United States Court of Appeals
For the Eighth Circuit
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No. 12-3597
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Robert E. Simmons
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: April 8, 2013
Filed: June 28, 2013
[Unpublished]
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Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
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PER CURIAM.
Robert Simmons appeals his conviction and sentence of 87 months'
imprisonment, claiming that the district court1 erred in allowing the government to
1
The Honorable Stephen N. Limbaugh, Jr., United States District Court for the
Eastern District of Missouri.
comment on his decision not testify at trial and by failing to fully consider the 18
U.S.C. § 3553(a) sentencing factors. We affirm.
I. BACKGROUND
A grand jury indicted Simmons on one count of being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). At trial, the government called
several witnesses during its case-in-chief. During closing argument, the government
made numerous comments indicating that the evidence was uncontroverted. For
example, prior to summarizing the evidence in the case, the government stated the
following:
In this case you know all the facts. In this case you know that Mr.
Simmons had the gun, you know why it was where it was. You know
it was in the car. And those facts are uncontroverted. If I can go
through all of these facts, and, if I can, I'm going to call them
uncontroverted, because there's not one shred of evidence that is
opposing these facts; that is, witnesses testified about these things.
There's not any testimony opposing any of these facts at all.
In summarizing the testimony of Lakeisha Lee–which tended to establish Simmons'
possession of the firearm–the government noted, "There's no evidence to suggest that
that's not true. That is, again, uncontroverted evidence." And, when the government
recounted the testimony of the officers to whom Simmons confessed, the government
highlighted that "you basically don't have . . . anything more than the uncontroverted
evidence of the gun being found and Mr. Simmons saying it's my gun."
Eventually, the jury found Simmons guilty of being a felon in possession of a
firearm. At the sentencing hearing, the district court computed an advisory
Guidelines range of 70 to 87 months' imprisonment. Given Simmons' lengthy
criminal history, the government requested that the district court either depart or vary
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upward from the Guidelines range, seeking a sentence of 120 months' imprisonment.
The district court denied the government's requested departure or variance and
imposed a sentence of 87 months' imprisonment. In imposing a sentence at the top
of the Guidelines range, the district court reviewed Simmons' lengthy criminal history
and noted, "I'm not willing to go lower . . . . I mean, it's strictly because of your
criminal history. There's too much . . . . [Y]ou've been in trouble all your adult life."
Simmons appeals.
II. DISCUSSION
Simmons contends that the district court erred by allowing the government to
comment on his failure to testify. According to Simmons, the government violated
his Fifth Amendment privilege against self-incrimination, when, during closing
argument, the government "stated several times that the evidence [was]
'uncontroverted.'" In Simmons' view, this inappropriately highlighted that he chose
not to testify, as he alone had the information to rebut testimony provided by
government witnesses. Simmons acknowledges that he did not object to the
government's alleged misconduct or move for mistrial, but he nonetheless asserts that
the district court abused its discretion by not sua sponte declaring a mistrial or
providing a curative instruction. Having failed to timely assert this Fifth Amendment
challenge before the district court, we cannot agree with Simmons that anything other
than plain error review applies. United States v. Thornberg, 676 F.3d 703, 706 (8th
Cir. 2012), cert. denied, 133 S. Ct. 1654 (2013).
Under the Fifth Amendment, indirect comments concerning a defendant's
decision not to testify can rise to the level of a constitutional violation if the
comments either "(1) manifest the prosecutor's intention to call attention to the
defendant's failure to testify, or (2) are such that the jury would naturally and
necessarily understand the comments as highlighting the defendant's failure to
testify." Herrin v. United States, 349 F.3d 544, 546 (8th Cir. 2003). We must,
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however, review the comments within their specific context and will reverse only if
the defendant can establish that "the comments were improper and that they resulted
in prejudice." Id.
After examining the government's indirect comments in context, we conclude
no error occurred, much less plain error. To be sure, we think the government's
comments were meant to bolster its own evidence and explain that its witnesses
testified consistently and credibly. See United States v. Moore, 129 F.3d 989, 993
(8th Cir. 1997) (concluding, "[s]tatements that the government's evidence was
'uncontradicted' were simply in reference to the strength and clarity of the
government's evidence presented at trial").2 Additionally, from these relatively
innocuous comments, the jury would not naturally and necessarily draw the inference
that the comments highlighted Simmons' failure to testify. Indeed, the comments
were not even sufficiently offensive to warrant an objection by Simmons' counsel.
Finally, where "the argument in favor of finding a constitutional violation is tenuous
at best, [a standard privilege] instruction is an additional safeguard"–as was given
here. Robinson v. Crist, 278 F.3d 862, 866 (8th Cir. 2002). Therefore, we perceive
no plain error under the Fifth Amendment.
2
Notwithstanding our conclusion, the government "may not comment on a
defendant's failure to present evidence to contradict the government's case if the
defendant alone had the information to do so." United States v. Sandstrom, 594 F.3d
634, 662-63 (8th Cir. 2010) (quotation and emphasis omitted). At trial, Simmons
attempted to establish that the firearm belonged to Jerome Bridges, a passenger in the
car at the time Simmons was stopped. Thus, by Simmons' own assertion, Jerome
Bridges allegedly had information to rebut the government's evidence. Accordingly,
the present case lies in contrast to United States v. Triplett, where the government
commented that the jury "never heard evidence that the defendant didn't know that
he possessed the drugs," because with such a comment, "only [the defendant] could
deny his own knowledge that he possessed the drugs." 195 F.3d 990, 995 (8th Cir.
1999) (quotation and emphasis omitted).
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Next, Simmons challenges his sentence on appeal. "We initially review a
sentence for significant procedural error and then, if necessary, for substantive
reasonableness." United States v. David, 682 F.3d at 1074, 1076 (8th Cir. 2012).
Relevant here, significant procedural error occurs when the district court fails to
consider the § 3553(a) factors or fails to adequately explain a sentence. United States
v. Nissen, 666 F.3d 486, 490 (8th Cir. 2012). After reviewing a sentence for
procedural error, we review for substantive reasonableness, taking into account the
totality of the circumstances. United States v. Mabery, 686 F.3d 591, 598 (8th Cir.
2012). "If a sentence is within the properly calculated Guidelines range, we presume
it is substantively reasonable." United States v. Hoffman, 707 F.3d 929, 936 (8th Cir.
2013).
Simmons makes the over-arching argument that the district court imposed an
unreasonable sentence, because it did not fully consider the § 3553(a) factors. We
read Simmons' brief to challenge his sentence on both procedural and substantive
grounds, but he does not clearly make this distinction. To the extent Simmons claims
the district court committed procedural error, we review for plain error as he did not
make this objection below. United States v. Wohlman, 651 F.3d 878, 883-84 (8th
Cir. 2011). However, we review the substantive reasonableness of his sentence for
an abuse of discretion regardless of whether the issue was raised below. United
States v. Deegan, 605 F.3d 625, 629 (8th Cir. 2010).
Simmons complains that the district court did not apply the § 3553(a)
sentencing factors and placed too much emphasis on his criminal history. "[T]here
is no requirement that the district court recite every section 3553(a) factor." United
States v. Bryant, 606 F.3d 912, 919 (8th Cir. 2010). And, here, "[a]lthough the
district court did not recite every section 3553(a) factor, the court did refer to section
3553(a) and specifically accounted for the sentencing objectives of just punishment,
general deterrence and incapacitation, all of which are considerations under section
3553(a)." Id. (internal quotation omitted). Moreover, the district court considered
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the specific characteristics and history of Simmons, namely his extensive criminal
history. See 18 U.S.C. § 3553(a)(1). Therefore, because the district court considered
the § 3553(a) factors and provided a meaningful explanation of those factors, no
procedural error occurred, and we conclude the district court did not abuse its
discretion by imposing a within-Guidelines sentence after adequately evaluating the
§ 3553(a) sentencing factors.
III. CONCLUSION
We affirm.
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