United States v. Tyre Simmons

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50088
Plaintiff-Appellee, D.C. No.
2:18-cr-00209-JAK-2
v.
TYRE JORDAN SIMMONS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted August 11, 2020**
Pasadena, California
Before: WARDLAW and VANDYKE, Circuit Judges, and HILLMAN,*** District
Judge.
Tyre Jordan Simmons appeals his conviction by guilty plea and sentence on
charges arising from an incident in which he robbed an undercover Secret Service
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
officer at gunpoint. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291. We affirm.
1. The district court adequately explained why Simmons received a
longer sentence than his co-conspirator, Henderson. The district court noted that it
was “mindful of the disparity issue,” and it can be reasonably inferred from the
record that Simmons received a longer sentence because he had a more serious
criminal history than Henderson and because he was the one who carried out the
robbery and pointed a loaded gun at the agent’s head. See United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008) (en banc) (“[A]dequate explanation in some
cases may . . . be inferred from the PSR or the record as a whole.”).
We also conclude that Simmons’s Guidelines sentence was not substantively
unreasonable. Gall v. United States, 552 U.S. 38, 51 (2007). Simmons focuses on
the disparity between the length of his sentence and that of Henderson. But
because Simmons and Henderson played significantly different roles in the crime,
Henderson’s sentence is not an appropriate point of comparison. United States v.
Carter, 560 F.3d 1107, 1121 (9th Cir. 2009). In any event, “a correctly calculated
Guidelines sentence will normally not be found unreasonable on appeal,” Carty,
520 F.3d at 988, and we conclude that it was within the district court’s discretion to
impose the Guidelines sentence at issue here.
2. Simmons argues that neither his conviction for postal robbery nor his
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conviction for assault on a federal officer qualifies as the predicate “crime of
violence” necessary to uphold his conviction under 18 U.S.C. § 924(c). To qualify
as a crime of violence, the elements of the offense must meet a force requirement
(use, attempted use, or threatened use of “force capable of causing physical pain or
injury to another person”), Johnson v. United States, 559 U.S. 133, 140 (2010), and
an intent requirement (“a higher degree of intent than negligent or merely
accidental conduct”), Leocal v. Ashcroft, 543 U.S. 1, 9 (2004).
Simmons was convicted of assault on a federal officer while using a deadly
or dangerous weapon in violation of 18 U.S.C. § 111(b). We previously held in
United States v. Juvenile Female that this offense is categorically a crime of
violence. 566 F.3d 943, 947 (9th Cir. 2009). Juvenile Female controls here.1
Simmons’s conviction under 18 U.S.C. § 2114(a) for postal robbery while
putting a person’s life in jeopardy by the use of a dangerous weapon also qualifies
as a crime of violence. Because the term “robs” in § 2114 refers to common-law
robbery, United States v. Hasan, 983 F.2d 150, 151 (9th Cir. 1992) (per curiam),
the offense satisfies the force requirement. Stokeling v. United States, 139 S. Ct.
1To the extent Simmons argues that Juvenile Female insufficiently
addressed the intent prong, we have explained that a § 111 conviction requires a
defendant to have acted with “the evil purpose or mental culpability which was the
essential mental component of common-law assault and battery.” United States v.
Acosta-Sierra, 690 F.3d 1111, 1123 (9th Cir. 2012). This is sufficient to satisfy the
intent requirement.
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544, 555 (2019) (holding that common-law robbery categorically satisfies
Johnson’s force requirement). We reject Simmons’s argument that the crime fails
to satisfy the intent requirement under Leocal. We have held that the conduct
required for bank robbery under § 2113 necessarily satisfies the intent prong,
United States v. Watson, 881 F.3d 782, 785 (9th Cir. 2018) (per curiam), and cases
interpreting the bank robbery and postal robbery statutes “have long been authority
for decisions in cases arising under the other,” because the required conduct for
these offenses is nearly identical. United States v. Hudson, 564 F.2d 1377, 1380
n.2 (9th Cir. 1977).
AFFIRMED.
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