United States v. Simons
| Decision Date | 25 October 2018 |
| Docket Number | CASE No. 17-4225 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEVIN SIMONS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0536n.06
NALBANDIAN, Circuit Judge. Kevin Vincent Simons appeals his within-Guidelines sentence of 105 months' imprisonment for aiding and abetting a bank robbery. For the following reasons, we AFFIRM.
On July 25, 2016, Simons went looking for a bank to rob. Two people joined him in this criminal endeavor: Alyssa Williams—his girlfriend—and a person known as "Lil Gary." Simons and Williams first went to the Dollar Bank in Maple Heights, Ohio, but decided not to rob it when they spotted a police officer inside. After meeting up with Gary, all three of them went to the U.S. Bank in Bedford. Simons was to act as the getaway driver and Gary as the lookout while Williams performed the robbery. But they abandoned that plan too because a camera caught sight of Williams and she was not in disguise.
Eventually, they found their way to the U.S. Bank in Maple Heights. Simons stayed in the car and acted as the lookout and getaway driver while Williams and Gary went into the bank. Before leaving the car, Gary gave Williams a black semiautomatic pistol, which she concealed underneath her pants. Once inside, Williams approached and gave one of the tellers a demand note that stated, 1 The teller complied and gave Williams approximately $2,893. Williams and Gary then rejoined Simons in the car and the three of them fled the area and split the proceeds.
After the robbery, a photo of Williams began to circulate on the news and internet, so she and Simons went to Conyers, Georgia where Simons' uncle lived. There, Simons robbed another bank on August 3, 2016—a Wells Fargo. As Williams did in Ohio, Simons used a demand note during this robbery while he concealed his mother's pistol in his pants. After fleeing the bank, Simons removed his clothes and left them and the gun behind. Later that day, police arrested Williams in Conyers as she tried to retrieve the firearm and clothing that Simons had discarded. She eventually admitted to being Simons' girlfriend and robbing the U.S. Bank in Ohio.
Meanwhile, police in Ohio were looking for Simons in connection with the Georgia robbery when they received information leading them to suspect he would be involved in a drug deal. On August 12th, Steubenville police located Simons in his car and activated their emergency lights. Upon seeing the lights, Simons reversed into one of the police cars but another police car blocked him and he was arrested. After searching Simons and his car, police found crack cocaine, a digital scale, a firearm, and suspected heroin, among other things. And in a later search of his residence, police found a bullet-proof vest, ammunition, a magazine containing live rounds, and a hotel flyer from Conyers. For this, Simons was convicted of a weapons count and sentenced to twenty-four months of imprisonment. He was also convicted of two drug possession counts andsentenced to twelve months each for those counts. All three sentences were to be served concurrently to each other. Later, Simons was also sentenced to twelve months of imprisonment, to run concurrently with his other sentences, for violating the terms of his supervised release.
On July 20, 2017, Simons pleaded guilty to a one-count indictment charging him in connection with the Ohio bank robbery. The indictment charged Simons with aiding and abetting a bank robbery in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 2. At Simons' sentencing hearing, the district court adopted the recommendations of the probation department's PSR, which calculated Simons' Guidelines sentencing range as 100 to 125 months based on a total offense level of 24 and a category VI criminal history. The sentencing court sentenced Simons to 105 months in prison to run consecutively to his undischarged state sentence. Simons now appeals this sentence.
Simons first challenges the district court's application of a sentencing enhancement to his base offense level under the Guidelines. "In our review of a district court's calculation of the applicable Guidelines, we generally review the district court's factual findings for clear error and its legal conclusions de novo." United States v. Taylor, 648 F.3d 417, 431 (6th Cir. 2011) (internal quotations and alterations omitted). Together, § 2B3.1(b)(2)(C) and § 1B1.3(a)(1)(B) provide for a five-level sentencing enhancement if it was "reasonably foreseeable" to a defendant that his accomplice would brandish or possess a firearm in the commission of a bank robbery. U.S.S.G § 1B1.3(a)(1)(B); § 2B3.1(b)(2)(C). Simons argues that the district court "failed to make this inquiry" before applying the enhancement.
