Case: 10-40670 Document: 00511559972 Page: 1 Date Filed: 08/03/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 3, 2011
No. 10-40670 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HENRY L. SIMMONS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before KING, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:
Henry L. Simmons appeals from his sentence after being found guilty by
a jury on thirteen counts of using a cellular telephone to make bomb threats, in
violation of 18 U.S.C. § 844(e). He argues that the district court erroneously
refused to group all thirteen counts of the indictment into a single group for
sentencing purposes pursuant to U.S.S.G. § 3D1.2. We AFFIRM.
I. Background
From 2004 to 2009 Henry L. Simmons was involved in a relationship with
Patricia Randall. After the relationship ended, Simmons began making
numerous harassing telephone calls to Randall. He made over 1500 calls to
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either Randall’s cell phone or her grandmother’s home during a two month
period from August to October 1, 2009. He also made over 800 calls to Randall’s
place of employment at the Corpus Christi Army Depot (“CCAD”) on the Naval
Air Station in Corpus Christi, Texas. The calls became so frequent that
personnel at CCAD were forced to shut down some of the phone lines, causing
great disruption at the facility.
When Simmons’s requests to reach Randall at CCAD were refused by the
personnel who answered the phone, his calls to the facility became violent in
nature. From September 30, 2009, to October 1, 2009, he made at least thirteen
bomb threats that resulted in twelve evacuations, affecting thousands of
employees who were evacuated while security searched for bombs. When Gina
Vela answered the phone on the morning of September 30 in the L3 Vertex
building, Simmons stated, “Bitch, there’s a bomb in the building, bitch, and it’s
about to blow.” Seconds later, Stephanie Garcia answered the phone, and
Simmons said, “Boom bitch, it’s gonna blow.” Later that morning, Simmons
again called CCAD and said to Garcia, “There’s a bomb in the building.” On that
same day, Simmons spoke to Vincent Jones, a security specialist, and stated,
“There is a bomb in a satchel in the L3 trailer.”
On October 1, 2009, Simmons made nine more bomb threats to different
people in different buildings at CCAD. Four of the calls were made to Jose
Sanchez in Hangar 44. Simmons separately stated to Sanchez, “This is a bomb
threat,” “This is a bomb threat courtesy of Patrice Randall,” “A bomb will go off
at 12:06,” and “Mr. Sanchez, a bomb will go off in 15 minutes.” Simmons also
called Velma Vela in Field Control of Building 8 and said, “There is a bomb in
the building, Velma.” Simmons further threatened Joel Galvan in the T-
Seminar subassembly shop of Building 8, stating “There is a bomb in the
building.” He stated to Ralph Oesterich, “There is a bomb on the premises and
it will detonate in 25 minutes.” John Magill, who worked in the L3 Vertex, also
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received a call from Simmons and was told, “There’s a bomb on the premises.
You have 20 minutes until it detonates.” Finally, Simmons told Orville Lankford
in the CCAD security command center, “There’s a bomb in your area and it’s
about to go off.”
Ultimately, the Government charged Simmons with thirteen counts of
using an instrument of interstate commerce, that is, a cellular telephone, to
willfully threaten to unlawfully damage or destroy a building by means of an
explosive, in violation of 18 U.S.C. § 844(e). Each of the above telephone calls
was charged as a separate offense, and each count in the indictment identified
the recipient of the call. The jury found Simmons guilty of all counts.
For sentencing, the presentence report applied the 2009 version of the
Sentencing Guidelines and determined Simmons’s total offense level to be 25,
which included a five-level multiple count adjustment pursuant to U.S.S.G.
§ 3D1.4. This yielded an advisory guideline range of 84 to 105 months.
Simmons objected that under § 3D1.2 all the counts should be grouped together
and treated as a single offense for sentencing purposes. He reasoned that the
threats were against CCAD as a whole rather than against separate individuals,
and that Randall was the primary intended victim.
The district court overruled Simmons’s objection, determining that each
of the nine people who answered the calls and received the bomb threats was a
victim. The court noted that Simmons could not selectively bomb Randall and
that he had identified the call recipients by name. The court further believed
that everyone on the base who was evacuated could be a victim, and it noted that
the facility had lost 2500 man hours of operation due to the evacuation of the
various buildings. The district court adopted the presentence report, but it also
decided that an upward departure was warranted, in part because Simmons’s
violent criminal history was under-represented by the guidelines. After
considering the factors of 18 U.S.C. § 3553(a), the district court sentenced
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Simmons to concurrent terms of 120 months in prison, which was the statutory
maximum, and three years of supervised release. It also ordered Simmons to
pay restitution of $201,000 to CCAD. Simmons now appeals, challenging only
the district court’s refusal to group all counts when calculating his advisory
guideline range.
II. Standard of review
We ordinarily review sentences for procedural error and for substantive
reasonableness, applying an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). Because Simmons’s only basis for appeal is the alleged grouping
error in the calculation of the guideline range, we need consider only that
procedural aspect of the sentence. We review “the district court’s application of
the Sentencing Guidelines grouping rule de novo.” United States v. Lopez-
Urbina, 434 F.3d 750, 762 (5th Cir. 2005) (internal quotation marks and citation
omitted). We will uphold the sentence “if it was imposed as the result of a
correct application of the guidelines to factual findings which are not clearly
erroneous.” Id. (internal quotation marks and citation omitted).
