United States v. Damarious Simmons

168 F. App'x 124

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 1, 2006
• Docket: 03-3119
• Status: Unpublished

Opinion

PER CURIAM.

Damarius Asim Simmons (Simmons) pled guilty to conspiring to distribute, ■within 1,000 feet of a protected location, crack cocaine, a mixture containing cocaine, and a mixture containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1)— (b)(1), 846, and 860. Pursuant to the United States Sentencing Guidelines (Guidelines), which were mandatory at the time of sentencing, the district court 2 sentenced Simmons to 860 months’ imprisonment, the bottom of the calculated sentencing range of 360 months’ to life imprisonment. On appeal, we affirmed Simmons’s convictions and sentence. United States v. Simmons, 100 Fed.Appx. 600 (8th Cir.2004), vacated, 543 U.S. 1109, 125 S.Ct. 1018, 160 L.Ed.2d 1039 (2005). Simmons then filed a petition for a writ of certiorari in the United States Supreme Court, which the Court granted on January 24, 2005. The Court vacated our judgment and remanded the case to us for further consideration in light of the Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Simmons v. United States, 543 U.S. 1109, 125 S.Ct. 1018, 160 L.Ed.2d 1039 (2005).

Because Simmons did not raise any Sixth Amendment issue or object to the application of mandatory Guidelines during sentencing, we review his sentence for plain error. See United States v. Pirani, 406 F.3d 543, 548-49 (8th Cir.) (en banc), cert. denied, — U.S.-, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005).

While the district court plainly erred in sentencing Simmons under a mandatory Guidelines scheme, we conclude the error was not prejudicial because the record does not establish a reasonable probability Simmons would have received a more favorable sentence under an advisory Guidelines scheme. See id. at 550-53. Although the district court sentenced Simmons at the bottom of the calculated sentencing range, we have repeatedly recognized “[a] sentence at the bottom of the Guideline range ‘is insufficient, without more, to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error.’ ” United States v. Barth, 424 F.3d 752, 765 (8th Cir.2005) (quoting Pirani, 406 F.3d at 553). See, e.g., United States v. Martinez-Noriega, 418 F.3d 809, 814 (8th Cir.2005). Furthermore, the record suggests the district court would not have imposed a lesser sentence. The district court denied a downward departure for overstated criminal history, and noted there was “a very high likelihood of recidivism,” Simmons had “shown violent tendencies in his criminal history,” and other courts’ efforts to show leniency to Simmons had “not deterred [him] from his criminal conduct.” Because the district court’s statements do not support a finding of prejudice, we conclude Simmons has not demonstrated plain error warranting relief.

We also find the sentence is not unreasonable. See Booker, 543 U.S. at 261, 125 S.Ct. at 765-66 (appellate courts now review sentences for unreasonableness; 18 U.S.C. § 3553(a) sets forth factors that guide sentencing and in turn will guide appellate courts in determining whether a sentence is unreasonable).

Therefore, we reaffirm Simmons’s convictions and sentence.

2 . The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa.