     Case: 10-60064 Document: 00511299493 Page: 1 Date Filed: 11/19/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 19, 2010
                                     No. 10-60064
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TOMMY SIMMONS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 4:08-CR-66-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Tommy Simmons appeals the 60-month sentence
imposed following his guilty plea to possessing marijuana with intent to
distribute and to being a felon in possession of a firearm. The sentencing court
concluded that an above-guideline sentence was appropriate under 18 U.S.C. §§
3553(a) (1) & (2)(A), (B), (C) and it varied upward from the advisory sentencing
guidelines range.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-60064 Document: 00511299493 Page: 2 Date Filed: 11/19/2010

                                  No. 10-60064

      Simmons argues that his sentence is unreasonable because the sentencing
court abused its discretion by failing to give adequate weight to his attempts to
cooperate with authorities, and the court plainly erred by considering his prior
arrest record and a vacated conviction in connection with its decision to impose
an upward variance.       We agree that Simmons preserved his argument
concerning mitigating evidence; however, his challenge to the district court’s
consideration of his prior record is subject to plain error review because he did
not raise it at sentencing. See United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008); United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).
To show plain error, Simmons must show an error that is clear or obvious and
that affects his substantial rights. See Puckett v. United States, 129 S. Ct. 1423,
1429 (2009). If he makes such a showing, we have the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of the judicial proceedings. See id.
      It is clear from the record that the sentencing court considered Simmons’s
mitigating evidence, and he has not shown that the court failed to give this
evidence proper weight. United States v. Campos-Maldonado, 531 F.3d 337, 339
(5th Cir. 2008).    The sentencing court did not plainly err by considering
Simmons’s prior arrests in fashioning a non-Guidelines sentence because the
arrests do not “stand alone,” but are corroborated by his extensive history of
recidivism and unresolved pending charges.          See United States v. Lopez-
Velasquez, 526 F.3d 804, 806-07 (5th Cir. 2008). The district court mentioned
Simmons’s vacated conviction in passing during a lengthy discussion of the
reasons why his extensive criminal history warranted an upward variance. It
is not clear that the court based the upward variance, even in part, on the
vacated conviction; however, to the extent that it did so, consideration of the
vacated conviction was a clear and obvious error. See United States v. Reasor,
418 F.3d 466, 479 (5th Cir. 2005) (remanding for resentencing because grouping
rules potentially caused vacated convictions to affect defendant’s sentence).

                                         2
    Case: 10-60064 Document: 00511299493 Page: 3 Date Filed: 11/19/2010

                                No. 10-60064

      Assuming for purposes of argument that the sentencing court considered
the vacated conviction, Simmons cannot demonstrate that the error affected his
substantial rights. See United States v. Davis, 602 F.3d 643, 647-48 & n.6 (5th
Cir. 2010). In support of its decision to impose a non-guidelines sentence, the
sentencing court engaged in a “lengthy and weighted discussion” of Simmons’s
extensive criminal career to support its determination that an upward variance
was warranted under 18 U.S.C. § 3553(a).       See United States v. Williams,
___ F.3d ___, No. 09-30528, 2010 WL 3585424, at *10 (5th Cir. Sept. 16, 2010).
Even assuming that the district court impermissibly considered the vacated
sentence, Simmons cannot show that the error affected his substantial rights,
because the court based the variance on “other significant . . . permissible
factors.” See id. at *8-10.
      AFFIRMED.




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