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[Unpublished]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 court erred in allowing the government to 1

The Honorable Stephen N. Limbaugh, Jr., United States District Court for the

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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 officersto whomSimmons 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

ofthe 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 assertsthat

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"). Additionally, from these relatively

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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.

Notwithstanding our conclusion, the government "may not comment on a

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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 failsto 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 issubstantively 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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