09-1958-cr
United States v. Simmons

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 25th day of June, two thousand and ten.

Present:       GUIDO CALABRESI,
               ROSEMARY S. POOLER,
               DENNY CHIN,
                         Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                                      Appellee,

                          -v-                                        (09-1958-cr)

RANSY SIMMONS,1


                                                      Defendant-Appellant.


Appearing for Appellant::       Randall D. Unger, Bayside, NY.

Appearing for Appellee:         Richard M. Tucker, Assistant United States Attorney for the
                                Eastern District of New York, Brooklyn, NY.

       Appeal from the United States District Court for the Eastern District of New York (Spatt,
J.).


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           The Clerk of Court is directed to amend the official caption in this case to conform to
the listing of the parties above.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Defendant-Appellant Ransy Simmons appeals a May 1, 2009 judgment of the United
States District Court for the Eastern District of New York (Spatt, J.) convicting him, pursuant to
a guilty plea, of distribution and possession with intent to distribute at least five grams of cocaine
base, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B)(iii), and sentencing him to 120
months’ imprisonment and 4 years’ supervised release. On appeal, appellant asserts that his
sentence was procedurally and substantively unreasonable, and, therefore, that his sentence
should be vacated and the matter remanded to the district court for resentencing. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

        We review sentences for reasonableness. See United States v. Cavera, 

, 187
(2d Cir. 2008). This standard applies “both to ‘the sentence itself’ and to ‘the procedure
employed in arriving at the sentence.’” United States v. Verkhoglyad, 

, 127 (2d Cir.
2006) (quoting United States v. Fernandez, 

, 26 (2d Cir. 2006)). When reviewing a
sentence, we “must first ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence - including an
explanation for any deviation from the Guidelines range.” Gall v. United States, 

, 51
(2007). Second, we conduct a substantive review by evaluating “the length of the sentence
imposed in light of the factors enumerated under 18 U.S.C. § 3553(a).” United States v.
Villafuerte, 

, 206 (2d Cir. 2007).

        Here, we conclude that the district court’s sentence was both procedurally and
substantively reasonable. Simmons argues that by calculating a higher adjusted offense level
than the one provided by the government in the plea agreement, the district court “breached” the
agreement. However, it is well-settled that “plea agreements are contractual in nature” and “are
construed according to contract law principles.” United States v. Pollack, 

, 334-35
(2d Cir. 1996) (internal quotation marks omitted). The district court was not a party to the
contract and, therefore, could not have breached the agreement.

         Moreover, both the plea agreement and the district court warned Simmons many times
that the court was not bound by the government’s calculation of the adjusted offense level and
that it could be much higher than the “estimate” in the plea agreement. Before accepting his
guilty plea, the district court explicitly told Simmons that he could be sentenced to up to 40
years’ imprisonment. Simmons decided to plead guilty despite these warnings. Thus, Simmons
could not have developed a “reasonable understanding and expectation” that he would be
sentenced according to the calculations in the plea agreement.

        Simmons also argues that the district court failed to recognize that it had discretion to
consider the crack/powder cocaine sentencing disparity in determining his sentence. See United
States v. Regalado, 

, 148 (2d Cir. 2008). Review of the transcript, however, reveals
that the district court was fully aware that it could depart from the Guidelines, but decided that a

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reduction was not warranted in Simmons’s case because of his extensive criminal history. We
find no error in the district court’s analysis.

        Finally, Simmons argues that the district court “could have and should have” taken into
account his “long-term addiction to drugs.” However, the district court does not abuse its
discretion simply because it “d[oes] not expressly parse or address every argument relating to
[the § 3553(a)] factors.” 

. “The weight to be afforded any given
argument made pursuant to one of the § 3553(a) factors is a matter firmly committed to the
discretion of the sentencing judge and is beyond [appellate] review, as long as the sentence
ultimately imposed is reasonable in light of all of the circumstances presented.” 

        Here, the district court sentenced appellant to the bottom of the correctly-calculated
Guidelines range. Although a sentence within the applicable Guidelines range is not
presumptively reasonable, “in the overwhelming majority of cases, a Guidelines sentence will
fall comfortably within the broad range of sentences that would be reasonable in the particular
circumstances.” 

With the appellant’s criminal history, including 13 convictions and 11
other arrests, that is certainly the case here.

       Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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