            Case: 16-14700    Date Filed: 09/20/2017   Page: 1 of 8


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-14700
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:15-cr-00048-MW-CAS-9



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JOHN WALTER SIMMONS,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (September 20, 2017)



Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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      John Walter Simmons, proceeding pro se, appeals his total 168-month

sentence, imposed below the guideline range, after pleading guilty to conspiracy to

commit wire fraud, in violation of 18 U.S.C. §§ 1343, 1349 (Count 1); aiding and

abetting theft of government funds, in violation of 18 U.S.C. §§ 641, 2 (Count 10);

aiding and abetting aggravated identity theft, in violation of 18 U.S.C.

§§ 1028A(a)(1), 2 (Count 11); and possession of a firearm and ammunition by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count 14).

Simmons asserts the district court imposed a procedurally unreasonable sentence

by improperly calculating his guideline range. He contends the district court

imposed a substantively unreasonable sentence because his cooperation with the

Government warranted a lower sentence. After review, we affirm.

                     I. PROCEDURAL REASONABLENESS

      The reasonableness of a sentence is generally reviewed under a deferential

abuse of discretion standard; we first ensure that the district court “committed no

significant procedural error.” Gall v. United States, 552 U.S. 38, 51 (2007).

“When reviewing for procedural reasonableness, we ensure that the district court:

(1) properly calculated the Guidelines range; (2) treated the Guidelines as advisory;

(3) considered the 18 U.S.C. § 3553(a) factors; (4) did not select a sentence based

on clearly erroneous facts; and (5) adequately explained the chosen sentence.”

United States v. Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010). The burden of


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establishing unreasonableness belongs to the party challenging the sentence. See

id.

       Under the Sentencing Guidelines, a defendant should be held responsible for

the loss “the defendant knew or, under the circumstances, reasonably should have

known, was a potential result of the offense.” U.S.S.G. § 2B1.1, comment.

(n.3(A)(iv)). The loss amount is the “greater of actual loss or intended loss.” Id. at

(n.3(A)). A district court “need only make a reasonable estimate of the loss, given

the available information.” United States v. Baldwin, 774 F.3d 711, 727 (11th Cir.

2014) (quotation omitted). A district court may use undisputed statements in the

PSI or evidence presented at the sentencing hearing to make its factual findings.

Id. “A defendant may be held responsible for the reasonably foreseeable acts of

his co-conspirators in furtherance of the conspiracy.” Id.

       The district court did not commit procedural error when calculating

Simmons’ guideline range. 1 The only specific guideline enhancement Simmons



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           Simmons’ argument he was incorrectly sentenced as a career offender is meritless as
he was not sentenced as a career offender. Liberally construed, Simmons may be attempting to
challenge his base offense level for Count 14, which was placed at 24 pursuant to U.S.S.G.
§ 2K2.1(a)(2) because he had previously sustained at least 2 felony convictions for a controlled
substance offense. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)
(“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and
will, therefore, be liberally construed.”). However, the PSI based Simmons’ sentence on his base
level for Counts 1 and 10, so the calculations for Count 14 did not affect his guideline range.
        Further, the district court did not commit procedural error in calculating Simmons’
criminal history category because it ruled in Simmons’ favor on his objection at the sentencing
hearing and reduced his criminal-history points accordingly. Additionally, the Supreme Court’s
ruling in Johnson v. United States, 135 S. Ct. 2551 (2015), is not applicable to Simmons’
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challenges on appeal is the enhancement base on a loss amount of more than

$9,500,000. The district court did not clearly err in finding the full intended loss of

the conspiracy was reasonably foreseeable to Simmons. Baldwin, 774 F.3d at 727

(providing the district court’s determination of the loss amount is a factual finding

reviewed for clear error). The undisputed facts in the PSI and the evidence

presented at sentencing showed Simmons had recruited other conspirators and

directed them via text message to send him personal identifying information (PII)

to be used to file fraudulent tax returns or Supplemental Nutrition Assistance

Program (SNAP) applications or to deliver to him debit cards with proceeds from

the tax fraud. His own statements and the statements of his niece showed he was

involved from 2011 through 2014. The evidence also showed Simmons had tens

of thousands of dollars to spend as a result of the fraud. This evidence is sufficient

to support the district court’s findings that Simmons understood the full extent of

the conspiracy and the entire intended loss amount was reasonably foreseeable to

him. Therefore, there was no clear error in the court’s findings, or in the

application of a 20-level enhancement to Simmons’ guideline range based on the

intended loss amount.




sentence because he was not designated an armed career criminal or sentenced under the Armed
Career Criminal Act.
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                      II. SUBSTANTIVE REASONABLENESS

         The district court must impose a sentence that is sufficient, but not greater

than necessary, to comply with the purposes listed in § 3553(a)(2), including the

need to reflect the seriousness of the offense, promote respect for the law, provide

just punishment for the offense, deter criminal conduct, and protect the public from

the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). In imposing

a particular sentence, the court must also consider the nature and circumstances of

the offense, the history and characteristics of the defendant, the types of sentences

available, the applicable guideline range, the pertinent policy statements of the

Sentencing Commission, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7). However, a

court can abuse its discretion when it (1) fails to consider relevant factors that were

due significant weight, (2) gives an improper or irrelevant factor significant

weight, or (3) commits a clear error of judgment by balancing the proper factors

unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en

banc).

         Under U.S.S.G. § 5K1.1, the government may ask the district court to enter a

downward departure for the defendant’s substantial assistance with the

investigation and prosecution of crime. United States v. Gonsalves, 121 F.3d 1416,

1419 (11th Cir. 1997). “The district court may not make such a downward


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departure without the government’s request, but the court’s decision whether to

enter that departure upon the government’s request is generally not reviewable [on

appeal].” Id. However, we may review the district court’s determination that

failing to file such a motion was not a breach of the defendant’s plea agreement.

Id. District courts may review a prosecutor’s decision not to file a U.S.S.G.

§ 5K1.1 motion and remedy that refusal if the prosecutor’s decision was based on

an unconstitutional motive, such as race or religion. Wade v. United States, 504

U.S. 181, 185-86 (1992). Judicial review in this context is “appropriate only when

there is an allegation and a substantial showing that the prosecution refused to file

a substantial assistance motion because of a constitutionally impermissible

motivation.” United States v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009)

(quotation omitted).

      Insofar as Simmons’ argument can be construed as challenging the

Government’s failure to file a U.S.S.G. § 5K1.1 motion, Simmons failed to make

the requisite showing, or even to allege, the Government had an unconstitutional

motive or breached the plea agreement. Gonsalves, 121 F.3d at 1419; Wade, 504

U.S. at 185-86.

      Further, Simmons does not demonstrate his sentence was substantively

unreasonable in light of the record and the sentencing factors. See Irey, 612 F.3d

at 1189. The mitigating fact Simmons highlights—his cooperation with the


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Government—was explicitly considered by the district court at the sentencing

hearing. The district court used this fact and others, including sentencing

disparities among Simmons and his co-defendants and the potential overstatement

of Simmons’ criminal history, and concluded the sentencing factors warranted a

sentence below the guideline range. However, the district court concluded that

because of other sentencing factors, such as the scale of the offense and Simmons’

aggravating role in the conspiracy, Simmons still warranted a significant sentence.

      The sentencing factors are meant to give the district court discretion to craft

sentences based on the individual record in each case, which is what the district

court did here. See United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)

(providing the weight given to any specific § 3553(a) factor is committed to the

sound discretion of the district court). That Simmons’ sentence was below the

guideline range and below the statutory maximum are further indicators of

reasonableness. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)

(stating although we do not presume a sentence falling within the guideline range

is reasonable, we ordinarily expect such a sentence to be reasonable); United States

v. Dougherty, 754 F.3d 1353, 1362 (11th Cir. 2014) (explaining a sentence below

the statutory maximum is another indicator of reasonableness). The court’s

conclusions are supported by the record, and the court did not make a clear error of




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judgment in balancing the sentencing factors. See Irey, 612 F.3d at 1189.

Accordingly, the court did not abuse its discretion and we affirm.

      AFFIRMED.




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