     10-1651-cr
     United States v. Simmonds



                          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 A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20th day of June, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                RALPH K. WINTER,
 9                JOSEPH M. McLAUGHLIN,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14
15                    Appellee,
16
17                    -v.-                                        10-1651-cr
18
19
20       GEORGE SIMMONDS,
21
22                Defendant-Appellant.
23       - - - - - - - - - - - - - - - - - - - -X
24
25


                                                  1
 1   FOR APPELLANT:    JAMES P. EGAN, Assistant Federal Public
 2                     Defender (Melissa A. Tuohey, on the
 3                     brief), for Lisa Peebles, Acting Federal
 4                     Public Defender, Syracuse, NY.
 5
 6   FOR APPELLEE:     J. CAMPBELL BARKER (Brenda K. Sannes and
 7                     Miroslav Lovric, Assistant United States
 8                     Attorneys, Northern District of New York,
 9                     on the brief), Appellate Section,
10                     Criminal Division, U.S. Department of
11                     Justice, Washington, DC.
12
13        Appeal from a judgment of the United States District
14   Court for the Northern District of New York (McAvoy, J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the judgment of the district court be
18   AFFIRMED.
19
20        Defendant-Appellant George Simmonds appeals from the
21   judgment of conviction entered by the United States District
22   Court for the Northern District of New York (McAvoy, J.),
23   principally sentencing him to thirty months’ imprisonment
24   for knowingly submitting materially false statements on
25   three monthly supervised release reports, in violation of 18
26   U.S.C. § 1001(a)(3). We assume the parties’ familiarity
27   with the underlying facts, the procedural history, and the
28   issues presented for review.
29
30   [1] Simmonds challenges the sufficiency of the evidence
31   supporting the jury’s finding that his false statements were
32   material. A material statement for purposes of 18 U.S.C.
33   § 1001 has “‘a natural tendency to influence, or [is]
34   capable of influencing, the decision of the decisionmaking
35   body to which it was addressed.’” United States v. Gaudin,
36   515 U.S. 506, 509 (1995) (quoting Kungys v. United States,
37   485 U.S. 759, 770 (1988)). Simmonds argues that his false
38   statements--“yes” or “no” answers to questions regarding
39   compliance with supervised release conditions--were
40   incapable of affecting the probation officer’s investigation
41   because (1) the reports by releasees are inherently
42   unreliable, and (2) a probation officer would rely on other,
43   more reliable investigative tools.
44
45        At the threshold, we do not focus on whether an
46   investigator believes that a statement is true, because it
47   “would be exceedingly strange” to “mak[e] the existence of

                                  2
 1   this crime turn upon the credulousness of the federal
 2   investigator (or the persuasiveness of the liar).” Brogan
 3   v. United States, 522 U.S. 398, 402 (1998).
 4
 5        In any event, even if the probation officer relied
 6   exclusively on other investigative tools, a rational jury
 7   could have credited her testimony that she would have
 8   adjusted her investigation had Simmonds answered the
 9   questions truthfully; the evidence of materiality is thus
10   sufficient. See United States v. Madori, 419 F.3d 159, 166
11   (2d Cir. 2005).
12
13   [2] Simmonds challenges the substantive reasonableness of
14   his within-Guidelines 30-month sentence. A within-
15   Guidelines sentence is not presumptively reasonable, but “in
16   the overwhelming majority of cases, [it] will fall
17   comfortably within the broad range of sentences that would
18   be reasonable in the particular circumstances.” United
19   States v. Friedberg, 558 F.3d 131, 137 (2d Cir. 2009)
20   (internal quotation marks omitted). The district court
21   properly considered “the nature and circumstances of the
22   offense and the history and characteristics of the
23   defendant,” 18 U.S.C. § 3553(a)(1), which include his
24   criminal history and the conduct underlying the false
25   statements. Although Simmonds discounts such conduct as
26   “only illegal because he was on supervised release,”
27   Appellant’s Br. at 35, it was within the court’s broad
28   discretion to weigh the supervised release violations (and
29   the concealment thereof). See 18 U.S.C. § 3553(a)(2)(C)
30   (instructing a court to impose a sentence “to protect the
31   public from further crimes of the defendant”).
32
33        Simmonds’s sentence therefore “falls within the broad
34   range that can be considered reasonable under the totality
35   of the circumstances.” United States v. Jones, 531 F.3d
36   163, 174 (2d Cir. 2008).
37
38   We have considered Simmonds’s other arguments and conclude
39   that they lack merit. For the foregoing reasons, we hereby
40   AFFIRM the judgment of the district court.
41
42
43                              FOR THE COURT:
44                              CATHERINE O’HAGAN WOLFE, CLERK
45
46



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