17-2104-cr
United States v. Simmons

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32 .1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
14 th day of February, tw o thousand nineteen.

Present: PIERRE N. LEVAL, ROSEMARY S. POOLER, REENA RAGGI, Circuit Judges

.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee

,

v. 17-2104-cr

LAWRENCE SIMMONS, AKA Seal ed Defendant 12, AKA Black,

Defendant-Appellant

. 1

_____________________________________________________
Appearing for Appellant: Jane S. Meyers, Brooklyn, N.Y.

Appearing for Appellee: A lison Moe, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief ), for Geoffrey S. Berman, United States Attorney fo r the Southern District of New York, New York, N.Y.

1 The Clerk of the Court is direct ed to amend the caption as above.2 Appeal from an order the United States District Court for the S outhern District of New York (Preska, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the case be and it hereby is REMANDED to the District Court for
reconsideration of the sentence

.

Appellant Lawrence Simmons appeals from a judgment entered on June 23, 2017, in the
United States District Court for the Sout hern District of New York (Preska, J. ), revoking his term of supervised release and sentencing him to 36 months’ imprisonment. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Following service of a 60-month prison term for conspiring to possess with intent to
distribute crack cocaine and hero in in violation of 21 U.S.C. § 846, Simmons began a five-year term of supervised release on December 14, 2015. On July 18, 2016, Simmons was arrested in
connection with an incident that occurred in the early morning hours of July 16, when Simmons snuck into the bedroom of an eleven-year-old girl, who awoke to discover him touching the clothing that covered her vaginal area. The ev ent triggered a supervis ion Violation Report, charging Simmons with sexual abuse in the first, second, and third degrees, forcible touching, and endangering the welfare of a child. An amen ded report charged Simmons with associating with an individual under federal supervision, as to which the government elected not to proceed.

On May 17, 2017, the district court held a hear ing at which the minor victim, her mother,
and Simmons testified. The court concluded that the victim was credible, that Simmons had sexually assaulted her, and that Simmons was not credible. On June 22, 2017, the court sentenced Simmons to 36 months’ imprisonment.

Simmons challenges the sentence as proce durally unreasonable. Si mmons argues that the
district court did not ca lculate the Guidelines range; did not adequately set forth the reasons for its sentence; did not set forth or ally the specific reasons that ju stified its imposition of the aboveGuidelines sentence; and filed its statement of reas ons close to eleven mont hs after the judgment.

This Court reviews sentences for violations of supervised release—as it does all sentences—for reasonableness, which “amount s to review for abuse of discretion.” United States
v. Cavera , 550 F.3d 180, 187 (2d Cir. 2008). Where, as here, a defendant did not challenge the procedural reasonableness of his sentence in the district court, this Court reviews only for plain

error, i.e. , (1) error; that (2) is plain; (3) affects s ubstantial rights; and (4) “affect[s] the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Villafuerte , 502 F.3d 204, 209 (2d Cir. 2007) (internal quotation marks omitted).

We find no merit in Simmons’s contentions and, but for the Gove rnment’s letter of January 8, 2019, would have affirmed the judgmen t. By this letter, how ever, the Government advised that the sentence was imposed on the basi s of an incorrect perception of the applicable Sentencing Guidelines range. At the time of sent ence, the court and the parties believed that Simmons’s sexual misconduct, as a “sexual act” under 18 U.S.C. § 2241(c), was a Grade A violation. The Government point ed out that, because the vagi nal touching was “through the3 clothing” of the victim, it did not qualify under the definition provided by § 2246(2)(D), of a sexual act prohibited by § 2241(c), and as a conse quence did not qualify as a Grade A violation under U.S.S.G. § 7B1.1(a)(1)(A), with a range of 24-30 months’ imprisonment. The government accordingly consented to a remand for resenten cing. Simmons agrees to that disposition.

We hereby REMAND to the district court for reconsider ation of the senten ce in light of the earlier mistake as to the applicable Guideline.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk