United States v. Simmons

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0349p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 06-6173
v.
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KOSSIE LAMON SIMMONS, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 05-20332—J. Daniel Breen, District Judge.
Argued: August 8, 2007
Decided and Filed: August 29, 2007
Before: KENNEDY and COOK, Circuit Judges; ALDRICH, District Judge.*
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COUNSEL
ARGUED: Craig V. Morton II, MORTON & GERMANY, Memphis, Tennessee, for Appellant.
Cam Towers Jones, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for
Appellee. ON BRIEF: Craig V. Morton II, MORTON & GERMANY, Memphis, Tennessee, for
Appellant. Cam Towers Jones, ASSISTANT UNITED STATES ATTORNEY, Memphis,
Tennessee, for Appellee.
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OPINION
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KENNEDY, Circuit Judge. Kossie Lamon Simmons (“defendant”) appeals his sentence
imposed after he pleaded guilty to health care fraud in violation of 18 U.S.C. § 1347. After granting
an eight-level departure requested by the government, calculating a guideline range of twenty-seven
to thirty-three months, and considering the 18 U.S.C. § 3553(a) factors, the district court imposed
a sentence of twenty-three months in prison as well as restitution. Mr. Simmons claims that his
sentence was unreasonable because the district court did not consider the disparity between his
sentence and that of his co-defendant’s, Mr. Anthony Ross’s, as he asserts the district court is

*
The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by
designation.

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required to based on 18 U.S.C. § 3553(a)(6). Because we conclude that § 3553(a)(6) refers to
national uniformity as opposed to uniformity of co-defendants’ sentences, we affirm the district
court.
BACKGROUND
On August 10, 2006 defendant was sentenced for health care fraud under 18 U.S.C. § 1347.
The base offense level was six under § 2B1.1(a)(2) of the Sentencing Guidelines. The level was
increased to sixteen under § 2B3.1(b)(1) because the loss was greater than one million dollars but
less than two and a half million dollars. The level was again increased to twenty-six under
§ 3B1.1(a) because Mr. Simmons was considered a leader of the criminal activity. This level was
reduced by three for Mr. Simmons’s acceptance of responsibility. The government had filed a
§ 5K1.1 motion on Mr. Simmons’s behalf, and it asked for a five-level reduction because Mr.
Simmons had significantly assisted the government. The district judge granted the government’s
motion and considered the § 3553(a) sentencing factors, and he determined that the offense level
should be reduced from twenty-three to eighteen, primarily because of Mr. Simmons’s significant
assistance to the government. Mr. Simmons’s criminal history category was I, so his guidelines
range was twenty-seven to thirty-three months. The district judge sentenced Mr. Simmons to twenty-
three months in prison, as well as $1,858,467 in restitution, a $100 special assessment, and three
years of supervised release. On appeal defendant asserts that the district judge failed to consider 18
U.S.C. § 3553(a)(6), which directs the sentencing judge to consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of similar
conduct.” Mr. Simmons argues this factor was not considered because he received a sentence nearly
twice that of his co-defendant, Mr. Anthony Ross.
Mr. Ross had been sentenced for the same health care fraud on December 7, 2005, more than
eight months before Mr. Simmons was sentenced. The calculation of the Guidelines offense level
for Mr. Ross was the same as Mr. Simmons’s; Mr. Ross had a base level of six, which was increased
to sixteen for the amount of the loss and then increased again to twenty-six because Mr. Ross also
was a leader of the criminal activity. He also received a three-level reduction for his acceptance of
responsibility. The district court granted the government’s § 5K1.1 motion, and gave a five-level
reduction because Mr. Ross too had significantly helped the government through his cooperation.
After considering the § 3553(a) sentencing factors, the district court determined that the offense
level of twenty-three should be reduced to twelve, or almost 50%, primarily because of Mr. Ross’s
very significant assistance to the government; Mr. Ross was the first to come forward, he gave the
government information it would not have been able to discover absent his cooperation, and he had
also implicated Mr. Simmons, who only decided to cooperate after being so implicated. Because
Mr. Ross’s criminal history category was II, the guidelines range for his sentence was twelve to
eighteen months. The court then sentenced Mr. Ross to twelve months and one day in prison, as well
as $1,704,865 in restitution, a $100 special assessment, and two years of supervised release.
ANALYSIS
I. Standard of Review
Historically the failure to object at sentencing meant that the defendant waived the issue for
appeal, United States v. Cullens, 67 F.3d 123, 124 (6th Cir. 1995) (per curiam), and only plain error
review under Rule 52(b) of the Federal Rules of Criminal Procedure would be available, United
States v. Swanberg, 370 F.3d 622, 627 (6th Cir. 2004) (citing United States v. Olano, 507 U.S. 725,
733 (1993)). The government asks that we apply the plain error review standard here because the
defendant did not raise his grounds for appeal at the sentencing hearing.
No. 06-6173 United States v. Simmons Page 3

