United States v. Simmons

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50112
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN O. SIMMONS,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-00-CR-237-ALL
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December 2, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Kevin O. Simmons appeals the district court’s decision to sentence him as a career offender
and, alternatively, to depart upward fro m the guidelines to arrive at a sentence of 194 months of
imprisonment. Specifically, Simmons challenges the finding that his two prior bank robbery
convictions in 1991 were not consolidated for sentencing and therefore not related under U.S.S.G.
§ 4A1.2(a)(2). Simmons argues that the two prior bank robbery convictions are “related” under
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
§ 4A1.2 because there was factual connexity between his 1991 robberies in that he robbed two banks
within hours on the same day, using the same note, and he confessed to both at the same time. Also,
he pleaded guilty to them at a single proceeding, under a single plea agreement, both charges were
set for a single sentencing hearing, one PSR was prepared for both offenses, and the court announced
a single 84-month sentence for both offenses. This argument lacks merit. Simmons’ prior offenses
are factually distinct. They were simply the same type of offense in temporal proximity. See e.g.,
United States v. Mota-Aguirre, 186 F.3d 596, 600 (5th Cir. 1999); United States v. Kates, 174 F.3d
580, 584 (5th Cir. 1999). Also, when factually distinct offenses are sentenced “on the same day
and/or in the same proceeding,” those offenses are not considered related under § 4A1.2. See United
States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1998).
Simmons’ argument that the district court failed to give acceptable reasons for its alternative
upward departure also lacks merit. The court adopted, both at sentencing and in subsequent written
reasons for sentence, the reasons set forth in the Government’s sentencing memorandum. The
Government relied on unscored offenses noted in the presentence report, arguing that Simmons’
criminal history substantially underrepresented the seriousness of his criminal past and the likelihood
that he would commit other crimes. See United States v. De Luna-Trujillo, 868 F.2d 122, 124-25
(5th Cir. 1989). It also relied on prior leniency from the judicial system, as well as Simmons’ abysmal
record on supervision. See United States v. Carpenter, 963 F.2d 736, 744 (5th Cir. 1992); United
States v. Roberson, 872 F.2d 597, 606 & n.8 (5th Cir. 1989). The Government relied on Simmons’
violent felonious conduct during the pendency of this case. See United States v. Laury, 985 F.2d
1293, 1310 (5th Cir. 1993). Finally, it relied on the need to protect the public. See United States v.
Rosogie, 21 F.3d 632, 634 (5th Cir. 1994); Roberson, 872 F.2d at 606 n.8; United States v. Fisher,
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868 F.2d 128, 130 (5th Cir. 1989). In light of the factors set forth by the Government, a departure
to a 194-month sentence was not unreasonable. See United States v. Ashburn, 38 F.3d 803, 810 (5th
Cir. 1994). The district court did not abuse its discretion in finding that an upward departure would
be reasonable absent career-offender status. See Koon v. United States, 518 U.S. 81, 96-100 (1996).
AFFIRMED.
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