US v. Ike Simmons

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00007-BR-1 Copies to all parties and the district court. [999588771]. [14-4838]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4838

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IKE DAVID SIMMONS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:14-cr-00007-BR-1)

Submitted:

May 11, 2015

Decided:

May 22, 2015

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Seth M. Wood, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CUIRAM:
Ike David Simmons was sentenced to 600 months’ imprisonment
after

pleading

violation

of

guilty
18

to

U.S.C.

manufacturing
§ 2251(a),

Simmons raises only one issue:

(d)

child

pornography,

(2012).

On

in

appeal,

whether the district court erred

in failing to strike or redact Paragraph 29 of his Presentence
Investigation Report (“PSR”).
Paragraph 29

of

the

PSR

We dismiss the appeal.
contains

information

Simmons’ history of psychosexual treatment.

concerning

Simmons objected to

the inclusion of this paragraph on the basis that it could be
used in a future civil commitment certification hearing under
the Adam Walsh Act, 18 U.S.C. § 4248 (2012).

The district court

overruled Simmons’ objection, noting that the information in the
paragraph “had no impact on the advisory guideline range.”
On appeal, Simmons argues that he has a right to privacy in
the information, and that the Government’s interest in including
the information fails to overcome this right.

The Government

contends that we should dismiss the appeal as unripe.
Ripeness is a threshold question of justiciability, arising
out of the “case or controversy” language found in Article III.
Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 269
(4th Cir. 2013).

“The issue of ripeness entails an analysis

considering the fitness of the issues before the court, as well

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as the hardship that the parties will experience if the court
withholds consideration of the dispute.”

Id. at 270.

Ripeness

is required to prevent the courts “from becoming entangled in
‘abstract disagreements.’”

Id. at 270 (quoting Abbott Labs. v.

Gardner, 387 U.S. 136, 148 (1967)).
rests

upon

contingent

future

A claim is unripe “‘if it

events

that

may

anticipated, or indeed may not occur at all.’”

not

occur

as

Scoggins, 718

F.3d at 270 (quoting Texas v. United States, 523 U.S. 296, 300
(1998)).
In United States v. Streich, 560 F.3d 926, 931 (9th Cir.
2009), the defendant also raised an objection to the inclusion
of

psychosexual

treatment

information

could

be

proceeding.

The

Ninth

in

used

the
in

Circuit

PSR
a

on

the

future

noted

basis

civil

that

that

the

commitment

Streich

did

not

challenge the use of the information at sentencing, nor did he
challenge the other ways that the Bureau of Prisons might use
the information.
commitment

as

Id.

“the

The court classified the fear of civil

classic

example

of

a

‘contingent

future

event’ that ‘may not happen at all’” and dismissed the appeal as
unripe.

Id. at 932.

Here, Simmons does not challenge the district court’s use
of the information at sentencing.

Simmons’ concern about the

inclusion

the

of

Paragraph

29

regards

3

potential

use

of

the

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information at a possible future civil commitment hearing.
Simmons

concedes,

any

approximately 40 years.

such

hearing

would

not

occur

As
for

Moreover, Simmons will only face civil

commitment if the Government decides to pursue civil commitment
and meets its burden to prove by clear and convicting evidence
that Simmons is sexually dangerous.

18 U.S.C. § 4248(d) (2012);

cf. United States v. Legrano, 659 F.2d 17, 18 (4th Cir. 1981)
(rejecting
refusing

defendant’s
to

strike

argument
information

that

district

from

the

court
PSR

erred

that

in

might

jeopardize defendant’s chances in a future parole proceeding,
noting that there were administrative avenues to challenge the
PSR’s

contents).

“contingent

future

Thus,
event”

Simmons’
that

claim

falls

is

the

type

of

within

the

ripeness

doctrine.
Accordingly, we dismiss the appeal.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.

DISMISSED

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