United States v. Simmons

630 F. App'x 365
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 29, 2015
DocketNo. 14-2306
StatusPublished
Cited by2 cases

This text of 630 F. App'x 365 (United States v. Simmons) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Simmons, 630 F. App'x 365 (6th Cir. 2015).

Opinion

CLAY, Circuit Judge.

Following his guilty plea to possession of a firearm by a person convicted of a felony in violation of 18 U.S.C. § 922(g)(1), Defendant Todd Simmons (“Defendant”) challenges (1) the district court’s application of the four-level sentencing enhancement pursuant to United States Sentencing Guideline § 2K2.1(b)(6)(B) and (2) the substantive and procedural reasonableness of his 96-month sentence in light of his request for a variance based on his alleged mental and physical health issues. For the following reasons, we AFFIRM the sentence imposed by the court.

BACKGROUND

On February 14, 2014, officers with the Kent Area Narcotics Enforcement Team (“KA.NET”) executed a state search warrant authorizing the seizure of any drugs, drug paraphernalia, or firearms located at the Grand Rapids, Michigan residence shared by Defendant and his fiancée, Connie Reid. After Defendant and Reid surrendered without incident, officers discovered: (1) a black case containing a Colt 5.56 x 45mm, M16 A2, automatic rifle (“rifle”) located in the upstairs bedroom on the west side of the residence; (2) five rifle magazines loaded with 5.56 and .223 caliber ammunition in the west bedroom; (3) three boxes of an unspecified type of ammunition located in the upstairs bedroom on the east side of the residence; (4) a rifle magazine in the east bedroom; (5) four jars of marijuana in the east bedroom; (6) two “containers” of marijuana in the east bedroom; (7) $156.00 in cash in the east bedroom; (8) a syringe containing a brown liquid located in the kitchen; and (9) a loaded Taurus .40 caliber semiautomatic pistol (“pistol”) hidden in a concealed [367]*367space within the stairwell leading to the basement. When police searched Defendant, they found $2,402.00 in cash on his person.

At the plea hearing, Defendant stated the following in support of his guilty plea. Defendant purchased both the rifle and the pistol “from somebody off the streets.” (R. 53, Plea Hr’g Tr., PagelD # 203-04). Normally, both firearms were kept in a bag, along with a tactical vest, in Defendant’s bedroom closet. Defendant did not keep the firearms loaded, but stored ammunition in the same location. However, on the day KANET officers executed the search warrant, Defendant removed the pistol from its usual location and went to the basement with the intention of committing suicide. After reconsidering, Defendant “stuck the gun in the wall” and surrendered. {Id. at 202).

On February 14, 2014, the government filed a criminal complaint charging Defendant with being a convicted felon in possession of one or more firearms in violation of 18 U.S.C. § 922(g)(1). Approximately two months later, the government filed a superseding felony information charging the same offense. Pursuant to a plea agreement, Defendant pleaded guilty before a magistrate judge. The magistrate judge issued a Report and Recommendation advising that Defendant’s guilty plea be accepted, and the district court accepted the plea of guilty.

The presentencing probation officer filed an initial presentence report (“Initial PSR”) on June 16,2014. Following Defendant’s objections to the Initial PSR, the probation officer filed a final presentence report (“Final PSR”) on July 31, 2014. In his objections, Defendant disputed the Initial PSR’s statement that KANET, through an unidentified criminal informant (“Cl”), had conducted eight controlled purchases of illicit substances from Defendant. The objected-to paragraph in the Initial PSR stated:

As a way of background, KANET began investigating [Defendant] after receiving information from a confidential informant (Cl) that [Defendant] was trafficking marijuana from his residence and in possession of firearms. The Cl reported he/she previously observed about pound of marijuana inside [Defendant’s] residence and also observed the defendant handling a fully automatic M16 rifle and two .40 caliber handguns. The Cl stated [Defendant] told him/her the M16 rifle was stolen from the 44th Street Armory. KANET subsequently conducted eight controlled buys of controlled substances from [Defendant] through the Cl.

(R. 30, Initial PSR, PagelD # 54) (emphasis added). In objecting to this paragraph, Defendant asserted:

KANET did not conduct eight controlled buys from [Defendant]. The Cl had eight controlled buys during the course of his work with KANET. Those eight unrelated buys were the basis of the Cl’s credibility in the search warrant which authorized the search of [Defendant’s] home. You have the buys as being with [Defendant].

(R. 32, Objections to PSR, PagelD # 73).

Defendant also objected to paragraph 38 of the Initial PSR, which described a four-level enhancement to Defendant’s base offense level pursuant to U.S.S.G. § 2K2.1(b)(6)(B). Paragraph 38 of both PSRs identified the felony associated with Defendant’s unlawful possession of the firearms as “possession with intent to distribute marijuana,” but neither cited a federal, state, or local statute underlying this drug-related crime. (R. 30, Initial PSR, PagelD # 57; R. 33, Final PSR, PagelD # 81). In his objections, however, the only issue Defendant identified regarding the [368]*368application of the enhancement was that his possession of the firearms was not “in connection with another felony offense” because the firearms were not in “close proximity” to the marijuana. (R. 32, Objections to PSR, PagelD # 73). In this vein, Defendant maintained that “[w]hile some ammunition was found in the same bedroom as the drugs, the firearms were not in the same bedroom.” (Id.).

The Final PSR, which was filed after Defendant made the aforementioned objections, omitted any reference to the Cl purchasing marijuana from Defendant as part of a controlled buy, but noted that the Cl had observed a half-pound of marijuana in Defendant’s residence. The Final PSR also explicitly stated that the Cl’s more general statement that Defendant was “trafficking marijuana from his residence” remained undisputed because Defendant “did not raise an objection to the[ ] [statement’s] factual accuracy.” (R. 33, Final PSR, PagelD # 78, 96).

Regarding Defendant’s mental and physical health, the Final PSR noted that Defendant reportedly attempted to commit suicide by jumping in front of a moving vehicle on an unspecified date in 2011. Following this incident, Defendant claimed, he was “in a coma for three months” and “formally diagnosed as bipolar and manic depressive.” (R. 33, Final PSR, PagelD #90). At a separate, unspecified point in time, Defendant was prescribed the medications Risperdal and Paxil “to manage his mental health issues.” (Id.). According to the Final PSR, Defendant believed “his mental health problems [we]re attributable to the beginning stages of Huntington’s disease^] ... a hereditary brain disorder that leads to severe physical and mental disabilities.” (Id.) (quotation marks omitted). However, although Defendant’s mother “purportedly suffered from [Huntington’s disease],” Defendant had not been tested for or diagnosed with that condition. (Id.).

On August 22, 2014, Defendant filed a motion to adjourn sentencing pending a neurological examination and genetic testing to ascertain whether he had symptoms of Huntington’s disease or possessed the gene underlying the disease.

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Bluebook (online)
630 F. App'x 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-simmons-ca6-2015.