USA v. Gloria Simmon

Filing

UNPUBLISHED OPINION FILED. [10-10407 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 11/29/2010 for Appellant Gloria Jean Simmons [10-10407]

USA v. Gloria Simmonase: 10-10407 C

Document: 00511287911 Page: 1 Date Filed: 11/08/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10407 S u m m a r y Calendar November 8, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v. G L O R I A JEAN SIMMONS, also known as Gloria Norris Simmons, D e fe n d a n t ­ A p p e lla n t .

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 5:09-CR-81-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* G lo r ia Jean Simmons appeals the 36-month sentence imposed following h e r guilty plea conviction for possession of stolen mail matter and aiding and a b e t t i n g . Simmons specifically argues for the first time on appeal that the d is t r ic t court erred procedurally by making an upward variance at sentencing b e c a u s e it failed to address her nonfrivolous arguments for imposing a lesser s e n te n c e and failed to give an adequate explanation for the variance. She

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-10407 Document: 00511287911 Page: 2 Date Filed: 11/08/2010 No. 10-10407 c o n t e n d s that the district court's mere reference to the 18 U.S.C. § 3553(a) fa c t o r s was insufficient. S im m o n s did not raise these specific procedural objections in the district c o u r t; therefore, review is for plain error. See United States v.

M o n d r a g o n -S a n tia g o , 564 F.3d 357, 361-62 (5th Cir.), cert. denied, 130 S. Ct. 192 (2 0 0 9 ). The record reflects that the district court heard the arguments of defense c o u n s e l that Simmons should receive a guidelines range sentence in light of her d r u g rehabilitation efforts and her financial difficulties. The district court's c o m m e n ts about Simmons's recidivism and the fact that it varied upward c o n s t it u t e d an implicit rejection of her arguments for a more lenient sentence. S e e Rita v. United States, 551 U.S. 338, 359 (2007). The district court expressly c o n s id e r e d the relevant § 3553(a) policy factors and gave adequate reasons for t h e imposition of the 36-month sentence. See United States v. Herrera-Garduno, 5 1 9 F.3d 526, 531-32 (5th Cir. 2008). The district court's procedural ruling was n o t erroneous and did not affect Simmons's substantial rights. Puckett v. United S ta te s , 129 S. Ct. 1423, 1429 (2009). S im m o n s argues that her sentence was substantively unreasonable b e c a u s e the district court did not take into account her drug rehabilitation or m o t iv e for stealing, it overemphasized her single prior conviction, and it failed t o consider the relatively minor nature of her offense. She contends that the e x t e n t of the variance was not justified and was substantively unreasonable. I n reviewing a non-guidelines sentence for substantive unreasonableness, t h is court will consider the totality of the circumstances, including the extent of a n y variance from the guidelines range. United States v. Brantley, 537 F.3d 347, 3 4 9 (5th Cir. 2008). This court also reviews whether the § 3553(a) factors s u p p o r t the sentence and gives deference to the district court's determination t h a t the § 3553(a) factors justify the variance. Id. T h e district court's explanation at sentencing and its written statement o f reasons reflect that it based its sentencing determination on the § 3553(a) 2

Case: 10-10407 Document: 00511287911 Page: 3 Date Filed: 11/08/2010 No. 10-10407 fa c t o r s , including the nature and circumstances of the offense of conviction, S im m o n s 's history and characteristics, the need to provide just punishment, and t h e need to deter Simmons from further criminal conduct. Simmons's recidivism w a s an important and relevant factor entitled to significant weight. See United S ta te s v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). The totality of the

c ir c u m s t a n c e s surrounding Simmons's offense justified the extent of the v a r ia n ce . G iv e n the significant deference that is owed to a district court's c o n s id e r a t io n of the § 3553(a) factors and the district court's reasons for its s e n te n c in g decision, Simmons has not shown that her sentence was s u b s t a n t iv e ly unreasonable. See Brantley, 537 F.3d at 349. T h e sentence is AFFIRMED.

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