United States v. Arthur Simmons

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4532

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ARTHUR JERMAIN SIMMONS, a/k/a Melvin Davis, a/k/a Arthur
Germain Simmons, a/k/a Arthur Germaine Simmons, a/k/a Arther
Simmons, a/k/a Arthur German Simmons, a/k/a Arthur Jermaine
Simmons,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:08-cr-00688-PMD-1)

Submitted: March 13, 2012 Decided: March 29, 2012

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christopher R. Antley, DEVLIN & PARKINSON, P.A., Greenville,
South Carolina, for Appellant. Sean Kittrell, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Arthur Jermain Simmons appeals the 180-month aggregate

sentence imposed on him at resentencing after he pled guilty to

armed bank robbery (“Count Two”), in violation of 18 U.S.C.

§ 2113(a), (d) (2006), using and carrying a firearm during and

in relation to a crime of violence (“Count Three”), in violation

of 18 U.S.C. § 924(c) (2006), and possession of a firearm and

ammunition by a felon (“Count Four”), in violation of 18 U.S.C.

§ 922(g)(1) (2006). Simmons’ counsel has filed a brief * pursuant

to Anders v. California, 386 U.S. 738 (1967), in which he states

that he has divined no meritorious grounds for appeal but

requesting that we review three potential areas of error:

(1) whether it was improper to deny Simmons’ motion to withdraw

his guilty plea to Count Three; (2) whether the district court

failed to adequately explain its selected sentence; and

(3) whether Simmons’ sentence is both procedurally and

substantively unreasonable because the district court continued

to assess him as a career offender, notwithstanding this court’s

holding to the contrary in Simmons’ previous direct appeal.

Having reviewed the record, we affirm the judgment of the

district court.

*
Simmons was informed of his right to file a supplemental
brief but elected not to do so.

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 First, we conclude that the district court did not

abuse its discretion in denying Simmons’ motion to withdraw his

guilty plea to Count Three. See United States v. Ubakanma, 215

F.3d 421, 424 (4th Cir. 2000) (stating standard of review). “A

defendant has no absolute right to withdraw a guilty plea,”

United States v. Bowman, 348 F.3d 408, 413 (4th Cir. 2003)

(internal quotation marks omitted), but instead bears the burden

of showing a “fair and just reason” for withdrawing his plea.

Fed. R. Crim. P. 11(d)(2)(B); United States v. Battle, 499 F.3d

315, 319 (4th Cir. 2007). See also United States v. Moore, 931

F.2d 245, 248 (4th Cir. 1991) (describing several factors that

should inform a district court’s determination whether to allow

a defendant to withdraw a guilty plea).

Here, although Simmons argues that he is legally

innocent of the offense charged in Count Three because the gun

remained in his van during the bank robbery, we cannot agree.

See 18 U.S.C. § 924(c)(1)(A) (criminalizing anyone who “uses,”

“carries,” or “possesses” a firearm “during and in relation to

any crime of violence”); Muscarello v. United States, 524 U.S.

125, 127 (1998) (someone who knowingly possesses and conveys

firearms in a vehicle “carries” a firearm for purposes of

§ 924(c)); United States v. McCaskill, 676 F.2d 995, 1000 (4th

Cir. 1982) (noting that flight is a part of a robbery offense).

Accord United States v. Williams, 344 F.3d 365, 372-73 (3d Cir.

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2003) (collecting cases and upholding a § 924(c) conviction

where the defendant bank robber carried the gun only in his car,

not into the bank); United States v. Adkins, 203 F. App’x 472,

473-74 (4th Cir. Oct. 23, 2006) (defendant used weapon “during”

a carjacking when firing shots while escaping). Because there

is no other reason to believe that Simmons’ plea was defective,

it was no abuse of discretion for the district court to deny

Simmons’ motion to withdraw it.

As for Simmons’ sentence, we review it for

reasonableness, applying an abuse of discretion standard.

Gall v. United States, 552 U.S. 38, 51 (2007). Although counsel

suggests that Simmons’ sentence was not adequately explained by

the district court, see United States v. Carter, 564 F.3d 325,

330 (4th Cir. 2009), the district court’s explanation “need not

be elaborate or lengthy.” United States v. Johnson, 587 F.3d

625, 639 (4th Cir. 2009). Nor must the district court

“robotically tick through § 3553(a)’s every subsection”; it must

only provide “some indication” that it considered the § 3553(a)

factors with respect to the defendant before it and also

considered any nonfrivolous arguments raised by the parties at

sentencing. United States v. Montes-Pineda, 445 F.3d 375, 380

(4th Cir. 2006). Our review of the record in this case

convinces us that the district court’s explanation is sufficient

to allow for “‘meaningful appellate review,’” Carter, 564 F.3d

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at 330 (quoting Gall, 552 U.S. at 50), such that we need “not

guess at the district court’s rationale.” Id. at 329. We

therefore decline to find the sentence imposed upon Simmons

procedurally unreasonable in this regard.

Moreover, we reject Simmons’ suggestion that his

sentence is both procedurally and substantively unreasonable

because the district court enhanced his sentence upon its

conclusion that Simmons was a career recidivist, despite the

fact that Simmons was not technically a career offender under

the Guidelines. When a district court imposes a sentence that

falls outside of the applicable Guidelines range, we consider

“whether the sentencing court acted reasonably both with respect

to its decision to impose such a sentence and with respect to

the extent of the divergence from the sentencing range.” United

States v. Hernandez–Villanueva, 473 F.3d 118, 123 (4th Cir.

2007). In conducting this review, the appellate court “must

give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the

variance.” Gall, 552 U.S. at 51. Thus, even if we could have

reasonably reached a different sentencing result than that

arrived at by the district court, “this fact alone is

‘insufficient to justify reversal of the district court.’”

United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007)

(quoting Gall, 552 U.S. at 51).

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 Here, even if the district court failed to employ the

proper incremental analysis in determining an appropriate degree

of departure, see United States v. Dalton, 477 F.3d 195, 199

(4th Cir. 2007), any such procedural error is harmless where

“the upward variance based on the § 3553(a) factors justifie[s]

the sentence imposed.” United States v. Rivera-Santana, 668

F.3d 95, 104 (4th Cir. 2012). Our review of the record

persuades us that the district court’s analysis of the § 3553(a)

factors as they applied to Simmons’ case is adequate to support

the upward variant sentence ultimately imposed. See id.; United

States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008). We are

likewise convinced that the district court’s sentencing

determinations were otherwise substantively reasonable and

should therefore remain undisturbed. See Evans, 526 F.3d at

160; see also United States v. Diosdado–Star, 630 F.3d 359, 367

(4th Cir.), cert. denied, 131 S. Ct. 2946 (2011).

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm the judgment of the district court.

This court requires that counsel inform Simmons, in writing, of

the right to petition the Supreme Court of the United States for

further review. If Simmons requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

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representation. Counsel’s motion must state that a copy thereof

was served on Simmons.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

AFFIRMED

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