US v. Ike Simmons


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 14-4838 Doc: 28 Filed: 05/22/2015 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4838 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. IKE DAVID SIMMONS, Defendant - Appellant.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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 14-4838 Doc: 28 Filed: 05/22/2015 Pg: 2 of 4 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 2 Appeal: 14-4838 Doc: 28 Filed: 05/22/2015 Pg: 3 of 4 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 Appeal: 14-4838 Doc: 28 Filed: 05/22/2015 Pg: 4 of 4 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 4

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