United States v. Simmonds , 425 F. App'x 31 ( 2011 )

10-1651-cr
United States v. Simmonds
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of June, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RALPH K. WINTER,
9 JOSEPH M. McLAUGHLIN,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 10-1651-cr
18
19
20 GEORGE SIMMONDS,
21
22 Defendant-Appellant.
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25
1
1 FOR APPELLANT: JAMES P. EGAN, Assistant Federal Public
2 Defender (Melissa A. Tuohey, on the
3 brief), for Lisa Peebles, Acting Federal
4 Public Defender, Syracuse, NY.
5
6 FOR APPELLEE: J. CAMPBELL BARKER (Brenda K. Sannes and
7 Miroslav Lovric, Assistant United States
8 Attorneys, Northern District of New York,
9 on the brief), Appellate Section,
10 Criminal Division, U.S. Department of
11 Justice, Washington, DC.
12
13 Appeal from a judgment of the United States District
14 Court for the Northern District of New York (McAvoy, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of the district court be
18 AFFIRMED.
19
20 Defendant-Appellant George Simmonds appeals from the
21 judgment of conviction entered by the United States District
22 Court for the Northern District of New York (McAvoy, J.),
23 principally sentencing him to thirty months’ imprisonment
24 for knowingly submitting materially false statements on
25 three monthly supervised release reports, in violation of 18
26 U.S.C. § 1001(a)(3). We assume the parties’ familiarity
27 with the underlying facts, the procedural history, and the
28 issues presented for review.
29
30 [1] Simmonds challenges the sufficiency of the evidence
31 supporting the jury’s finding that his false statements were
32 material. A material statement for purposes of 18 U.S.C.
33 § 1001 has “‘a natural tendency to influence, or [is]
34 capable of influencing, the decision of the decisionmaking
35 body to which it was addressed.’” United States v. Gaudin,
36 515 U.S. 506, 509 (1995) (quoting Kungys v. United States,
37 485 U.S. 759, 770 (1988)). Simmonds argues that his false
38 statements--“yes” or “no” answers to questions regarding
39 compliance with supervised release conditions--were
40 incapable of affecting the probation officer’s investigation
41 because (1) the reports by releasees are inherently
42 unreliable, and (2) a probation officer would rely on other,
43 more reliable investigative tools.
44
45 At the threshold, we do not focus on whether an
46 investigator believes that a statement is true, because it
47 “would be exceedingly strange” to “mak[e] the existence of
2
1 this crime turn upon the credulousness of the federal
2 investigator (or the persuasiveness of the liar).” Brogan
3 v. United States, 522 U.S. 398, 402 (1998).
4
5 In any event, even if the probation officer relied
6 exclusively on other investigative tools, a rational jury
7 could have credited her testimony that she would have
8 adjusted her investigation had Simmonds answered the
9 questions truthfully; the evidence of materiality is thus
10 sufficient. See United States v. Madori, 419 F.3d 159, 166
11 (2d Cir. 2005).
12
13 [2] Simmonds challenges the substantive reasonableness of
14 his within-Guidelines 30-month sentence. A within-
15 Guidelines sentence is not presumptively reasonable, but “in
16 the overwhelming majority of cases, [it] will fall
17 comfortably within the broad range of sentences that would
18 be reasonable in the particular circumstances.” United
19 States v. Friedberg, 558 F.3d 131, 137 (2d Cir. 2009)
20 (internal quotation marks omitted). The district court
21 properly considered “the nature and circumstances of the
22 offense and the history and characteristics of the
23 defendant,” 18 U.S.C. § 3553(a)(1), which include his
24 criminal history and the conduct underlying the false
25 statements. Although Simmonds discounts such conduct as
26 “only illegal because he was on supervised release,”
27 Appellant’s Br. at 35, it was within the court’s broad
28 discretion to weigh the supervised release violations (and
29 the concealment thereof). See 18 U.S.C. § 3553(a)(2)(C)
30 (instructing a court to impose a sentence “to protect the
31 public from further crimes of the defendant”).
32
33 Simmonds’s sentence therefore “falls within the broad
34 range that can be considered reasonable under the totality
35 of the circumstances.” United States v. Jones, 531 F.3d
36 163, 174 (2d Cir. 2008).
37
38 We have considered Simmonds’s other arguments and conclude
39 that they lack merit. For the foregoing reasons, we hereby
40 AFFIRM the judgment of the district court.
41
42
43 FOR THE COURT:
44 CATHERINE O’HAGAN WOLFE, CLERK
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