United States v. Damarious Simmons ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3119
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Damarius Asim Simmons, also *
known as D-Mac, also known as “D,” * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 30, 2005
Filed: February 1, 2006
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Before BYE, MCMILLIAN,1 and RILEY, Circuit Judges.
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PER CURIAM.
Damarius Asim Simmons (Simmons) pled guilty to conspiring to distribute,
within 1,000 feet of a protected location, crack cocaine, a mixture containing cocaine,
and a mixture containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) - (b)(1),
846, and 860. Pursuant to the United States Sentencing Guidelines (Guidelines),
1
The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to Eighth Circuit Rule
47E.
which were mandatory at the time of sentencing, the district court2 sentenced
Simmons to 360 months’ imprisonment, the bottom of the calculated sentencing range
of 360 months’ to life imprisonment. On appeal, we affirmed Simmons’s convictions
and sentence. United States v. Simmons, 100 F. App’x 600 (8th Cir. 2004), vacated,
125 S. Ct. 1018 (2005). Simmons then filed a petition for a writ of certiorari in the
United States Supreme Court, which the Court granted on January 24, 2005. The
Court vacated our judgment and remanded the case to us for further consideration in
light of the Court’s decision in Booker v. United States, 543 U.S. 220, 125 S. Ct. 738
(2005). Simmons v. United States, 125 S. Ct. 1018 (2005).
Because Simmons did not raise any Sixth Amendment issue or object to the
application of mandatory Guidelines during sentencing, we review his sentence for
plain error. See United States v. Pirani, 406 F.3d 543, 548-49 (8th Cir.) (en banc),
cert. denied, 126 S. Ct. 266 (2005).
While the district court plainly erred in sentencing Simmons under a mandatory
Guidelines scheme, we conclude the error was not prejudicial because the record does
not establish a reasonable probability Simmons would have received a more favorable
sentence under an advisory Guidelines scheme. See id. at 550-53. Although the
district court sentenced Simmons at the bottom of the calculated sentencing range, we
have repeatedly recognized “[a] sentence at the bottom of the Guideline range ‘is
insufficient, without more, to demonstrate a reasonable probability that the court
would have imposed a lesser sentence absent the Booker error.’” United States v.
Barth, 424 F.3d 752, 765 (8th Cir. 2005) (quoting Pirani, 406 F.3d at 553). See, e.g.,
United States v. Martinez-Noriega, 418 F.3d 809, 814 (8th Cir. 2005). Furthermore,
the record suggests the district court would not have imposed a lesser sentence. The
district court denied a downward departure for overstated criminal history, and noted
2
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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there was “a very high likelihood of recidivism,” Simmons had “shown violent
tendencies in his criminal history,” and other courts’ efforts to show leniency to
Simmons had “not deterred [him] from his criminal conduct.” Because the district
court’s statements do not support a finding of prejudice, we conclude Simmons has
not demonstrated plain error warranting relief.
We also find the sentence is not unreasonable. See Booker, 543 U.S. at ___,
125 S. Ct. at 765-66 (appellate courts now review sentences for unreasonableness; 18
U.S.C. § 3553(a) sets forth factors that guide sentencing and in turn will guide
appellate courts in determining whether a sentence is unreasonable).
Therefore, we reaffirm Simmons’s convictions and sentence.
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