United States v. Bostic, however, preserves the issue for appeal despite a party’s failure to
object. In Bostic, this Circuit promulgated a new procedural directive for district judges to follow
when imposing sentences: after the judge has pronounced the sentence, the judge must “ask the
parties whether they have any objections to the sentence just pronounced that have not previously
been raised.” 371 F.3d 865, 872 (6th Cir. 2004). If the judge fails to “clearly ask[] for objections”
at this time, then the objections will not be considered forfeited on appeal. Id.; accord United States
v. Clark, 469 F.3d 568, 570 (6th Cir. 2006). It is clear from the record that the district judge did not
follow this procedural directive. J.A. 105-07.
To determine whether Bostic preserves the issue for appeal requires clarification of what the
defendant is actually asserting in this case. He claims that the district court failed to consider the
disparity between his sentence and that of a co-defendant’s, and he points to § 3553(a)(6) as
authority for the proposition that a district court is required to engage in such a consideration.
Considering uniformity between co-defendants’ sentences, however, is not required by the
Sentencing Guidelines or the § 3553(a) factors.
Subsection 3553(a)(6) is concerned with national disparities among the many defendants
with similar criminal backgrounds convicted of similar criminal conduct. See United States v.
Poynter, __ F.3d __, No. 05-6508. 2007 WL 2127353, at * 3-7 (6th Cir. July 26, 2007); United
States v. LaSalle, 948 F.2d 215, 218 (6th Cir. 1991); United States v. Parker, 912 F.2d 156, 158 (6th
Cir. 1990). It is not concerned with disparities between one individual’s sentence and another
individual’s sentence, despite the fact that the two are co-defendants. LaSalle, 948 F.2d at 218;
United States v. Gessa, 944 F.2d 26, 270 (6th Cir. 1991); Parker, 912 F.2d at 158. Instead,
§ 3553(a)(6) is there to ensure nationally uniform sentences among like offenders so as to leave
room to depart downward for those defendants who are truly deserving of leniency. Poynter, __ F.3d
__, 2007 WL 2127353, at * 3-7; United States v. Borho, 485 F.3d 904, 910 (6th Cir. 2007); United
States v. Husein, 478 F.3d 318, 331, 333-34 (6th Cir. 2007). Section 3553(a)(6)’s national concern
has been noted by a great majority of the circuits. United States v. Dowdy, 216 F. App’x 178, 180-81
(3d Cir. 2007) (citing United States v. Seligsohn, 981 F.2d 1418, 1428 (3d Cir. 1992)); United States
v. Saez, 444 F.3d 15, 18 (1st Cir. 2006); United States v. Newsom, 428 F.3d 685, 689 (7th Cir. 2005);
United States v. McMutuary, 217 F.3d 477, 489-90 (7th Cir. 2000); United States v. McKnight, 186
F.3d 867, 869 (8th Cir. 1999); United States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996); United
States v. Arlen, 947 F.2d 139, 147 (5th Cir. 1991); United States v. Garza, 1 F.3d 1098, 1100 (10th
Cir. 1993); United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir. 1991).
A district judge, however, may exercise his or her discretion and determine a defendant’s
sentence in light of a co-defendant’s sentence. United States v. Nelson, 918 F.2d 1268, 1272-73 (6th
Cir. 1990). That action, however, would be a discretionary one because the district court is not
required to consider that type of disparity under § 3553(a)(6). See LaSalle, 948 F.2d at 218; accord
United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006) (“[A]lthough § 3553(a) does not require
district courts to consider sentencing disparities among co-defendants, it does not prohibit them from
doing so.”).
In light of this analysis, we believe that Mr. Simmons is in effect raising two distinct claims:
(1) the district court did not consider a discretionary factor, namely the disparity between the two
sentences; and (2) the district court did not consider national uniformity as required by § 3553(a)(6).
The first issue is not preserved by Bostic. There is no appealable issue saved by Bostic when a
defendant wishes to appeal a discretionary factor and does not request the judge to exercise such
discretion during the sentencing hearing, as Mr. Simmons did not so request. Bostic only preserves
objections, not possible requests for discretion. The defendant must be claiming that the district
court erred, and there is no claim that the district court erred when it did not consider an issue it was
not required to consider unless raised by the defendant. Mr. Simmons is not claiming that the district
court erred because he never asked the district court to exercise its discretion and consider co-
No. 06-6173 United States v. Simmons Page 4

