UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4534

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: February 7, 2011 Decided: March 17, 2011

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Stephanie A. Gallagher, LEVIN & GALLAGHER LLC, Baltimore, 

Maryland, for Appellant. William N. Nettles, United States 

Attorney, Sean Kittrell, Assistant United States Attorney, 

Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Arthur Jermain Simmons pled guilty to armed bank 

robbery (Count 2), 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 3), in violation of 18 U.S.C. § 924(c) 

(2006), and possession of a firearm and ammunition by a felon 

(Count 4), in violation of 18 U.S.C. § 922(g)(1) (2006). The 

district court sentenced Simmons as a career offender to 

concurrent terms of 202 months and 120 months on Counts 2 and 4, 

respectively, and a consecutive 60-month term on Count 3, 

totaling 262 months’ imprisonment. 

On appeal, counsel contends that the district court 

erred in finding that Simmons’s convictions under South 

Carolina’s blue light statute were crimes of violence for career 

offender purposes. Counsel also asserts that the district court 

erred in alternatively finding that Simmons is a de facto career 

offender. In light of this court’s decision in United States v. 

Rivers, 595 F.3d 558 (4th Cir. 2010), the Government concedes 

that Simmons’s South Carolina convictions are not crimes of 

violence. However, the Government argues that the district 

court did not plainly err in alternatively finding that Simmons 

is a de facto career offender. The Government also contends 

that the facts surrounding the convictions, Simmons’s 
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recidivism, and his thirty-three criminal history points support 

an upward departure.

Appellate review of a district court’s imposition of a 

sentence, “whether inside, just outside, or significantly 

outside the Guidelines range,” is for abuse of discretion. Gall 

v. United States, 552 U.S. 38, 41 (2007). This review requires 

consideration of both the procedural and substantive 

reasonableness of a sentence. Id. at 51. “Procedural 

reasonableness evaluates the method used to determine a 

defendant’s sentence.” United States v. Mendoza-Mendoza, 597 

F.3d 212, 216 (4th Cir. 2010). This court must assess whether 

the district court properly calculated the advisory Guidelines 

range, considered the 18 U.S.C. § 3553(a) (2006) factors, 

analyzed any arguments presented by the parties, and 

sufficiently explained the selected sentence. Gall, 552 U.S. at 

49-50; see also United States v. Lynn, 592 F.3d 572, 576 (4th 

Cir. 2010) (“[A]n individualized explanation must accompany 

every sentence.”); United States v. Carter, 564 F.3d 325, 330 

(4th Cir. 2009). “Substantive reasonableness examines the 

totality of the circumstances to see whether the sentencing 

court abused its discretion in concluding that the sentence it 

chose satisfied the standards set forth in § 3553(a).” MendozaMendoza, 597 F.3d at 216
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Because counsel preserved her procedural challenge to 

the sentence by objecting to Simmons’s classification as a 

career offender, this court’s review is for an abuse of 

discretion. See Lynn, 592 F.3d at 581, 583-84. If the district 

court procedurally erred and, thus, abused its discretion, this 

court must reverse unless the error is harmless. Id. at 581, 

585.

In Rivers, decided after the district court imposed 

sentence upon Simmons, this court determined that “under no 

circumstance is a violation of South Carolina’s blue light 

statute a violent felony.” 595 F.3d at 560. Since Simmons’s 

South Carolina convictions can no longer be considered predicate 

offenses under the career offender guideline provision, and he 

has no other qualifying convictions, Simmons is no longer a 

career offender under U.S. Sentencing Guidelines Manual (USSG) 

§ 4B1.1 (2008). Therefore, the district court procedurally 

erred in finding that § 4B1.1 applied.

The Government argues, however, that there is no error 

because the district court alternatively found that Simmons is a 

de facto career offender. The district court’s finding to this 

effect conflicts with circuit precedent. “For an upward 

departure to de facto career offender status to be permissible, 

‘the defendant has to have been convicted of two prior crimes 

each of which constitutes [a career offender predicate 
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offense.]’” United States v. Myers, 589 F.3d 117, 126 (4th Cir. 

2009) (alterations in original) (quoting United States v. 

Harrison, 58 F.3d 115, 118 (4th Cir. 1995)), cert. denied, 130 

S. Ct. 3306 (2010). Indeed, “[u]nder [the] de facto career 

offender method, the district court must conclude that the 

defendant’s underlying past criminal conduct demonstrates that 

the defendant would be sentenced as a career offender but for 

the fact that one or both of the prior predicate convictions may 

not be counted.” Harrison, 58 F.3d at 118 (internal quotation 

marks omitted). 

Simmons cannot be a de facto career offender because, 

after Rivers, none of his prior convictions had the potential to 

be counted as predicate offenses under § 4B1.1. See id. (“At a 

minimum, the defendant has to have been convicted of two prior 

crimes each of which constitutes either a crime of violence or a 

controlled substance offense.”). Although there may be 

alternative bases in the record to support an upward departure 

or variance, the district court did not adopt these bases as its 

rationale for the sentence imposed, and they may not be 

considered by this court. See Carter, 564 F.3d at 329-30 (“[A]n 

appellate court may not guess at the district court’s rationale, 

searching the record for statements by the Government or defense 

counsel or for any other clues that might explain a sentence.”).
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Accordingly, we vacate the sentence and remand for 

resentencing in light of our holding. We, of course, indicate 

no view as to the appropriate sentence to be imposed upon 

Simmons, leaving that determination, in the first instance, to 

the district court. 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.

VACATED AND REMANDED