US v. Arthur Simmons, No. 09-4534 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4534 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ARTHUR JERMAIN SIMMONS, a/k/a Melvin Davis, a/k/a Arthur Germain Simmons, a/k/a Arthur Germaine Simmons, a/k/a Arther Simmons, a/k/a Arthur German Simmons, a/k/a Arthur Jermaine Simmons, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:08-cr-00688-PMD-1) Submitted: February 7, 2011 Decided: March 17, 2011 Before NIEMEYER, MOTZ, and KING, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Stephanie A. Gallagher, LEVIN & GALLAGHER LLC, Baltimore, Maryland, for Appellant. William N. Nettles, United States Attorney, Sean Kittrell, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Arthur robbery (Count Jermain 2), in Simmons violation pled of guilty 18 to U.S.C. armed bank § 2113(a), (d) (2006), using and carrying a firearm during and in relation to a crime of violence (Count 3), in violation of 18 U.S.C. § 924(c) (2006), and possession of a firearm and ammunition by a felon (Count 4), in violation of 18 U.S.C. § 922(g)(1) (2006). district court sentenced Simmons as a career The offender to concurrent terms of 202 months and 120 months on Counts 2 and 4, respectively, and a consecutive 60-month term on Count 3, totaling 262 months imprisonment. On appeal, counsel contends that the district court erred in finding that Simmons s convictions under South Carolina s blue light statute were crimes of violence for career offender purposes. Counsel also asserts that the district court erred in alternatively finding that Simmons is a de facto career offender. In light of this court s decision in United States v. Rivers, 595 F.3d 558 (4th Cir. 2010), the Government concedes that Simmons s violence. South However, Carolina the convictions Government argues are that not the crimes of district court did not plainly err in alternatively finding that Simmons is a de facto career offender. The Government also contends that the the facts surrounding 2 convictions, Simmons s recidivism, and his thirty-three criminal history points support an upward departure. Appellate review of a district court s imposition of a sentence, whether inside, just outside, or significantly outside the Guidelines range, is for abuse of discretion. v. United States, 552 U.S. 38, 41 (2007). consideration of both reasonableness of reasonableness evaluates a the defendant s sentence. This review requires procedural sentence. Id. the method Gall and at substantive 51. used Procedural to determine a United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). This court must assess whether the district court properly calculated the advisory Guidelines range, considered analyzed any the 18 arguments U.S.C. § 3553(a) presented by (2006) the sufficiently explained the selected sentence. factors, parties, and Gall, 552 U.S. at 49-50; see also United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ( [A]n individualized explanation must accompany every sentence. ); United States v. Carter, 564 F.3d 325, 330 (4th Cir. totality of 2009). the Substantive circumstances to reasonableness see whether examines the the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). Mendoza, 597 F.3d at 216 3 Mendoza- Because counsel preserved her procedural challenge to the sentence career by objecting offender, discretion. this to Simmons s court s review classification is for See Lynn, 592 F.3d at 581, 583-84. an as abuse a of If the district court procedurally erred and, thus, abused its discretion, this court must reverse unless the error is harmless. Id. at 581, 585. In Rivers, decided after the district court imposed sentence upon circumstance Simmons, is a this violation statute a violent felony. court of determined South that Carolina s 595 F.3d at 560. under blue no light Since Simmons s South Carolina convictions can no longer be considered predicate offenses under the career offender guideline provision, and he has no other qualifying convictions, Simmons is no longer a career offender under U.S. Sentencing Guidelines Manual (USSG) § 4B1.1 (2008). Therefore, the district court procedurally erred in finding that § 4B1.1 applied. The Government argues, however, that there is no error because the district court alternatively found that Simmons is a de facto career offender. effect conflicts with The district court s finding to this circuit precedent. For an upward departure to de facto career offender status to be permissible, the defendant has to have been convicted of two prior crimes each of which constitutes [a 4 career offender predicate offense.] 2009) United States v. Myers, 589 F.3d 117, 126 (4th Cir. (alterations in original) (quoting United States v. Harrison, 58 F.3d 115, 118 (4th Cir. 1995)), cert. denied, 130 S. Ct. 3306 (2010). Indeed, [u]nder [the] de facto career offender district method, the court must conclude that the defendant s underlying past criminal conduct demonstrates that the defendant would be sentenced as a career offender but for the fact that one or both of the prior predicate convictions may not be counted. Harrison, 58 F.3d at 118 (internal quotation marks omitted). Simmons cannot be a de facto career offender because, after Rivers, none of his prior convictions had the potential to be counted as predicate offenses under § 4B1.1. See id. ( At a minimum, the defendant has to have been convicted of two prior crimes each of which constitutes either a crime of violence or a controlled substance offense. ). Although there may be alternative bases in the record to support an upward departure or variance, the district court did not adopt these bases as its rationale for the sentence considered by this court. imposed, and they may not be See Carter, 564 F.3d at 329-30 ( [A]n appellate court may not guess at the district court s rationale, searching the record for statements by the Government or defense counsel or for any other clues that might explain a sentence. ). 5 Accordingly, we vacate the resentencing in light of our holding. no view as to the appropriate sentence and remand for We, of course, indicate sentence to be imposed upon Simmons, leaving that determination, in the first instance, to the district court. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. VACATED AND REMANDED 6

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