defendant sentence disparity. Indeed, even if Mr. Simmons had requested that the district court
consider this discretionary factor, discretionary factors are not even appealable when discretion is
requested and the judge refused or did not depart as far as the defendant wanted so long as the judge
appreciated his discretion to downwardly depart. See, e.g., United States v. Jones, 417 F.3d 547,
550-51 (6th Cir. 2005).
The claim that the district court failed to consider national uniformity as required by
§ 3553(a)(6), however, is preserved for appeal by Bostic, as it would be error for a district court not
to consider the statutory factors. Because this claim is preserved by Bostic, it is not subject to only
plain error review. When an objection to a sentence is preserved, we conduct a reasonableness
review.
II. Reasonableness
Mr. Simmons claims that his sentence is both procedurally and substantively unreasonable
because the district court failed to consider § 3553(a)(6). A sentence is procedurally unreasonable
if “the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the
other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an
appropriate sentence without such required consideration.” United States v. Webb, 403 F.3d 373, 383
(6th Cir. 2005). A sentence is substantively unreasonable when the district court “select[s] the
sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent
§ 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor.” Id. at 385.
Because Mr. Simmons’s sentence is reasonable, his claim fails.
A. Procedural Reasonableness
Mr. Simmons’s sentence was not procedurally unreasonable, despite the fact the district court
did not explicitly discuss § 3553(a)(6). “While the district court did not explicitly name each of the
3553(a) factors that it was using to arrive at [the defendant]’s sentence, a reasonable sentence based
on consideration of the factors does not require a rote listing.” United States v. Collington, 461 F.3d
805, 809 (6th Cir. 2006); e.g., United States v. Husein, 478 F.3d 318, 330 (6th Cir. 2007) (“The
district court need not discuss each and every § 3553(a) factor . . . .”); United States v. Williams, 436
F.3d 706, 708 (6th Cir. 2006) (“[The defendant] correctly notes that the sentencing judge must
consider the list of sentencing factors articulated in 18 U.S.C. § 3553(a). Such consideration,
however, need not be evidenced explicitly . . . .”); United States v. Chandler, 419 F.3d 484, 488 (6th
Cir. 2005) (“There is no requirement that the district court engage in a ritualistic incantation of the
§ 3553(a) factors it considers.” (citing United States v. Washington, 147 F.3d 490, 491-92 (6th Cir.
1998))); United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005) (“[A district court] need not recite
the[] [§ 3553(a)] factors . . . .”). The record demonstrates that the district judge did expressly
consider most of the § 3553(a) factors, including the Sentencing Guidelines, the nature and
circumstances of the offense, the history and characteristics of the defendant, as well as the need for
the sentence to reflect the seriousness of the crime, the need to afford adequate deterrence, the need
to protect the public from further crimes, and the need to provide the defendant with correctional
treatment. J.A. 100-04; cf. Collington, 461 F.3d at 809; Washington, 147 F.3d at 491-92. Indeed, the
only § 3553(a) factor the judge did not explicitly consider was factor (a)(6), “the need to avoid
unwarranted sentence disparities among defendants with similar records who have been found guilty
of similar conduct.” 18 U.S.C. § 3553(a)(6) (2006).
The district judge is only under a more rigorous duty to make explicit its consideration of
the factors when a defendant makes a particular argument, United States v. Richardson, 437 F.3d
550, 554 (6th Cir. 2006) (“Where a defendant raises a particular argument in seeking a lower
sentence, the record must reflect both that the district judge considered the defendant’s argument
and that the judge explained the basis for rejecting it.”), and when a factor is particularly relevant,
No. 06-6173 United States v. Simmons Page 5

