U.S. v. Simmons
| Decision Date | 14 December 1998 |
| Docket Number | Docket No. 98-1244 |
| Citation | 164 F.3d 76 |
| Parties | UNITED STATES of America, Appellee, v. Enrique SIMMONS, Defendant-Appellant, Joseph Pratt, George Silva, Darren Rivero, Shawn Marino, Randolph Wallace, Kevin Williams, Leo Orvalle, Bernard Mack, Shariece Parsons, Alfredo Berenger, Ronald Green, Glen L. Roland, John Murray, Henry Hagins, Robert Wilson, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Cheryl G. Bader, Lincoln Square Legal Services, Inc., New York, N.Y. (James A. Cohen, of counsel), for Defendant-Appellant.
Meir Feder, Assistant United States Attorney, Southern District of New York, New York, N.Y. (Mary Jo White, United States Attorney; Dietrich L. Snell, Assistant United States Attorney, of counsel), for Appellee.
Before: VAN GRAAFEILAND, CABRANES, and NOONAN, * Circuit Judges.
The principal question presented is whether a sentencing court may consider admissions made during a guilty plea hearing on a count that is dismissed prior to sentencing.
Defendant Enrique Simmons appeals a sentence of imprisonment of 322 months imposed by the United States District Court for the Southern District of New York (John E. Sprizzo, Judge ) at a resentencing hearing on April 2, 1998. Simmons argues, inter alia, that the district court violated his right to due process of law by imposing a sentence enhancement without adequate proof, by failing to make required factual findings, and by improperly relying upon the grand jury indictment against him in imposing the sentence enhancement. For the reasons stated below, we affirm the sentence of imprisonment, and we remand for the sole purpose of correcting the amount of a special assessment imposed by the district court.
On November 3, 1989, Simmons pled guilty before Judge Pierre N. Leval to two counts of a multi-count indictment: count one, which charged him with participating in a conspiracy to distribute and possess with intent to distribute over 50 grams of cocaine base, in violation of 21 U.S.C. § 846; and count seventeen, which charged him with using and aiding and abetting the use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). During the course of his plea allocution, Simmons admitted he carried a firearm to protect himself in connection with his participation in a drug dealing conspiracy. On April 23, 1990, Judge Leval sentenced Simmons to consecutive terms of imprisonment of 262 months on count one and of 60 months on count seventeen, for a total prison sentence of 322 months.
On April 21, 1997, Simmons filed a pro se petition pursuant to 28 U.S.C. § 2255 seeking to vacate his count seventeen firearm conviction under 18 U.S.C. § 924(c) in light of the Supreme Court's intervening holding in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that "use" of a firearm under the statute meant active employment of the firearm in the course of committing a drug trafficking crime, not mere possession of it during that time. Judge Sprizzo, with the consent of the government, granted the petition, on the ground that, while count seventeen charged Simmons with the use of a firearm, Simmons had only admitted to carrying a firearm. Judge Sprizzo also ordered an amended presentence report ("PSR") and scheduled a resentencing hearing limited to Simmons' conviction under count one only.
In its new PSR, the Probation Office properly applied the version of the Sentencing Guidelines used at Simmons' first sentencing hearing and recommended the same base offense level and the same increases and reductions as it had in its first PSR. However, the report also recommended to Judge Sprizzo an additional two-level increase pursuant to U.S.S.G. § 2D1.1(b)(1), 1 because "[t]he defendant possessed a dangerous weapon during the commission of the offense." The base offense level and adjustments yielded a Guidelines range of 324 to 405 months, but the Probation Office recommended imprisonment of 322 months, the term imposed by Judge Leval at Simmons' first sentencing hearing. Although Simmons objected to the enhancement for possession of a firearm during his drug trafficking offense and requested a reduction for acceptance of responsibility, Judge Sprizzo, at a March 23, 1998 hearing, adopted the Probation Office's recommendations and imposed a sentence of imprisonment of 322 months. This appeal followed.
Simmons first argues that the district court erred in enhancing his sentence for possession of a firearm because the government did not produce sufficient evidence to support the enhancement. This argument is unavailing, as the government (and the district court in granting the enhancement) relied on Simmons' own admissions during his November 3, 1989 guilty plea hearing. The official transcript of the hearing before Judge Leval includes the following colloquy:
The Court: Now, with respect to Count 17 [charging violation of 18 U.S.C. § 924(c) ], did you have possession of any guns?
Defendant Simmons: That's what's in the overt act, but I never did.
The Court: Never had any possession of guns?
Defendant Simmons: No. Yes.
The Court: You are changing your answer?
Defendant Simmons: Yes.
The Court: You did have possession of guns?
Defendant Simmons: Yes.
The Court: Count 17 charges that on or before April 27th in 1989 you did use or aid and abet the use of a gun in relation to the conspiracy set forth in Count 1; is that correct?
Defendant Simmons: Yes.
The Court: Will you tell me a little bit about that.
Defendant Simmons: We was carrying the protectors.
The Court: You were carrying a gun as protection?
Defendant Simmons: Yes.
The Court: Was that to protect your drug dealing activity?
Defendant Simmons: To protect myself.
The Court: To protect yourself in connection with your drug dealing activity?
Defendant Simmons: Yes.
The Court: And you knew it was a gun?
Defendant Simmons: Yes.
The Court: I asked you before whether you were involved in a planned group activity for the sale of crack.
Defendant Simmons: Yes.
The Court: And your carrying this gun was to protect you in connection with that planned group activity of selling crack?
Defendant Simmons: Yes.
(emphasis added). Simmons contends his plea allocution was not admissible to support the sentence enhancement at his resentencing because his conviction on count seventeen had been vacated.
Generally, " " United States v. Brach, 942 F.2d 141, 144 (2d Cir.1991) (quoting U.S.S.G. § 6A1.3 (quotation marks and citation omitted)). It is true, of course, that Federal Rule of Evidence 410 prohibits the admission at trial of statements made in the course of a later-withdrawn guilty plea. However, that rule does not apply in the circumstances presented here. See Fed. R. Evid. 1101(d)(3) (). The statements at issue in this case were made at a guilty plea hearing under oath in open court and are not covered by privilege rules. We do not suggest here that the Rules of Evidence would permit the use at sentencing of potentially privileged statements, such as those made in the context of plea discussions with government counsel. See Fed. R. Evid. 410, 501, 1101(d)(3). In the circumstances of the instant case, we conclude that Simmons' challenge to the admissibility of the record of the plea allocution is without merit. 2
Defendant also contends that his guilty plea to count seventeen of the indictment was not knowingly and voluntarily made because it was based on a misapprehension of the law with regard to the government's need to establish his active use of a firearm under section 924(c). Therefore, defendant argues, the government's later use of his statements made in the course of that plea allocution violates his rights to due process of law and freedom from compelled self-incrimination.
Simmons' argument is contrary to the law of this Circuit. In a case involving a post-Bailey collateral challenge to a conviction following a guilty plea to a section 924(c) charge, we held that, because of a change in the law, the plea may be challenged as not having been knowing and voluntary. See Salas v. United States, 139 F.3d 322, 324 (2d Cir.1998). However, we made it clear in Salas that the facts admitted in the course of that guilty plea were not open to challenge. " 'By his plea, [defendant] waived a challenge to the facts themselves,...
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