501 F.3d 620 (6th Cir. 2007), 06-6173, United States v. Simmons

Docket Nº06-6173.
Citation501 F.3d 620
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Kossie Lamon SIMMONS, Defendant-Appellant.
Case DateAugust 29, 2007
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 620

501 F.3d 620 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kossie Lamon SIMMONS, Defendant-Appellant.

No. 06-6173.

United States Court of Appeals, Sixth Circuit.

August 29, 2007

Argued: Aug. 8, 2007.

Rehearing Denied Sept. 28, 2007.

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 05-20332-J. Daniel Breen, District Judge.

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[Copyrighted Material Omitted]

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ARGUED:

Craig V. Morton II, Morton & Germany, Memphis, Tennessee, for Appellant.

Cam Towers Jones, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

ON BRIEF:

Craig V. Morton II, Morton & Germany, Memphis, Tennessee, for Appellant.

Cam Towers Jones, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: KENNEDY and COOK, Circuit Judges; ALDRICH, District Judge[*]

OPINION

KENNEDY, Circuit Judge.

Kossie Lamon Simmons ("defendant") appeals his sentence imposed after he pleaded guilty to health care fraud in violation of 18 U.S.C. § 1347. After granting an eight-level departure requested by the government, calculating a guideline range of twenty-seven to thirty-three months, and considering the 18 U.S.C. § 3553(a) factors, the district court imposed a sentence of twenty-three months in prison as well as restitution. Mr. Simmons claims that his sentence was unreasonable because the district court did not consider the disparity between his sentence and that of his co-defendant's, Mr. Anthony Ross's, as he asserts the district court is required to based on 18 U.S.C. § 3553(a)(6). Because we conclude that § 3553(a)(6) refers to national uniformity as opposed to uniformity of co-defendants' sentences, we affirm the district court.

BACKGROUND

On August 10, 2006 defendant was sentenced for health care fraud under 18 U.S.C. § 1347. The base offense level was six under § 2B1.1(a)(2) of the Sentencing Guidelines. The level was increased to sixteen under § 2B3.1(b)(1) because the loss was greater than one million dollars but less than two and a half million dollars. The level was again increased to twenty-six under § 3B1.1(a) because Mr. Simmons was considered a leader of the criminal activity. This level was reduced by three for Mr. Simmons's acceptance of responsibility. The government had filed a § 5K1.1 motion on Mr. Simmons's behalf, and it asked for a five-level reduction because Mr. Simmons had significantly assisted the government. The district judge granted the government's motion and considered the § 3553(a) sentencing factors, and he determined that the offense level should be reduced from twenty-three to eighteen, primarily because of Mr. Simmons's significant assistance to the government. Mr. Simmons's criminal history category was I, so his guidelines range was twenty-seven to thirty-three months. The district judge sentenced Mr. Simmons to twenty-three months in prison, as well as $1,858,467 in restitution, a $100 special assessment, and three years of supervised release. On appeal defendant asserts that the district judge failed to consider 18 U.S.C. § 3553(a)(6), which directs the sentencing judge to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Mr. Simmons argues this factor was not considered because he received a sentence nearly twice that of his co-defendant, Mr. Anthony Ross.

Mr. Ross had been sentenced for the same health care fraud on December 7, 2005, more than eight months before Mr. Simmons was sentenced. The calculation of the Guidelines offense level for Mr. Ross was the same as Mr. Simmons's; Mr. Ross had a base level of six, which was

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increased to sixteen for the amount of the loss and then increased again to twenty-six because Mr. Ross also was a leader of the criminal activity. He also received a three-level reduction for his acceptance of responsibility. The district court granted the government's § 5K1.1 motion, and gave a five-level reduction because Mr. Ross too had significantly helped the government through his cooperation. After considering the § 3553(a) sentencing factors, the district court determined that the offense level of twenty-three should be reduced to twelve, or almost 50%, primarily because of Mr. Ross's very significant assistance to the government; Mr. Ross was the first to come forward, he gave the government information it would not have been able to discover absent his cooperation, and he had also implicated Mr. Simmons, who only decided to cooperate after being so implicated. Because Mr. Ross's criminal history category was II, the guidelines range for his sentence was twelve to eighteen months. The court then sentenced Mr. Ross to twelve months and one day in prison, as well as $1,704,865 in restitution, a $100 special assessment, and two years of supervised release.

ANALYSIS

I. Standard of Review

Historically the failure to object at sentencing meant that the defendant waived the issue for appeal, United States v. Cullens, 67 F.3d 123, 124 (6th Cir. 1995) (per curiam), and only plain error review under Rule 52(b) of the Federal Rules of Criminal Procedure would be available, United States v. Swanberg, 370 F.3d 622, 627 (6th Cir. 2004) (citing United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The government asks that we apply the plain error review standard here because the defendant did not raise his grounds for appeal at the sentencing hearing.

United States v. Bostic, however, preserves the issue for appeal despite a party's failure to object. In Bostic, this Circuit promulgated a new procedural directive for district judges to follow when imposing sentences: after the judge has pronounced the sentence, the judge must "ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised." 371 F.3d 865, 872 (6th Cir. 2004). If the judge fails to "clearly ask[] for objections" at this time, then the objections will not be considered forfeited on appeal. Id.; accord United States v. Clark, 469 F.3d 568, 570 (6th Cir. 2006). It is clear from the record that the district judge did not follow this procedural directive. J.A. 105-07.

