UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4074

THOMAS SIMMONS, IV,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Robert G. Doumar, Senior District Judge.

(CR-02-66)

Submitted: March 31, 2004

Decided: June 14, 2004

Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

James O. Broccoletti, ZOBY & BROCCOLETTI, P.C., Norfolk, Virginia, for Appellant. Paul J. McNulty, United States Attorney,

Michael J. Elston, Janet S. Reincke, Assistant United States Attorneys, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Thomas Simmons, IV, appeals his conviction and sentence for two

counts of making false statements to a firearms dealer in violation of

18 U.S.C.A. § 924(a)(1)(A) (West Supp. 2003); 18 U.S.C. § 2 (2000).

He challenges the admission of testimony and evidence of gun purchase transactions by an absent witness and testimony concerning

statements by that individual. He also contends that the court erred in

determining his sentence by considering conduct for which he had

been acquitted. Finding no reversible error, we affirm. 

At Simmons’ trial, the government presented the testimony of

Michelle Jones and Theresa Jones, cooperating witnesses who testified that they each made several gun purchases for Simmons over

several years. Following the government’s presentation of its case,

Simmons moved for judgment of acquittal. The district court granted

the motion as to ten of the twenty-nine counts. Each of those ten

counts related to gun purchases that Neil Dennis was alleged to have

made for Simmons. Neil Dennis was not present to testify at Simmons’ trial. 

Simmons then moved to have stricken from the record all evidence

relating to those charges, including exhibits to which he had stipulated. He also requested that the jury be instructed to disregard any

testimony relating to those charges. The district court denied the

motion. 

The jury subsequently found Simmons guilty of two counts, both

involving firearms purchases by Michelle Jones. The jury found Simmons not guilty of the remaining charges. 

On appeal, Simmons challenges the admission of evidence and

exhibits concerning Neil Dennis’ purchases of firearms and statements made by Dennis. He argues that the evidence was inadmissible

hearsay, was not admissible under Fed. R. Evid. 404(b), and was not

relevant. He asserts that admission of the evidence prejudiced his

right to a fair trial. 

2 UNITED STATES v. SIMMONS
We review the admission of evidence for an abuse of discretion.

United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). We need

not address Simmons’ specific challenges because the admission of

the contested evidence, if error, was harmless. See Fed. R. Crim. P.

52(a). Evidentiary rulings will be found harmless if the court is able

to conclude, "‘with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’" Brooks, 111 F.3d

at 371 (quoting United States v. Heater, 63 F.3d 311, 325 (4th Cir.

1995)). 

Here, the jury heard evidence of eleven firearm purchases by Theresa Jones, eight firearm purchases by Michelle Jones, and ten firearm

purchases by Neil Dennis. All of these firearms were allegedly

directed by and purchased for Simmons. Despite having heard and

received evidence of Dennis’ involvement in this scheme, the jury

convicted Simmons of only two of the twenty-nine counts charged in

the indictment, both related to gun purchases by Michelle Jones. The

evidence as to these two purchases consisted of testimony by

Michelle Jones, and corroborative testimony by other witnesses. None

of the challenged evidence pertained to the two counts on which Simmons was convicted. 

We find that any error in admitting evidence of Dennis’ gun purchases was harmless because "it appears ‘beyond a reasonable doubt

that the error complained of did not contribute to the verdict

obtained.’" Neder v. United States, 527 U.S. 1, 15 (1999) (quoting

Chapman v. California, 386 U.S. 18, 24 (1967)); see Delaware v. Van

Arsdall, 475 U.S. 673, 681 (1986) ("[A]n otherwise valid conviction

should not be set aside if the reviewing court may confidently say, on

the whole record, that the constitutional error was harmless beyond

a reasonable doubt."). Because the district court’s admission of the

challenged evidence and the court’s subsequent denial of the motion

to strike such evidence did not result in any prejudice to Simmons, we

find that the error, if any, was harmless. Accordingly, we affirm Simmons’ convictions. 

At sentencing, Simmons objected to the recommendation in the

presentence report that he be held responsible for twenty-nine firearms. The district court found that the preponderance of the evidence

UNITED STATES v. SIMMONS 3
supported a finding that Simmons was responsible for eighteen firearms; the court concluded that the preponderance of the evidence did

not support a finding that the firearms purchased by Theresa Jones

were on Simmons’ behalf. Accordingly, the court disregarded the

eleven firearm purchases made by Theresa Jones. Simmons’ offense

level was therefore reduced by two levels under U.S. Sentencing

Guidelines Manual § 2K2.1(b)(1)(B) (2002), resulting in a total

offense level of twenty-six and a guideline range of sixty-three to

seventy-eight months. The court sentenced Simmons to seventy-eight

months imprisonment. 

Simmons contends that the court erred in considering acquitted

conduct in determining his offense level. He asserts that the evidence

did not rise to the level of a preponderance and that the court failed

to explain why evidence was sufficient as to some of the charges and

insufficient as to others. Contrary to Simmons’ contention, the district

court did explain its finding that Simmons was responsible for eighteen firearms, and these findings were not clearly erroneous. See

United States v. Crump, 120 F.3d 462, 468 (4th Cir. 1997) (providing

standard). Dennis testified during the sentencing hearing that he

bought ten guns for Simmons. He stated that Simmons directed which

guns to purchase and where to purchase them, provided the purchase

money, and paid Dennis money or crack cocaine. Michelle Jones’

trial testimony was substantially similar in that she testified that she

purchased firearms for Simmons. He provided the money and directed

the type of firearm he wanted her to buy and the location from which

she should purchase the firearm. He also paid her in crack cocaine

and/or money for making the gun purchases. We find that the preponderance of the evidence supports the district court’s finding that Simmons was responsible for the eighteen firearms purchased for him by

Michelle Jones and Neil Dennis, see United States v. Jones, 31 F.3d

1304, 1316 (4th Cir. 1994); United States v. Uwaeme, 975 F.2d 1016,

1018 (4th Cir. 1992), and that this finding is not clearly erroneous.

Crump, 120 F.3d at 468. 

Accordingly, we affirm Simmons’ conviction and sentence. 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

4 UNITED STATES v. SIMMONS