United States v. Simmons

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4534
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: February 7, 2011 Decided: March 17, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Stephanie A. Gallagher, LEVIN & GALLAGHER LLC, Baltimore,
Maryland, for Appellant. William N. Nettles, United States
Attorney, 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Unpublished opinions are not binding precedent in this circuit.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 pled guilty to armed bank
robbery (Count 2), 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 3), in violation of 18 U.S.C. § 924(c)
(2006), and possession of a firearm and ammunition by a felon
(Count 4), in violation of 18 U.S.C. § 922(g)(1) (2006). The
district court sentenced Simmons as a career offender to
concurrent terms of 202 months and 120 months on Counts 2 and 4,
respectively, and a consecutive 60-month term on Count 3,
totaling 262 months’ imprisonment.
On appeal, counsel contends that the district court
erred in finding that Simmons’s convictions under South
Carolina’s blue light statute were crimes of violence for career
offender purposes. Counsel also asserts that the district court
erred in alternatively finding that Simmons is a de facto career
offender. In light of this court’s decision in United States v.
Rivers, 595 F.3d 558 (4th Cir. 2010), the Government concedes
that Simmons’s South Carolina convictions are not crimes of
violence. However, the Government argues that the district
court did not plainly err in alternatively finding that Simmons
is a de facto career offender. The Government also contends
that the facts surrounding the convictions, Simmons’s
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recidivism, and his thirty-three criminal history points support
an upward departure.
Appellate review of a district court’s imposition of a
sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” is for abuse of discretion. Gall
v. United States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. at 51. “Procedural
reasonableness evaluates the method used to determine a
defendant’s sentence.” United States v. Mendoza-Mendoza, 597
F.3d 212, 216 (4th Cir. 2010). This court must assess whether
the district court properly calculated the advisory Guidelines
range, considered the 18 U.S.C. § 3553(a) (2006) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
49-50; see also United States v. Lynn, 592 F.3d 572, 576 (4th
Cir. 2010) (“[A]n individualized explanation must accompany
every sentence.”); United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009). “Substantive reasonableness examines the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” Mendoza-
Mendoza, 597 F.3d at 216
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Because counsel preserved her procedural challenge to
the sentence by objecting to Simmons’s classification as a
career offender, this court’s review is for an abuse of
discretion. See Lynn, 592 F.3d at 581, 583-84. If the district
court procedurally erred and, thus, abused its discretion, this
court must reverse unless the error is harmless. Id. at 581,
585.
In Rivers, decided after the district court imposed
sentence upon Simmons, this court determined that “under no
circumstance is a violation of South Carolina’s blue light
statute a violent felony.” 595 F.3d at 560. Since Simmons’s
South Carolina convictions can no longer be considered predicate
offenses under the career offender guideline provision, and he
has no other qualifying convictions, Simmons is no longer a
career offender under U.S. Sentencing Guidelines Manual (USSG)
§ 4B1.1 (2008). Therefore, the district court procedurally
erred in finding that § 4B1.1 applied.
The Government argues, however, that there is no error
because the district court alternatively found that Simmons is a
de facto career offender. The district court’s finding to this
effect conflicts with circuit precedent. “For an upward
departure to de facto career offender status to be permissible,
‘the defendant has to have been convicted of two prior crimes
each of which constitutes [a career offender predicate
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offense.]’” United States v. Myers, 589 F.3d 117, 126 (4th Cir.
2009) (alterations in original) (quoting United States v.
Harrison, 58 F.3d 115, 118 (4th Cir. 1995)), cert. denied, 130
S. Ct. 3306 (2010). Indeed, “[u]nder [the] de facto career
offender method, the district court must conclude that the
defendant’s underlying past criminal conduct demonstrates that
the defendant would be sentenced as a career offender but for
the fact that one or both of the prior predicate convictions may
not be counted.” Harrison, 58 F.3d at 118 (internal quotation
marks omitted).
Simmons cannot be a de facto career offender because,
after Rivers, none of his prior convictions had the potential to
be counted as predicate offenses under § 4B1.1. See id. (“At a
minimum, the defendant has to have been convicted of two prior
crimes each of which constitutes either a crime of violence or a
controlled substance offense.”). Although there may be
alternative bases in the record to support an upward departure
or variance, the district court did not adopt these bases as its
rationale for the sentence imposed, and they may not be
considered by this court. See Carter, 564 F.3d at 329-30 (“[A]n
appellate court may not guess at the district court’s rationale,
searching the record for statements by the Government or defense
counsel or for any other clues that might explain a sentence.”).
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Accordingly, we vacate the sentence and remand for
resentencing in light of our holding. We, of course, indicate
no view as to the appropriate sentence to be imposed upon
Simmons, leaving that determination, in the first instance, to
the district court. 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.
VACATED AND REMANDED
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