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United States v. Alexander Simmons, 10-5277 (2011)

Court: Court of Appeals for the Fourth Circuit Number: 10-5277 Visitors: 14
Filed: Sep. 09, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5277 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEXANDER ANTONIO SIMMONS, a/k/a Ace, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:09-cr-00396-NCT-3) Submitted: September 6, 2011 Decided: September 9, 2011 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per cur
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5277


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALEXANDER ANTONIO SIMMONS, a/k/a Ace,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00396-NCT-3)


Submitted:   September 6, 2011            Decided:   September 9, 2011


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas H. Johnson, Jr., GRAY, JOHNSON & LAWSON, LLP, Greensboro,
North Carolina, for Appellant.      Ripley Rand, United States
Attorney, Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Alexander Antonio Simmons appeals the district court’s

judgment, arguing that the court unreasonably imposed a sentence

that      ran    consecutive     to    his       unrelated,      undischarged      state

sentences rather than concurrent with them.                          For the reasons

that follow, we find no sentencing error.

                Simmons pled guilty to one count of conspiracy to make

and possess counterfeited securities, in violation of 18 U.S.C.

§   471    (2006).        The    charges     and      conviction     stemmed     out   of

Simmons’        central   role    in    a    conspiracy         to   manufacture       and

disseminate counterfeit $100 bills.

                At the time of his sentencing, Simmons was serving

several state court sentences, each of which was unrelated to

his federal offense.            The presentence report (“PSR”) prepared in

Simmons’ case assigned him a total offense level of six and a

criminal history category of VI, based on his eighteen amassed

criminal history points.              With respect to Simmons’ undischarged

state sentences, the PSR observed that the court could impose a

sentence concurrent, partially concurrent, or consecutive to the

undischarged       sentences     pursuant        to   U.S.    Sentencing   Guidelines

Manual      (“USSG”)      § 5G1.3(c)     (2008).             Ultimately,   the     court

imposed a fifteen-month consecutive sentence, which fell within

the applicable advisory Guidelines range of 12 to 18 months.



                                             2
               We   review    a    sentence      for      reasonableness             under     a

deferential         abuse-of-discretion          standard.           Gall       v.     United

States,    
552 U.S. 38
,    51    (2007).          A    reasonableness           review

includes both procedural and substantive components.                                  
Id. A sentence
      is   procedurally       reasonable       where      the    district        court

committed no significant procedural errors, such as improperly

calculating the Guidelines range, failing to consider the 18

U.S.C. § 3553(a) (2006) factors, or insufficiently explaining

the selected sentence.            United States v. Boulware, 
604 F.3d 832
,

837-38 (4th Cir. 2010).                The substantive reasonableness of a

sentence       is     assessed    in     light      of       the    totality         of      the

circumstances.          
Gall, 552 U.S. at 51
.                While a sentence may be

substantively         unreasonable      if   the    §    3553(a)         factors      do     not

support the sentence, “[r]eviewing courts must be mindful that,

regardless of ‘the individual case,’ the ‘deferential abuse-of-

discretion standard of review . . . applies to all sentencing

decisions.’”          United States v. Diosdado-Star, 
630 F.3d 359
, 366

(4th Cir.), cert. denied, 
131 S. Ct. 2946
(2011) (citing 
Gall, 552 U.S. at 52
).             Moreover, a sentence that falls within a

properly        calculated        Guidelines        range           is     presumptively

reasonable.         United States v. Allen, 
491 F.3d 178
, 193 (4th Cir.

2007).     Simmons preserved his current challenge to his sentence

“[b]y drawing arguments from § 3553 for a sentence different

than     the    one    ultimately       imposed,”        such      that    an    abuse        of

                                             3
discretion       must    be    reversed       unless       it   constitutes         harmless

error.         United States v. Lynn, 
592 F.3d 572
, 578 (4th Cir.

2010).

               Simmons cites two sources of authority to support his

claim that the district court unreasonably imposed a consecutive

sentence upon him:            USSG § 5G1.3(c) and 18 U.S.C. § 3584 (2006).

Simmons first asserts that § 5G1.3(c) compels a sentencing court

to   construe     the    undischarged         state    offense     as     if   it    were    a

federal offense and to compute a hybrid Guidelines range that

would be applicable to both offenses.                           Cf. United States v.

