U.S. v. Simmons
| Decision Date | 03 September 2003 |
| Docket Number | Docket No. 02-1172. |
| Citation | 343 F.3d 72 |
| Parties | UNITED STATES of America, Appellee, v. Alan SIMMONS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
David V. Kirby, First Assistant United States Attorney (Peter Hall, United States Attorney, and Gregory L. Waples, Assistant United States Attorney, on the brief), Burlington, Vermont, on behalf of the Appellee.
Elizabeth D. Mann, Assistant Federal Public Defender, Burlington, Vermont, on behalf of Defendant-Appellant.
Before: JACOBS and POOLER, Circuit Judges, and GLEESON, District Judge.1
Alan Simmons appeals from a judgment convicting him on his pleas of guilty to knowingly transporting a minor in foreign commerce for the purpose of engaging in illegal sexual conduct (Count One), and to using a minor to engage in sexually explicit conduct for the purpose of producing a videotape of the conduct (Count Two), in violation of 18 U.S.C. § 2423(a) and 18 U.S.C. § 2251(a), respectively. Simmons was sentenced principally to consecutive prison terms totaling 168 months, to be followed by three years of supervised release. He makes two arguments on appeal: (1) that the district court erred in upwardly departing to Criminal History Category IV based on Simmons's record of convictions in Canada; and (2) that the district court erred by imposing, as a condition of supervised release, a prohibition on the possession or viewing of any "pornographic material."
Finding no merit in either of Simmons's arguments on appeal, we affirm.
In December of 1992, Simmons, who was then 41 years old, took a ski trip from his home in Ontario, Canada to Jay Peak in Vermont. He brought along his two sons, who were 9 and 12 years old, and 15-year-old B.B., whom Simmons had coached in a girls' hockey league and whose mother Simmons had dated. Following an afternoon of skiing, the four ate dinner and retired to a hotel room to watch videos. Simmons prepared soft drinks for the children, who did not wake up until approximately noon the next day. This was unusual for B.B., who was an early riser. Although she noticed that she was tired, she did not suspect anything out of the ordinary.
Four years later, while executing a search warrant at Simmons's home in connection with an alcohol and tobacco smuggling case, Canadian authorities seized a 38-minute videotape of Simmons sexually abusing an apparently unconscious adolescent female. The tape begins with the female lying prone on a bed, her sweatshirt pulled up to expose her breasts. Then Simmons is seen pulling down the girl's sweatpants and manipulating her left leg several times to expose her genital area to the camera. The camera focuses in on the victim's genital area, which Simmons can be seen touching with his fingers, his lips and his penis. The videotape concludes with Simmons masturbating and ejaculating onto the victim's pubic hair. Throughout the videotape, the victim appears to be unconscious.
Subsequent investigation revealed that the videotape was made in the Vermont hotel room in 1992, and that the victim was B.B. Another videotape seized by the Canadian authorities from Simmons's home showed him engaging in various sexual acts with seemingly unconscious adult females. Several women who dated Simmons reported that they suffered blackouts after consuming drinks he prepared, and woke up hours later in sexually compromising positions.
On December 19, 1996, a federal grand jury in Vermont returned an indictment charging Simmons with transporting a minor in foreign commerce for the purpose of engaging in illegal sexual activity, in violation of 18 U.S.C. § 2423, and with sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a). Simmons pled guilty to both counts on September 24, 2001, and he was sentenced on March 5, 2002.
The presentence report ("PSR") placed Simmons in Criminal History Category I despite his many prior convictions because they were all obtained in Canadian courts. See U.S.S.G. § 4A1.2(h). According to the PSR, Simmons's criminal history consisted of the following convictions and sentences:
In its presentencing memorandum, the government sought an upward departure to Criminal History Category V, asserting that category to be the one Simmons would have been in had his convictions occurred in the United States. Simmons countered that there was no justification for an upward departure, and even if there were, a correct tally of points based on the foreign convictions would place Simmons in Criminal History Category III.
At the sentencing hearing on March 5, 2002, the district court first observed as follows: "As I understand it from the circuit what I have to do is go through each category and consider whether that category adequately reflects the seriousness of the defendant's record." (Tr. at 51.)2 It further observed "that the convictions of the defendant in Canada are very similar to convictions here in this country." (Id.) The appropriate criminal history category for sentencing, the court concluded, should be the category that would apply if the foreign convictions had occurred in the United States.
Addressing each of Simmons's convictions separately, the district court chose not to consider the first three, which occurred in 1971 and 1972, because they were too old and would not be counted even if they had occurred in the United States. See U.S.S.G. § 4A1.2(e). The court accorded one criminal history point to the April 1985 conviction for possessing an unregistered restricted weapon. It declined to consider the 1985 conviction for "Breach of Recognizance." Because there was no background information available for that charge, Simmons was given the "benefit of the doubt" as to its underlying facts. (Tr. at 53.)
The June 1985 convictions for assault and extortion, for which Simmons received concurrent 18-month sentences, were counted by the district court despite the absence of explanatory information about them in the PSR. Reasoning that "these seem to be offenses for which it's not difficult to figure out what happened" (Id. at 54), the court accorded a total of three criminal history points to them.
The court added one point for the 1996 conviction for uttering threats and two points for the May 1997 conviction for unlawful possession of imported goods. As for the 1997 conviction for possession of child pornography, no points were allocated because it was based on the same videotape on which Simmons's abuse of B.B. was recorded. The court did count, however, the 1997 convictions for sexual assault and possession of a prohibited weapon, according a total of two points to them in calculating the departure.
Because the total points allocated to the Canadian convictions was nine, the district court departed upward under U.S.S.G. § 4A1.3 to the corresponding category, Criminal History Category IV. It summarized its methodology as follows: (Tr. at 56.)
With a total offense level of 32 and an upward departure to Criminal History Category IV, the applicable sentencing range was 168-210 months. As stated above, Simmons was sentenced to consecutive terms of imprisonment totaling 168 months.
The district court imposed a three-year term of supervised release to follow the 168-month prison term, with the following special condition: "The defendant shall not possess or view any pornographic material, including videotapes, films, magazines, books and photographs, nor shall he subscribe to `adult-only' movie channels." (J., Sheet 3C — Supervised Release.)3
Section 4A1.1 of the United States Sentencing Guidelines is a sentencing judge's starting point for calculating the criminal history category of a defendant. The section prescribes, inter alia, the allocation of criminal history points to "each prior sentence," with the number of points per sentence depending on the length of the prison term, if any, imposed as part of the sentence. U.S.S.G. § 4A1.1(a), (b), (c). The total number of criminal history points places the defendant in one of the six criminal history categories that comprise the horizontal axis of the Guidelines' sentencing table. U.S.S.G., Ch. 5, Pt. A.
Not all of a defendant's prior sentences, however, constitute a ...
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