But the district court did make this inquiry. At Simons' sentencing hearing, the court first asked whether he or his counsel objected to any paragraph in Simons' PSR. His counsel objected to paragraph twenty-two, which computed a five-level sentencing enhancement under§ 2B3.1(b)(2)(C) and § 1B1.3(a)(1)(B) "[s]ince a firearm was possessed by [Simons'] accomplice." The court overruled that objection, stating, "it was foreseeable that Ms. Williams . . . was armed," since Simons "transported Ms. Williams to the bank." (R. 30, Sentencing Hr'g Tr. at PageID #151.) Thus, the court asked whether Simons could reasonably foresee that Williams would be armed. And it found that he could.
Nor was the court's finding clearly erroneous, as Simons seems to argue. "A finding of fact will only be clearly erroneous when, although there may be some evidence to support the finding, 'the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)).
As mentioned, the court noted that Simons transported Williams to the bank robbery. In addition, Simons was in the car with Gary and Williams when Gary gave Williams the firearm to rob the bank. (R. 15, PSR at 5 ¶ 9.) And Simons reportedly wrote the demand note that Williams used during the bank robbery. (Id. at 4 ¶ 4 n.1.) Because "these facts were set out in the PSR and [Simons] did not object to them there . . . the district court would have been entitled to rely on them on that basis." United States v. Greer, 872 F.3d 790, 798 n.6 (6th Cir. 2017); see United States v. Whitelow, 596 F. App'x 382, 386 (6th Cir. 2015) ().
Considering "the entire evidence," we are not "left with the definite and firm conviction that a mistake has been committed." Accordingly, the district court did not clearly err in finding that Simons could have reasonably foreseen that Williams would be armed during the robbery.
Next, Simons makes two arguments regarding the district court's decision to run his sentence consecutively, instead of concurrently, to his undischarged state sentence. He raises both for the first time on appeal.
Simons' first argument is that the district court violated Rule 11 by failing to warn him that it could impose a consecutive sentence. Rule 11 governs what information the sentencing court must provide the defendant before accepting a guilty plea. See Fed. R. Crim. P. 11(b)(1)); United States v. Williams, 899 F.2d 1526, 1531 (6th Cir. 1990). We ordinarily review potential Rule 11 violations for harmless error. United States v. Martin, 668 F.3d 787, 791 (6th Cir. 2012) (citing Fed. R. Crim. P. 11(h)). But because Simons failed to timely object to this supposed violation, "the standard shifts to plain error and the burden is on . . . [Simons] to show that but for the error, he would not have pleaded guilty." Martin, 668 F.3d at 791 (citing United States v. Dominguez Benitez, 542 U.S. 74, 82-83 (2004)).
Here, Simons fails to show that the trial court committed error, much less plain error. He cites no cases in support of his position. And Rule 11 does not state anything expressly about consecutive sentencing. Moreover, this court has held at least twice that "there is no requirement in Fed. R. Crim. P. 11 that the court explicitly admonish a defendant that a sentence may be imposed consecutively." United States v. Ospina, 18 F.3d 1332, 1334 (6th Cir. 1994); United States v. Gaskin, 587 F. App'x 290, 297 (6th Cir. 2014).2 And several of our sister circuits haveheld in accord. See, e.g., United States v. Burney, 75 F.3d 442, 445 (8th Cir. 1996); United States v. Hamilton, 568 F.2d 1302, 1304-06 (9th Cir. 1978); United States v. Saldana, 505 F.2d 628, 628 (5th Cir. 1974); Paradiso v. United States, 482 F.2d 409, 415 (3rd Cir. 1973).
Simons has also not shown that he would not have pleaded guilty had he been informed otherwise. He makes no such argument in his brief, nor is there any indication of that from the record. Simons has therefore not shown that the district court plainly erred by failing to inform him that his sentence could be made to run consecutively to his undischarged state sentence.
Simons' second argument is that the district court did not sufficiently explain its reasons for imposing a consecutive sentence instead of a concurrent sentence. Normally, our review of a district court's decision to impose a consecutive sentence is for an abuse of discretion. United States v. Berry, 565 F.3d 332, 342 (6th Cir. 2009). But because Simons raises this argument for the first time on appeal, our review is for plain error. See United States v. Gibbs, 506 F.3d 479, 483 (6th Cir. 2007) (citing United States v....
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