § 5D1.3(b) in conjunction with § 3583(d) when
reviewing a special condition of supervised release).
We conclude that the district court did not clearly err in finding that
Defendant was a gang “associate.” Nor did the district court abuse its discretion in
imposing a special condition on supervised release prohibiting Defendant from
associating with gang members while of supervised release. The record showed
that the present offense involved Defendant’s sale of a gun to a confidential
informant, where the confidential informant and Defendant agreed to meet at the
residence of a known gang member. When the confidential informant arrived,
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Defendant was with another individual, who was also a known gang member.
Moreover, recorded conversations between Defendant and his associates during the
transaction revealed that Defendant had admitted committing several robberies and
had discussed setting up a house from which to sell drugs. The record further
showed that the Florida Department of Corrections made a finding that Defendant
was part of a gang during his incarceration for a state crime in 2009, and
Defendant had admitted his gang affiliation to a police officer in July 2005.
Defendant does not dispute this evidence, but instead argues that it is
insufficient to show that he associated with gang members. However, because the
unrefuted evidence supports the district court’s finding that Defendant associated
with gang members, the district court’s finding was not clearly erroneous. See
United States v. Rodriguez, 751 F.3d 1244, 1255 (11th Cir. 2014) (stating that
there can be no clear error where the district court’s findings are supported by the
record), cert. denied, 135 S. Ct. 310 (2014).
Furthermore, the district court’s imposition of a special condition prohibiting
Defendant from associating with known gang members is reasonably related to the
§ 3553(a) factors. See 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b). As to the
nature and circumstances of the offense, two known gang members were involved
in Defendant’s commission of the present offense. See 18 U.S.C. § 3553(a)(1).
With respect to Defendant’s history and characteristics, the government provided
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documentation showing that Defendant started associating with gangs as early as
2005, when he admitted his gang association to a police officer. See id. In any
event, regardless of Defendant’s past gang association, the district court’s
imposition of a special condition prohibiting him being involved with gang
members while on supervised release is a prudent directive, especially given
Defendant’s prior convictions for sale and possession of cocaine and for being a
felon in possession of a firearm.
Moreover, the special condition also reasonably relates to the need to protect
the public from further crimes by Defendant, as evidenced by the recorded
conversations revealing Defendant’s plans to commit future crimes with a known
gang member. See id. § 3553(a)(2)(C). Because the special condition is
reasonably related to at least two of the § 3553(a) factors and does not unduly
restrict Defendant’s liberties, the district court did not abuse its discretion by
imposing this special condition of supervised release. See 18 U.S.C. § 3583(d)(1)-
(2); see also United States v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000)
(concluding that a special condition of supervised release need not be related to
each factor listed under U.S.S.G. § 5D1.3(b)).
For the above reasons, Defendant’s sentence is AFFIRMED.
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