Hill,     
59 F.3d 500
,        503    (4th   Cir.      1995).         However,        the

application       notes       to    §     5G1.3(c)    no      longer     advise     such     a

procedure.       See USSG § 5G1.3(c), cmt. n.3(A).                     As this court has

explained, a district court need not calculate a hypothetical

combined Guidelines range to comport with the current version of

§ 5G1.3(c).       United States v. Mosley, 
200 F.3d 218
, 224-25 (4th

Cir. 1999).       Instead, a district court’s discretion in imposing

consecutive       or    concurrent         sentences     is     bounded    only      by    the

relevant factors that the current version of § 5G1.3(c) directs

it   to   consider.           
Id. Those factors
      include    the      concerns

enumerated in 18 U.S.C. § 3553(a) (2006); the type and length of

the prior undischarged sentence; the time likely to be served

before release on the undischarged sentence; and the fact that

the prior undischarged sentence may have been imposed in state

                                              4
court   rather     than    federal      court.      See    USSG    § 5G1.3(c),    cmt.

n.3(A).       The record discloses that the sentencing court properly

considered       the    relevant        factors     before     imposing       Simmons’

sentence.      See United States v. Montes-Pineda, 
445 F.3d 375
, 385

(4th Cir. 2006).

              Simmons      also        suggests     that       his     sentence     is

unreasonable by virtue of the district court’s failure to recite

the applicable statutory and Guidelines factors.                       Cf. Diosdado-

Star, 630 F.3d at 366
.            Despite the fact that the district court

did not explicitly cite either USSG § 5G1.3(c) or 18 U.S.C.A.

§ 3553(a) in its explanation of Simmons’ sentence, we conclude

from    the    record     that    proper       consideration      of   the    relevant

factors animated the court’s sentencing decision.                         The record

reflects the court’s awareness of Simmons’ personal history and

characteristics, as well as its assessment that Simmons was one

of   the   organizers      of    the    counterfeiting       scheme    and    actively

recruited      other    individuals       to    disseminate       fraudulent    bills.

Indeed,    the    court    explained       that   it   based      Simmons’    sentence

largely on the degree of his involvement in the counterfeiting

scheme.        Accordingly,       we   conclude    that    the     district    court’s

“individualized assessment” of the § 3553(a) factors in this




                                            5
case       is    apparent        from       the     sentencing         proceedings.       United

States v. Carter, 
564 F.3d 325
, 330 (4th Cir. 2009). *

                 We   must        likewise          conclude          that     the   consecutive

sentence imposed by the district court was not an abuse of the

discretion         afforded       it        under    18      U.S.C.    §     3584(b).     Section

3584(b)         provides     that       a    district         court    may    impose    sentences

either consecutively or concurrently and directs the court to

consider “the factors set forth in section 3553(a)” when making

this decision.             
Id. As Simmons
acknowledges, a district court

considering           whether       to        run        a    sentence       consecutively    or

concurrently therefore has the same breadth of discretion under

§ 3584 that § 3553(a) affords to other sentencing decisions.

United States v. Becker, 
636 F.3d 402
, 408 (8th Cir. 2011);

United States v. Johnson, 
138 F.3d 115
, 119 (4th Cir. 1998).

For the reasons previously identified, our review of the record

persuades us that the district court adequately considered the

factors enumerated in § 3553(a).                             It follows that the court did

not abuse its discretion under § 3584, and that the consecutive

sentence imposed upon Simmons is reasonable.                                  
Becker, 636 F.3d at 408
.

       *
       Of course, where, as here, the district court imposed a
within-Guidelines sentence, the explanation of its sentence may
be “less extensive, while still individualized.”         United
States v. Johnson, 
587 F.3d 625
, 639 (4th Cir. 2009), cert.
denied, 
130 S. Ct. 2128
(2010).



                                                     6
            Because nothing in the record defeats the presumption

of   reasonableness    accorded     to       the   within-Guidelines      sentence

imposed   upon   Simmons,    the    district         court’s   judgment   must   be

affirmed.     
Allen, 491 F.3d at 193
.      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.

                                                                          AFFIRMED




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Source:  CourtListener

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