United States v. Simmons , 441 F. App'x 810 ( 2011 )


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  • 09-5086-cr
    United States v. Simmons
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
    FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
    CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
    EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
    “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
    PARTY NOT REPRESENTED BY COUNSEL.
    At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 19th day
    of December, two thousand and eleven.
    Present:
    PETER W. HALL,
    GERARD E. LYNCH,
    DENNY CHIN,
    Circuit Judges.
    ________________________________________________
    UNITED STATES OF AMERICA,
    Appellee,
    v.                                               No. 09-5086-cr
    ASHLEY SIMMONS, A/K/A ROBERT SIMMONS,
    A/K/A ASH,
    Defendant-Appellant.
    ________________________________________________
    FOR APPELLANT:                       ANDREW M. ST. LAURENT, Harris, Cutler & Houghteling,
    New York, NY.
    FOR APPELLEE:                 CELIA A. COHEN, Assistant United States Attorney (Jo Ann
    M. Navickas, Assistant United States Attorney, on the
    brief), for Loretta E. Lynch, United States Attorney for the
    Eastern District of New York., Brooklyn, NY.
    ________________________________________________
    Appeal from the United States District Court for the Eastern District of New York
    (Glasser, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED,
    and DECREED that the judgment of the District Court be and hereby is AFFIRMED.
    Defendant-Appellant Ashley Simmons appeals from the judgment entered by the district
    court (Glasser, J.), convicting him, following a guilty plea, of one count of access device fraud
    under 
    18 U.S.C. §§ 1029
    (a)(2), 1029(c)(1)(A)(i), and 2, and sentencing him in principal part to
    105 months’ imprisonment. Simmons challenges on appeal only the district court’s imposition
    of a four-level leadership enhancement under U.S.S.G. § 3B1.1(a), asserting that the court failed
    to make sufficient factual findings to support the enhancement. We assume the parties’
    familiarity with the underlying facts and procedural history of the case and discuss these only
    where necessary to explain our decision.
    Although Simmons objected at sentencing to the district court’s application of the
    U.S.S.G. § 3B1.1(a) enhancement, he did not assert below that the court failed to make adequate
    factual findings. For this reason, we review his present challenge to the sufficiency of the
    findings only for plain error. See United States v. Ware, 
    577 F.3d 442
    , 452 (2d Cir. 2009). “To
    establish plain error, [an] appellant must show there was (1) error (2) that is plain and (3) that
    affects substantial rights.” United States v. Cossey, 
    632 F.3d 82
    , 86-87 (2d Cir. 2011). If these
    three criteria are satisfied, “we may exercise our discretion to notice the forfeited error only if it
    “‘seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings.’” 
    Id. at 87
     (quoting United States v. Doe, 
    297 F.3d 76
    , 82 (2d Cir. 2002)). In the context of plain error
    review of sentencing issues, we have held that if a district court’s statement provides “‘an
    insufficient basis . . . for us to determine why the district court did what it did,’ that is an error
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    that affects a defendant’s ‘substantial rights.’” Ware, 
    577 F.3d at 452
     (quoting United States v.
    Lewis, 
    424 F.3d 239
    , 247 n.5 (2d Cir. 2005)).
    Section 3B1.1(a) of the Sentencing Guidelines provides that a four-level enhancement is
    appropriate “[i]f the defendant was an organizer or leader of a criminal activity that involved five
    or more participants or was otherwise extensive.” We have held that to apply this enhancement,
    a district court must make specific factual findings, see United States v. Skys, 
    637 F.3d 146
    , 156
    (2d Cir. 2011), and “may satisfy this obligation by adopting the factual findings in the
    [Presentence Report (“PSR”)], either at the sentencing hearing or in the written judgment,”
    United States v. Espinoza, 
    514 F.3d 209
    , 212 (2d Cir. 2008). Here, although the district court
    did not articulate at sentencing its rationale for applying the § 3B1.1(a) enhancement, it
    expressly adopted the PSR in its written Statement of Reasons, which was attached to the
    judgment. Because this procedure is permissible under our precedent, see id., the dispositive
    question is whether, under plain error review, the PSR provides a sufficient factual basis to
    support the enhancement. We conclude that it does.
    As reflected in the PSR, application of the § 3B1.1(a) enhancement was based on the fact
    that the underlying criminal activity involved five or more participants. There was no finding
    that the activity was “otherwise extensive.” See PSR ¶ 30. Simmons maintains, however, that
    the factual findings in the PSR are inadequate to support this conclusion because the PSR does
    not identify with particularity the five alleged participants. Although review of the PSR
    confirms that only three participants—Simmons, Winsome White, and Donnie Bethea, Jr.—are
    identified by name, see United States v. Paccione, 
    202 F.3d 622
    , 625 (2d Cir. 2000) (holding that
    a defendant can be counted as one of the five participants for purposes of § 3B1.1(a)), there are
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    sufficient facts on which to conclude that the criminal activity involved five or more participants.
    The PSR indicates, among other things, that Simmons “used various individuals,” one of whom
    was White, “to recruit others to purchase tickets or merchandise.” PSR ¶ 18. It also states that
    Simmons “purchased fraudulent bank card and credit card account numbers from several
    individuals.” Id. In aggregate, this amounts to at least five participants.
    Accordingly, although we acknowledge that the discussion in the PSR of the factual
    predicate for the § 3B1.1(a) enhancement is less than comprehensive, it nonetheless provides an
    adequate basis for us to determine why the enhancement was warranted. For this reason,
    Simmons cannot demonstrate under plain error review that any purported error as to the factual
    findings supporting the enhancement affects his substantial rights. See Ware, 
    577 F.3d at 452
    .
    We have considered all of Simmons’s remaining arguments and find them to be without
    merit. The judgment of the district court is therefore AFFIRMED.
    FOR THE COURT:
    CATHERINE O’HAGAN WOLFE, CLERK
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