Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-22-2005

USA v. Simmons
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2013




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Recommended Citation
"USA v. Simmons" (2005). 2005 Decisions. Paper 1441.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1441


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                       No. 03-2013


                          UNITED STATES OF AMERICA


                                           v.


                              GODFREY L. SIMMONS

                                       Appellant.


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 02-CR-417)
                     District Judge: Honorable Petrese B. Tucker


                                 Argued May 4, 2004

            Before: SLOVITER, FUENTES, and BECKER, Circuit Judges.

                               (Filed: March 22, 2005)

Robert Epstein (Argued)
Assistant Federal Defender
David L. McColgin
Supervising Appellate Attorney
Maureen Kearney Rowley
Chief Federal Defender
Federal Court Division
Defender Association of Philadelphia
Suite 540 West–Curtis Center
Independence Square West
Philadelphia, PA 19106

Counsel for Appellant

Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy United States Attorney for Policy and Appeals
Robert A. Zauzmer
Assistant United States Attorney, Senior Appellate Counsel
Jennifer Arbittier Williams (Argued)
Assistant United States Attorney
615 Chestnut St.
Philadelphia, PA 19106

Counsel for Appellee




                                 OPINION OF THE COURT




FUENTES, Circuit Judge.

       Godfrey L. Simmons, a native of Guyana, was charged with and pled guilty to one

count of illegal reentry after deportation. The District Court sentenced Simmons, pursuant

to the United States Sentencing Guidelines (“U.S.S.G.”), to a 48 month term of

imprisonment. In determining the sentence, the District Court granted the Government’s

motion for an upward departure under U.S.S.G. § 4A1.3 on the grounds that Simmons’

criminal history category did not adequately reflect the seriousness of his past criminal

conduct and the likelihood of recidivism. Simmons thereafter appealed his sentence, arguing

that the District Court erred in imposing the upward departure. This Court heard oral

argument on May 4, 2004.
       Shortly thereafter, the U.S. Supreme Court issued its opinion in Blakely v.

Washington, 

(2004). Simmons filed a motion for leave to file a supplemental

brief, which this Court took under advisement and held C.A.V. pending further decision of

this Court. Following the decision of the Supreme Court in United States v. Booker, 543

U.S. __, 

(2005), and in response to this Court’s directive of February 17,

2005, Simmons now challenges his sentence under Booker.

       Having determined that the sentencing issues appellant raises are best determined by

the District Court in the first instance, we will vacate the sentence and remand for

resentencing in accordance with Booker. Simmons raises no challenge as to his conviction

and accordingly has waived any argument in this regard. We will affirm the judgment of

conviction.