USA v. Tommy Simmons


UNPUBLISHED OPINION FILED. [10-60064 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 12/10/2010 for Appellant Tommy Simmons [10-60064]

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USA v. Tommy Simmonse: 10-60064 Cas Document: 00511299493 Page: 1 Date Filed: 11/19/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-60064 S u m m a r y Calendar November 19, 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. T O M M Y 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 Mississippi U S D C No. 4:08-CR-66-1 B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Tommy Simmons appeals the 60-month sentence im p o s e d following his guilty plea to possessing marijuana with intent to d is t r ib u t e and to being a felon in possession of a firearm. The sentencing court c o n c lu d e d that an above-guideline sentence was appropriate under 18 U.S.C. 3 5 5 3 (a ) (1) & (2)(A), (B), (C) and it varied upward from the advisory sentencing g u id e lin e s range. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 10-60064 Document: 00511299493 Page: 2 Date Filed: 11/19/2010 No. 10-60064 S im m o n s argues that his sentence is unreasonable because the sentencing c o u r t abused its discretion by failing to give adequate weight to his attempts to c o o p e r a t e with authorities, and the court plainly erred by considering his prior a r r e s t record and a vacated conviction in connection with its decision to impose a n upward variance. We agree that Simmons preserved his argument c o n c e r n in g mitigating evidence; however, his challenge to the district court's c o n s id e r a t io n of his prior record is subject to plain error review because he did n o t raise it at sentencing. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 7 6 4 (5th Cir. 2008); United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). To show plain error, Simmons must show an error that is clear or obvious and t h a t affects his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1 4 2 9 (2009). If he makes such a showing, we have the discretion to correct the e r r o r but only if it seriously affects the fairness, integrity, or public reputation o f the judicial proceedings. See id. It is clear from the record that the sentencing court considered Simmons's m it ig a t in g evidence, and he has not shown that the court failed to give this e v id e n c e proper weight. United States v. Campos-Maldonado, 531 F.3d 337, 339 (5 t h Cir. 2008). The sentencing court did not plainly err by considering S im m o n s 's prior arrests in fashioning a non-Guidelines sentence because the a r r e s t s do not "stand alone," but are corroborated by his extensive history of r e c i d iv is m and unresolved pending charges. See United States v. Lopez- V e la s q u e z , 526 F.3d 804, 806-07 (5th Cir. 2008). The district court mentioned S im m o n s 's vacated conviction in passing during a lengthy discussion of the r e a s o n s why his extensive criminal history warranted an upward variance. It is not clear that the court based the upward variance, even in part, on the v a c a t e d conviction; however, to the extent that it did so, consideration of the v a c a t e d conviction was a clear and obvious error. See United States v. Reasor, 4 1 8 F.3d 466, 479 (5th Cir. 2005) (remanding for resentencing because grouping r u le s potentially caused vacated convictions to affect defendant's sentence). 2 Case: 10-60064 Document: 00511299493 Page: 3 Date Filed: 11/19/2010 No. 10-60064 A s s u m in g for purposes of argument that the sentencing court considered t h e vacated conviction, Simmons cannot demonstrate that the error affected his s u b s t a n t ia l rights. See United States v. Davis, 602 F.3d 643, 647-48 & n.6 (5th C ir . 2010). In support of its decision to impose a non-guidelines sentence, the s e n te n c in g court engaged in a "lengthy and weighted discussion" of Simmons's e x t e n s iv e criminal career to support its determination that an upward variance w a s warranted under 18 U.S.C. 3553(a). See United States v. Williams, _ _ _ F.3d ___, No. 09-30528, 2010 WL 3585424, at *10 (5th Cir. Sept. 16, 2010). Even assuming that the district court impermissibly considered the vacated s e n te n c e , Simmons cannot show that the error affected his substantial rights, b e c a u s e the court based the variance on "other significant . . . permissible fa c t o r s ." See id. at *8-10. AFFIRMED. 3

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