United States v. Alexander Simmons , 445 F. App'x 653 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5277
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEXANDER ANTONIO SIMMONS, a/k/a Ace,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00396-NCT-3)
Submitted: September 6, 2011 Decided: September 9, 2011
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas H. Johnson, Jr., GRAY, JOHNSON & LAWSON, LLP, Greensboro,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alexander Antonio Simmons appeals the district court’s
judgment, arguing that the court unreasonably imposed a sentence
that ran consecutive to his unrelated, undischarged state
sentences rather than concurrent with them. For the reasons
that follow, we find no sentencing error.
Simmons pled guilty to one count of conspiracy to make
and possess counterfeited securities, in violation of 18 U.S.C.
§ 471 (2006). The charges and conviction stemmed out of
Simmons’ central role in a conspiracy to manufacture and
disseminate counterfeit $100 bills.
At the time of his sentencing, Simmons was serving
several state court sentences, each of which was unrelated to
his federal offense. The presentence report (“PSR”) prepared in
Simmons’ case assigned him a total offense level of six and a
criminal history category of VI, based on his eighteen amassed
criminal history points. With respect to Simmons’ undischarged
state sentences, the PSR observed that the court could impose a
sentence concurrent, partially concurrent, or consecutive to the
undischarged sentences pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 5G1.3(c) (2008). Ultimately, the court
imposed a fifteen-month consecutive sentence, which fell within
the applicable advisory Guidelines range of 12 to 18 months.
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We review a sentence for reasonableness under a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). A reasonableness review
includes both procedural and substantive components. Id. A
sentence is procedurally reasonable where the district court
committed no significant procedural errors, such as improperly
calculating the Guidelines range, failing to consider the 18
U.S.C. § 3553(a) (2006) factors, or insufficiently explaining
the selected sentence. United States v. Boulware, 604 F.3d 832,
837-38 (4th Cir. 2010). The substantive reasonableness of a
sentence is assessed in light of the totality of the
circumstances. Gall, 552 U.S. at 51. While a sentence may be
substantively unreasonable if the § 3553(a) factors do not
support the sentence, “[r]eviewing courts must be mindful that,
regardless of ‘the individual case,’ the ‘deferential abuse-of-
discretion standard of review . . . applies to all sentencing
decisions.’” United States v. Diosdado-Star, 630 F.3d 359, 366
(4th Cir.), cert. denied, 131 S. Ct. 2946 (2011) (citing Gall,
552 U.S. at 52). Moreover, a sentence that falls within a
properly calculated Guidelines range is presumptively
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007). Simmons preserved his current challenge to his sentence
“[b]y drawing arguments from § 3553 for a sentence different
than the one ultimately imposed,” such that an abuse of
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discretion must be reversed unless it constitutes harmless
error. United States v. Lynn, 592 F.3d 572, 578 (4th Cir.
2010).
Simmons cites two sources of authority to support his
claim that the district court unreasonably imposed a consecutive
sentence upon him: USSG § 5G1.3(c) and 18 U.S.C. § 3584 (2006).
Simmons first asserts that § 5G1.3(c) compels a sentencing court
to construe the undischarged state offense as if it were a
federal offense and to compute a hybrid Guidelines range that
would be applicable to both offenses. Cf. United States v.
Hill, 59 F.3d 500, 503 (4th Cir. 1995). However, the
application notes to § 5G1.3(c) no longer advise such a
procedure. See USSG § 5G1.3(c), cmt. n.3(A). As this court has
explained, a district court need not calculate a hypothetical
combined Guidelines range to comport with the current version of
§ 5G1.3(c). United States v. Mosley, 200 F.3d 218, 224-25 (4th
Cir. 1999). Instead, a district court’s discretion in imposing
consecutive or concurrent sentences is bounded only by the
relevant factors that the current version of § 5G1.3(c) directs
it to consider. Id. Those factors include the concerns
enumerated in 18 U.S.C. § 3553(a) (2006); the type and length of
the prior undischarged sentence; the time likely to be served
before release on the undischarged sentence; and the fact that
the prior undischarged sentence may have been imposed in state
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court rather than federal court. See USSG § 5G1.3(c), cmt.
n.3(A). The record discloses that the sentencing court properly
considered the relevant factors before imposing Simmons’
sentence. See United States v. Montes-Pineda, 445 F.3d 375, 385
(4th Cir. 2006).
Simmons also suggests that his sentence is
unreasonable by virtue of the district court’s failure to recite
the applicable statutory and Guidelines factors. Cf. Diosdado-
Star, 630 F.3d at 366. Despite the fact that the district court
did not explicitly cite either USSG § 5G1.3(c) or 18 U.S.C.A.
§ 3553(a) in its explanation of Simmons’ sentence, we conclude
from the record that proper consideration of the relevant
factors animated the court’s sentencing decision. The record
reflects the court’s awareness of Simmons’ personal history and
characteristics, as well as its assessment that Simmons was one
of the organizers of the counterfeiting scheme and actively
recruited other individuals to disseminate fraudulent bills.
Indeed, the court explained that it based Simmons’ sentence
largely on the degree of his involvement in the counterfeiting
scheme. Accordingly, we conclude that the district court’s
“individualized assessment” of the § 3553(a) factors in this
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case is apparent from the sentencing proceedings. United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). *
We must likewise conclude that the consecutive
sentence imposed by the district court was not an abuse of the
discretion afforded it under 18 U.S.C. § 3584(b). Section
3584(b) provides that a district court may impose sentences
either consecutively or concurrently and directs the court to
consider “the factors set forth in section 3553(a)” when making
this decision. Id. As Simmons acknowledges, a district court
considering whether to run a sentence consecutively or
concurrently therefore has the same breadth of discretion under
§ 3584 that § 3553(a) affords to other sentencing decisions.
United States v. Becker, 636 F.3d 402, 408 (8th Cir. 2011);
United States v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998).
For the reasons previously identified, our review of the record
persuades us that the district court adequately considered the
factors enumerated in § 3553(a). It follows that the court did
not abuse its discretion under § 3584, and that the consecutive
sentence imposed upon Simmons is reasonable. Becker, 636 F.3d
at 408.
*
Of course, where, as here, the district court imposed a
within-Guidelines sentence, the explanation of its sentence may
be “less extensive, while still individualized.” United
States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert.
denied, 130 S. Ct. 2128 (2010).
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Because nothing in the record defeats the presumption
of reasonableness accorded to the within-Guidelines sentence
imposed upon Simmons, the district court’s judgment must be
affirmed. Allen, 491 F.3d at 193. 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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