see Husein, 478 F.3d at 330 (“We thus conclude that the sentence imposed by the district court,
which considered at least five of the six relevant § 3553)(a) factors [leaving undiscussed (a)(6)], was
procedurally reasonable.”); United States v. Dexta, 470 F.3d 612, 615 (6th Cir. 2006) (“Undeniably,
the district court did not explicitly consider each and every § 3553(a) factor. Although a more
specific discussion of the relevant factors would have been preferable, the record is nevertheless
sufficient to allow for meaningful appellate review.”). The district judge could also violate
procedural reasonableness if the defendant is able to prove that the lack of explicit discussion stems
from a complete ignorance of that factor. See Williams, 436 at 708 (“[C]onsideration [of the
§ 3553(a) factors] need not be evidenced explicitly, and Williams fails to point to any indication that
the district court ignored those factors.”). It is undisputed that the defendant did not call this factor
to the sentencing judge’s attention, and therefore Mr. Simmons can only claim that this factor was
particularly relevant, and therefore warranted more explicit consideration, or that the district court
in fact ignored this factor.
Mr. Simmons has not alleged that national uniformity was particularly applicable in his case,
and would therefore have warranted explicit discussion. National uniformity may be particularly
important when a particular crime statutorily allows for a severe punishment but it has not been
imposed in similar cases, or when a particular crime is especially rampant or has a quality that is
encouraging more strict sentences across the board. Otherwise, national uniformity is generally
taken into account by the Sentencing Guidelines, which “are almost certainly the best indication of
ordinary practice since most sentences are within the guidelines.” United States v. Saez, 444 F.3d
15, 19 (1st Cir. 2006).
Neither has Mr. Simmons proven that the district court ignored national uniformity in
sentencing. He points to the fact that the district court did not explicitly discuss § 3553(a)(6). Lack
of discussion will not mean that the district court ignored the factor. See, e.g., Husein, 478 at 331;
United States v. McBride, 434 F.3d 470, 477 (6th Cir. 2006). Indeed, here it is clear that the district
judge did consider national uniformity because the judge determined what the Sentencing Guidelines
range would be, a guidelines range that considers the criminal conduct at issue as well as the
criminal history of the defendant. Saez, 444 F.3d at 19 (“[T]he guidelines themselves are almost
certainly the best indication of ordinary practice since most sentences are within the guidelines.”).
Indeed, one of the purposes of the Guidelines is to maintain national uniformity in sentences. The
record provides sufficient evidence that the district court considered national uniformity, and
therefore there was no procedurally unreasonable error. See McBride, 434 at 476 n.3.
B. Substantive Reasonableness
Mr. Simmons’s also claims his sentence is substantively unreasonable because it did not take
proper account of § 3553(a)(6). He claims that national uniformity should have been given more
weight in determining his sentence. To prove it was not adequately considered, he points to his co-
defendant’s sentence as an example of a person with a slightly greater criminal background who was
convicted of the same criminal conduct yet received a sentence of approximately half his own
sentence. This argument lacks merit.
There is no evidence that Mr. Simmons’s sentence was out of line with national standards
for health care fraud. Mr. Simmons’s proffering of the sentence imposed on Mr. Ross, Mr.
Simmons’s co-defendant, is unavailing. “[A] single example is about the weakest sort of proof of
national practice that can be imagined.” Saez, 444 F.3d at 19 (1st Cir. 2006). If great weight was
given to such singular examples, then the prosecution and defense would be encouraged to “find[]
random examples to support a higher or lower sentence.” Id. The propriety of Mr. Ross’s sentence
is not before this Court, and if we relied on this singular example as grounds for finding Mr.
Simmons’s sentence substantively unreasonable, we then may well be creating a greater national
disparity among the many defendants than Mr. Ross’s sentence alone may create. Cf. United States
No. 06-6173 United States v. Simmons Page 6

v. McMutuary, 217 F.3d 477, 488-90 (7th Cir. 2000). Indeed, the Guidelines would suggest that Mr.
Simmons’s sentence may have been too lenient. The district judge chose to downwardly depart eight
levels from the Guidelines range. That provided a sentencing range of twenty-seven to thirty-three
months. The district judge, however, only sentenced Mr. Simmons to twenty-three months. This was
far below the Guidelines, and that range is considered good evidence of the national standard. Saez,
444 F.3d at 19. Mr. Simmons’ sentence, therefore, was not substantively unreasonable.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.