15-3232-cr
United States of America v. Thomas Simmons, III

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
7th day of November, two thousand sixteen.

Present:
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                    Circuit Judges,
            JED S. RAKOFF,
                    District Judge.*
_____________________________________

UNITED STATES OF AMERICA,

                         Plaintiff-Appellee,

                 v.                                                     15-3232

THOMAS SIMMONS, III,

                  Defendant-Appellant.
_____________________________________


For Plaintiff-Appellee:                           Steven D. Clymer & Michael F. Perry, Assistant
                                                  United States Attorneys of Counsel, Syracuse, New
                                                  York


*
  Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting
by designation.


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For Defendant-Appellant:                   Melissa A. Tuohey,             Federal     Public   Defender,
                                           Syracuse, New York

       UPON       DUE     CONSIDERATION              WHEREOF         it    is     hereby    ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Thomas Simmons, III, appeals from a judgment of the United

States District Court for the Northern District of New York, entered on October 6, 2015,

revoking his term of supervised release and sentencing him to 24 months’ imprisonment

followed by a six-year term of supervised release.     We assume the parties’ familiarity with the

facts, procedural history, and specification of issues on appeal.

I.     Discussion

       Simmons first argues that the district court erred in imposing his sentence because the

court failed to articulate its reasons for the sentence imposed.          Because Simmons raised no

objection on procedural grounds at the time of sentencing, this Court reviews for “plain error.”

United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) (per curiam).

       Under 18 U.S.C. § 3553(c), a sentencing court “at the time of sentencing, shall state in

open court the reasons for its imposition of the particular sentence” and, in general, a district

court commits procedural error “if it fails adequately to explain its chosen sentence,” United

States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).       When sentencing a defendant for

a violation of supervised release, the court must consider a subset of the factors listed in

18 U.S.C. § 3553(a), including the “characteristics of the defendant” and the “nature and

circumstances of the offense.” See 18 U.S.C. §§ 3583(e), 3553(a).               The district court did not

explain its reasons for Simmons’s sentence except to note that the sentencing range pursuant to

the United States Sentencing Guidelines for the types of violations Simmons committed was 21

to 27 months. However, failure to state reasons for a sentence for a violation of supervised


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release is not plain error if the district court relies on the well-supported recommendation of the

Probation Office.    Cf. Espinoza, 514 F.3d at 212 (holding that failing to state reasons in open

court for a sentence is not “plain error” if the district court relies on an adequately supported

PSR); see also United States v. Townsend, 371 F. App’x 122, 126 (2d Cir. 2010) (summary

order).    Here, the court relied on (1) its finding, after an extensive evidentiary hearing, that

Simmons committed two Grade B violations and one Grade C violation, and (2) a “Violation

Worksheet” from the Probation Office setting out the Guidelines calculation that resulted in a

Guidelines range of 21 to 27 months.       Thus, it did not commit plain error.

          Next, Simmons argues that his sentence was excessive in length.1            In general, “[t]he

standard of review on the appeal of a sentence for violation of supervised release is [the same] as

for sentencing generally: whether the sentence imposed is reasonable.”                 United States v.

McNeil, 415 F.3d 273, 277 (2d Cir. 2005).          We will set aside sentences “only in exceptional

cases where the [district] court’s decision cannot be located within the range of permissible

decisions.”    Cavera, 550 F.3d at 189 (internal quotation marks omitted).               Here, only six

months after Simmons’s release, he traveled to Massachusetts (in violation of his supervised

release conditions) and committed credit card fraud on two separate occasions.             When police

tried to apprehend him, he initially lied about his involvement and fled. Although Simmons

complied with some other terms of his supervised release, a 24-month sentence was not

unreasonable.     Moreover, the advisory Guidelines range for his offenses was 21 to 27 months.

Though “we do not presume that a Guidelines sentence is reasonable, we have recognized that


1
  Simmons also failed to raise this objection in the district court. This Court “ha[s] not decided whether
plain error [or abuse of discretion] review applies to an unpreserved challenge to the substantive
reasonableness of a sentence.” United States v. Thavaraja, 740 F.3d 253, 258 n.4 (2d Cir. 2014).
Regardless, Simmons’s claim fails under either standard.


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‘in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the

broad range of sentences that would be reasonable in the particular circumstances.’” United

States v. Eberhard, 525 F.3d 175, 179 (2d Cir. 2008) (quoting United States v. Fernandez, 443

F.3d 19, 27 (2d Cir. 2006)).       “[T]he Guidelines, insofar as practicable, reflect a rough

approximation of sentences that might achieve § 3553(a)’s objectives.” Rita v. United States,

551 U.S. 338, 350 (2007).     The 24-month term imposed for Simmons’s violations sits within

the advisory Guidelines range, reinforcing our conclusion that the district court did not abuse its

discretion in imposing this sentence.

II.    Conclusion

       We have considered Simmons’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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