To determine whether Bostic preserves the issue for appeal requires clarification of what the defendant is actually asserting in this case. He claims that the district court failed to consider the disparity between his sentence and that of a co-defendant's, and he points to § 3553(a)(6) as authority for the proposition that a district court is required to engage in such a consideration. Considering uniformity between co-defendants' sentences, however, is not required by the Sentencing Guidelines or the § 3553(a) factors.

Subsection 3553(a)(6) is concerned with national disparities among the many defendants with similar criminal backgrounds convicted of similar criminal conduct. See United States v. Poynter, 495 F.3d 349, 351-56 (6th Cir.2007); United States v. LaSalle, 948 F.2d 215, 218 (6th Cir.1991); United States v. Parker, 912 F.2d 156, 158 (6th Cir.1990). It is not concerned with disparities between one individual's sentence and another individual's sentence, despite the fact that the two are co-defendants. LaSalle, 948 F.2d at 218; United States v. Gessa, 944 F.2d 265, 270 (6th Cir.1991)

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Parker, 912 F.2d at 158. Instead, § 3553(a)(6) is there to ensure nationally uniform sentences among like offenders so as to leave room to depart downward for those defendants who are truly deserving of leniency. Poynter, 495 F.3d at 351-56; United States v. Borho, 485 F.3d 904, 910 (6th Cir.2007); United States v. Husein, 478 F.3d 318, 331, 333-34 (6th Cir.2007). Section 3553(a)(6)'s national concern has been noted by a great majority of the circuits. United States v. Dowdy, 216 Fed.Appx. 178, 180-81 (3d Cir.2007) (citing United States v. Seligsohn, 981 F.2d 1418, 1428 (3d Cir.1992)); United States v. Saez, 444 F.3d 15, 18 (1st Cir.2006); United States v. Newsom, 428 F.3d 685, 689 (7th Cir.2005); United States v. McMutuary, 217 F.3d...

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144 practice notes
  • United States v. Wardle, 020221 FED6, 19-5998
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • February 2, 2021
    ...when a defendant makes a particular argument . . . [or] a factor is particularly relevant."2United States v. Simmons, 501 F.3d 620, 625 (6th Cir. Wardle's argument fails; the record shows that the district court appropriately considered the sentencing factors a......
  • 771 F.Supp.2d 961 (N.D.Iowa 2011), CR10-4025-MWB, United States v. Vandebrake
    • United States
    • Federal Cases United States District Courts 8th Circuit
    • February 8, 2011
    ...opposed to uniformity of co-defendant's sentences. See United States v. Frias, 521 F.3d 229, 236 (2d Cir.2008); United States v. Simmons, 501 F.3d 620, 622 (6th Cir.2007); United States v. Parker, 462 F.3d 273, 277 (3d Cir.2006); United States v. Candia, 454 F.3d 468, 476 (5th Cir.2006); Un......
  • United States v. Bivings, 052009 TNEDC, 3:06-CR-147
    • United States
    • Federal Cases United States District Courts 6th Circuit Eastern District of Tennessee
    • May 20, 2009
    ...of similar criminal conduct." United States v. Presley, 547 F.3d 625, 631 (6th Cir. 2008) (quoting United States v. Simmons, 501 F.3d 620, 623 (6th Cir.2007)); see also United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008). The Court may also consider disparities between co-defe......
  • United States v. Cargnino, 072612 OHNDC, 4:11 CR 3
    • United States
    • Federal Cases United States District Courts 6th Circuit Northern District of Ohio
    • July 26, 2012
    ...with similar criminal backgrounds convicted of similar criminal conduct.'" Presley, 547 F.3d at 631 (citing United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007)) (emphasis added). Because Section 3553(a)(6) is not concerned with disparities between the sentences of co-defendants......
  • Request a trial to view additional results
144 cases
  • United States v. Wardle, 020221 FED6, 19-5998
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • February 2, 2021
    ...when a defendant makes a particular argument . . . [or] a factor is particularly relevant."2United States v. Simmons, 501 F.3d 620, 625 (6th Cir. Wardle's argument fails; the record shows that the district court appropriately considered the sentencing factors a......
  • 771 F.Supp.2d 961 (N.D.Iowa 2011), CR10-4025-MWB, United States v. Vandebrake
    • United States
    • Federal Cases United States District Courts 8th Circuit
    • February 8, 2011
    ...opposed to uniformity of co-defendant's sentences. See United States v. Frias, 521 F.3d 229, 236 (2d Cir.2008); United States v. Simmons, 501 F.3d 620, 622 (6th Cir.2007); United States v. Parker, 462 F.3d 273, 277 (3d Cir.2006); United States v. Candia, 454 F.3d 468, 476 (5th Cir.2006); Un......
  • United States v. Bivings, 052009 TNEDC, 3:06-CR-147
    • United States
    • Federal Cases United States District Courts 6th Circuit Eastern District of Tennessee
    • May 20, 2009
    ...of similar criminal conduct." United States v. Presley, 547 F.3d 625, 631 (6th Cir. 2008) (quoting United States v. Simmons, 501 F.3d 620, 623 (6th Cir.2007)); see also United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008). The Court may also consider disparities between co-defe......
  • United States v. Cargnino, 072612 OHNDC, 4:11 CR 3
    • United States
    • Federal Cases United States District Courts 6th Circuit Northern District of Ohio
    • July 26, 2012
    ...with similar criminal backgrounds convicted of similar criminal conduct.'" Presley, 547 F.3d at 631 (citing United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007)) (emphasis added). Because Section 3553(a)(6) is not concerned with disparities between the sentences of co-defendants......
  • Request a trial to view additional results