United States v. Tyre Simmons

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 18, 2020
• Docket: 19-50088
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50088

Plaintiff-Appellee, D.C. No. 2:18-cr-00209-JAK-2 v.

TYRE JORDAN SIMMONS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Submitted August 11, 2020** Pasadena, California

Before: WARDLAW and VANDYKE, Circuit Judges, and HILLMAN,*** District Judge.

Tyre Jordan Simmons appeals his conviction by guilty plea and sentence on

charges arising from an incident in which he robbed an undercover Secret Service

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. officer at gunpoint. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291. We affirm.

1. The district court adequately explained why Simmons received a

longer sentence than his co-conspirator, Henderson. The district court noted that it

was “mindful of the disparity issue,” and it can be reasonably inferred from the

record that Simmons received a longer sentence because he had a more serious

criminal history than Henderson and because he was the one who carried out the

robbery and pointed a loaded gun at the agent’s head. See United States v. Carty,

520 F.3d 984, 992 (9th Cir. 2008) (en banc) (“[A]dequate explanation in some

cases may . . . be inferred from the PSR or the record as a whole.”).

We also conclude that Simmons’s Guidelines sentence was not substantively

unreasonable. Gall v. United States, 552 U.S. 38, 51 (2007). Simmons focuses on

the disparity between the length of his sentence and that of Henderson. But

because Simmons and Henderson played significantly different roles in the crime,

Henderson’s sentence is not an appropriate point of comparison. United States v.

Carter, 560 F.3d 1107, 1121 (9th Cir. 2009). In any event, “a correctly calculated

Guidelines sentence will normally not be found unreasonable on appeal,” Carty,

520 F.3d at 988, and we conclude that it was within the district court’s discretion to

impose the Guidelines sentence at issue here.

2. Simmons argues that neither his conviction for postal robbery nor his

2 conviction for assault on a federal officer qualifies as the predicate “crime of

violence” necessary to uphold his conviction under 18 U.S.C. § 924(c). To qualify

as a crime of violence, the elements of the offense must meet a force requirement

(use, attempted use, or threatened use of “force capable of causing physical pain or

injury to another person”), Johnson v. United States, 559 U.S. 133, 140 (2010), and

an intent requirement (“a higher degree of intent than negligent or merely

accidental conduct”), Leocal v. Ashcroft, 543 U.S. 1, 9 (2004).

Simmons was convicted of assault on a federal officer while using a deadly

or dangerous weapon in violation of 18 U.S.C. § 111(b). We previously held in

United States v. Juvenile Female that this offense is categorically a crime of

violence. 566 F.3d 943, 947 (9th Cir. 2009). Juvenile Female controls here.1

Simmons’s conviction under 18 U.S.C. § 2114(a) for postal robbery while

putting a person’s life in jeopardy by the use of a dangerous weapon also qualifies

as a crime of violence. Because the term “robs” in § 2114 refers to common-law

robbery, United States v. Hasan, 983 F.2d 150, 151 (9th Cir. 1992) (per curiam),

the offense satisfies the force requirement. Stokeling v. United States, 139 S. Ct.

1 To the extent Simmons argues that Juvenile Female insufficiently addressed the intent prong, we have explained that a § 111 conviction requires a defendant to have acted with “the evil purpose or mental culpability which was the essential mental component of common-law assault and battery.” United States v. Acosta-Sierra, 690 F.3d 1111, 1123 (9th Cir. 2012). This is sufficient to satisfy the intent requirement.

3 544, 555 (2019) (holding that common-law robbery categorically satisfies

Johnson’s force requirement). We reject Simmons’s argument that the crime fails

to satisfy the intent requirement under Leocal. We have held that the conduct

required for bank robbery under § 2113 necessarily satisfies the intent prong,

United States v. Watson, 881 F.3d 782, 785 (9th Cir. 2018) (per curiam), and cases

interpreting the bank robbery and postal robbery statutes “have long been authority

for decisions in cases arising under the other,” because the required conduct for

these offenses is nearly identical. United States v. Hudson, 564 F.2d 1377, 1380

n.2 (9th Cir. 1977).

AFFIRMED.