III. Discussion
On appeal, Simmons persists in arguing that all of his counts of conviction
should have been grouped together for sentencing purposes. The Sentencing
Guidelines provide that “[a]ll counts involving substantially the same harm shall
be grouped together into a single Group.” § 3D1.2. “In essence, counts that are
grouped together are treated as constituting a single offense for purposes of the
guidelines.” U.S. SENTENCING GUIDELINES MANUAL, ch.3, pt. D, introductory
cmt. (2009). This may occur when, inter alia, “counts involve the same victim
and two or more acts or transactions connected by a common criminal objective
or constituting part of a common scheme or plan.” § 3D1.2(b). However, the
term “victim” does not include “indirect or secondary victims. Generally, there
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will be one person who is directly and most seriously affected by the offense and
is therefore identifiable as the victim.” Id., cmt. n.2.
Simmons argues that the CCAD employees who answered the phone were
merely indirect or secondary victims of the bomb threats and so cannot be
considered separate victims for purposes of § 3D1.2. He maintains that the only
intended victim here was Randall, and that the threats were made to CCAD in
order to bring grief upon her. He posits that if Randall had been employed
somewhere other than CCAD, the other employer would have been the vehicle
by which threats were made. We are unpersuaded.
Simmons relies primarily on United States v. Norman, 951 F.2d 1182 (10th
Cir. 1991). In that case, the defendant called an airline on two separate
occasions to report falsely that a passenger who was romantically linked to his
ex-wife was carrying a handgun and explosives. Id. at 1183. The passenger was
removed from one of the flights and arrested. Id. The Tenth Circuit held that
the two counts against the defendant for the two calls should be grouped
together because they involved a common scheme to bring grief to a single
victim, the falsely accused passenger. Id. at 1185. The court held that the
different flight crews and passengers affected by the calls were merely secondary
victims. Id. It reasoned that the defendant did not target the airline and that
had the passenger chosen a different air carrier, that airline likely would have
been the means by which the defendant inflicted harm upon the victim. Id.
Norman is inapposite. The defendant there was targeting a single
individual by his actions (the ex-wife’s boyfriend), whereas Simmons acted in a
manner consistent with purposefully harming many different people. Unlike the
defendant in Norman, Simmons directly threatened harm to the individuals who
answered his calls, going so far as to refer to them by name. As a general
matter, threatening communications directed at different targets will not be
grouped. See § 2A6.1, cmt. n.3 (“[M]ultiple counts involving making threatening
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or harassing communication to the same victim are grouped together under
§ 3D1.2 (Groups of Closely Related Counts) [but] [m]ultiple counts involving
different victims are not to be grouped under § 3D1.2.”).
In other cases involving direct threats to different people or buildings,
courts have refused to group multiple counts. For example, in United States v.
Nedd, 262 F.3d 85 (1st Cir. 2001), the First Circuit held that multiple counts
covering four separate threatening telephone calls to a family’s answering
machine did not have to be grouped where all of the calls threatened the father,
while some also threatened the wife and daughter. Id. at 92–93. The defendant
argued that the father was the primary victim and the wife and daughter were
secondary or indirect victims of his threatening behavior, but the court held that
each family member was a primary victim because of the direct threats and
independent traumatic effects on the three individuals. Id. at 92.
Similarly, in United States v. Parker, 551 F.3d 1167 (10th Cir. 2008), the
Tenth Circuit held that the district court was not required to group two counts
of falsely conveying information about a bomb threat, in violation of § 844(e),
where the defendant made separate 911 calls threatening to blow up an
unspecified “school,” “schools,” and “city hall.” Id. at 1174 & n.4. The court
reasoned that “there were multiple intended targets of the threatening 911
calls,” and it specifically noted that the calls resulted in the evacuation and
closing of several schools, the dispatch of police to various locations, and the
search for bombs by security personnel. Id.
The instant case falls along a path consistent with Nedd and Parker.
Simmons may have initiated the calls to CCAD because of Randall’s employment
there, but that does not obviate the fact that Simmons threatened several
different individuals when his attempts to reach her were blocked. As in Nedd,
Simmons directly threatened the individual call recipients, some expressly by
name. This demonstrates that he meant to impart terror on those individuals,
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and therefore those threats constituted separate harms that did not require
grouping. Cf. § 3D1.2, cmt. n.4 (stating that “separate instances of fear and
harm,” such as robbery of the same individual on different occasions, are not one,
composite harm and need not be grouped).
Simmons also called different buildings and threatened different locations
at CCAD. Like Parker, Simmons’s conduct resulted in the evacuation of
thousands of people from multiple buildings, the disruption of the ordinary
course of business at several locations, and the mobilization of security forces to
respond to the threats. This shows multiple intended targets of the threatening
calls. See Parker, 551 F.3d at 1174 & n.4; see also United States v. Miller, 340
F. App’x 335, 338 (7th Cir. 2009) (convictions for one count of threatening to kill
a federal judge and one count of threatening to blow up the courthouse did not
have to be grouped, despite contention that defendant identified only the judge
as the intended victim, because threatening letter expressed desire to get
revenge on “you guys” at the courthouse, thereby threatening more than one
person). We perceive no error, let alone clear error, in the district court’s
conclusion that there were multiple victims of Simmons’s offenses. The court
therefore correctly applied the guidelines by refusing to group all counts of the
indictment into a single group.
IV. Conclusion
For the foregoing reasons, the district court’s judgment is AFFIRMED.
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