United States v. Arthur Simmons , 472 F. App'x 216 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4532
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTHUR JERMAIN SIMMONS, a/k/a Melvin Davis, a/k/a Arthur
Germain Simmons, a/k/a Arthur Germaine Simmons, a/k/a Arther
Simmons, a/k/a Arthur German Simmons, a/k/a Arthur Jermaine
Simmons,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:08-cr-00688-PMD-1)
Submitted: March 13, 2012 Decided: March 29, 2012
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher R. Antley, DEVLIN & PARKINSON, P.A., Greenville,
South Carolina, for Appellant. Sean Kittrell, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arthur Jermain Simmons appeals the 180-month aggregate
sentence imposed on him at resentencing after he pled guilty to
armed bank robbery (“Count Two”), in violation of 18 U.S.C.
§ 2113(a), (d) (2006), using and carrying a firearm during and
in relation to a crime of violence (“Count Three”), in violation
of 18 U.S.C. § 924(c) (2006), and possession of a firearm and
ammunition by a felon (“Count Four”), in violation of 18 U.S.C.
§ 922(g)(1) (2006). Simmons’ counsel has filed a brief * pursuant
to Anders v. California, 386 U.S. 738 (1967), in which he states
that he has divined no meritorious grounds for appeal but
requesting that we review three potential areas of error:
(1) whether it was improper to deny Simmons’ motion to withdraw
his guilty plea to Count Three; (2) whether the district court
failed to adequately explain its selected sentence; and
(3) whether Simmons’ sentence is both procedurally and
substantively unreasonable because the district court continued
to assess him as a career offender, notwithstanding this court’s
holding to the contrary in Simmons’ previous direct appeal.
Having reviewed the record, we affirm the judgment of the
district court.
*
Simmons was informed of his right to file a supplemental
brief but elected not to do so.
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First, we conclude that the district court did not
abuse its discretion in denying Simmons’ motion to withdraw his
guilty plea to Count Three. See United States v. Ubakanma, 215
F.3d 421, 424 (4th Cir. 2000) (stating standard of review). “A
defendant has no absolute right to withdraw a guilty plea,”
United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003)
(internal quotation marks omitted), but instead bears the burden
of showing a “fair and just reason” for withdrawing his plea.
Fed. R. Crim. P. 11(d)(2)(B); United States v. Battle, 499 F.3d
315, 319 (4th Cir. 2007). See also United States v. Moore, 931
F.2d 245, 248 (4th Cir. 1991) (describing several factors that
should inform a district court’s determination whether to allow
a defendant to withdraw a guilty plea).
Here, although Simmons argues that he is legally
innocent of the offense charged in Count Three because the gun
remained in his van during the bank robbery, we cannot agree.
See 18 U.S.C. § 924(c)(1)(A) (criminalizing anyone who “uses,”
“carries,” or “possesses” a firearm “during and in relation to
any crime of violence”); Muscarello v. United States, 524 U.S.
125, 127 (1998) (someone who knowingly possesses and conveys
firearms in a vehicle “carries” a firearm for purposes of
§ 924(c)); United States v. McCaskill, 676 F.2d 995, 1000 (4th
Cir. 1982) (noting that flight is a part of a robbery offense).
Accord United States v. Williams, 344 F.3d 365, 372-73 (3d Cir.
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2003) (collecting cases and upholding a § 924(c) conviction
where the defendant bank robber carried the gun only in his car,
not into the bank); United States v. Adkins, 203 F. App’x 472,
473-74 (4th Cir. Oct. 23, 2006) (defendant used weapon “during”
a carjacking when firing shots while escaping). Because there
is no other reason to believe that Simmons’ plea was defective,
it was no abuse of discretion for the district court to deny
Simmons’ motion to withdraw it.
As for Simmons’ sentence, we review it for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). Although counsel
suggests that Simmons’ sentence was not adequately explained by
the district court, see United States v. Carter, 564 F.3d 325,
330 (4th Cir. 2009), the district court’s explanation “need not
be elaborate or lengthy.” United States v. Johnson, 587 F.3d
625, 639 (4th Cir. 2009). Nor must the district court
“robotically tick through § 3553(a)’s every subsection”; it must
only provide “some indication” that it considered the § 3553(a)
factors with respect to the defendant before it and also
considered any nonfrivolous arguments raised by the parties at
sentencing. United States v. Montes-Pineda, 445 F.3d 375, 380
(4th Cir. 2006). Our review of the record in this case
convinces us that the district court’s explanation is sufficient
to allow for “‘meaningful appellate review,’” Carter, 564 F.3d
4at 330 (quoting Gall, 552 U.S. at 50), such that we need “not
guess at the district court’s rationale.” Id. at 329. We
therefore decline to find the sentence imposed upon Simmons
procedurally unreasonable in this regard.
Moreover, we reject Simmons’ suggestion that his
sentence is both procedurally and substantively unreasonable
because the district court enhanced his sentence upon its
conclusion that Simmons was a career recidivist, despite the
fact that Simmons was not technically a career offender under
the Guidelines. When a district court imposes a sentence that
falls outside of the applicable Guidelines range, we consider
“whether the sentencing court acted reasonably both with respect
to its decision to impose such a sentence and with respect to
the extent of the divergence from the sentencing range.” United
States v. Hernandez–Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). In conducting this review, the appellate court “must
give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51. Thus, even if we could have
reasonably reached a different sentencing result than that
arrived at by the district court, “this fact alone is
‘insufficient to justify reversal of the district court.’”
United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007)
(quoting Gall, 552 U.S. at 51).
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Here, even if the district court failed to employ the
proper incremental analysis in determining an appropriate degree
of departure, see United States v. Dalton, 477 F.3d 195, 199
(4th Cir. 2007), any such procedural error is harmless where
“the upward variance based on the § 3553(a) factors justifie[s]
the sentence imposed.” United States v. Rivera-Santana, 668
F.3d 95, 104 (4th Cir. 2012). Our review of the record
persuades us that the district court’s analysis of the § 3553(a)
factors as they applied to Simmons’ case is adequate to support
the upward variant sentence ultimately imposed. See id.; United
States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008). We are
likewise convinced that the district court’s sentencing
determinations were otherwise substantively reasonable and
should therefore remain undisturbed. See Evans, 526 F.3d at
160; see also United States v. Diosdado–Star, 630 F.3d 359, 367
(4th Cir.), cert. denied, 131 S. Ct. 2946 (2011).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the judgment of the district court.
This court requires that counsel inform Simmons, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Simmons requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
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representation. Counsel’s motion must state that a copy thereof
was served on Simmons.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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