            Case: 11-15440     Date Filed: 10/02/2012    Page: 1 of 10

                                                              [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 11-15440
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 2:10-cr-14063-KMM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

WILLIAM FRANK SIMMONS, JR.,

                                                              Defendant-Appellant.

                          ________________________

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

                                (October 2, 2012)

Before HULL, FAY and ANDERSON, Circuit Judges.

PER CURIAM:

     After pleading guilty to failure to surrender for service of a sentence, in
              Case: 11-15440    Date Filed: 10/02/2012   Page: 2 of 10

violation of 18 U.S.C. § 1346(a)(2), William Simmons, Jr. appeals his 21-month

sentence. On appeal, Simmons argues that his 21-month federal sentence is

substantively unreasonable because the district court imposed it consecutively to

his state sentence. After review, we affirm.

                           I. BACKGROUND FACTS

A.    Prior 2010 Fraud Conspiracy Sentence

      In 2010, in federal court, Simmons was convicted of conspiracy to commit

wire, mail and bank fraud and was sentenced to 21 months’ in prison. On June 14,

2010, Simmons failed to report to the U.S. Marshal’s Office to begin serving his

21-month sentence. As a result, a warrant was issued for Simmons’s arrest.

B.    Failure-to-Surrender Charge

      On June 24, 2010, a grand jury charged Simmons with the instant offense of

failure to surrender. On July 22, 2010, the district court transferred the new

criminal case to the clerk’s fugitive file until Simmons was apprehended.

C.    State Conviction and Sentence

      On October 21, 2010, Simmons was arrested on a Florida state charge of

failing to return a leased vehicle. Simmons was convicted of that state offense on

July 21, 2011. Because Simmons was a habitual felony offender under Florida

law, the state court imposed an eight-year sentence. On August 12, 2011,

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Simmons was still serving this eight-year state sentence when he was arrested on

the instant federal failure-to-surrender charge.

C.    Federal Plea and Sentencing

      On September 7, 2011, Simmons pled guilty in federal court to the failure-

to-surrender charge. The Presentence Investigation Report (“PSI”) calculated his

total adjusted offense level as 9. The PSI scored 27 criminal history points based

on Simmons’s extensive criminal history. In addition to his state conviction for

failing to return a leased vehicle and his federal conviction for conspiracy to

commit wire, mail and bank fraud, Simmons’s criminal history included numerous

theft-related convictions (such as grand theft, robbery, burglary, forging checks

and petit theft), trespass, battery and possession of marijuana.

      Simmons’s criminal history category of VI and total offense level of 9

yielded an advisory guidelines range of 21 to 27 months’ imprisonment.

Simmons’s statutory maximum sentence was ten years. See 18 U.S.C.

§ 3146(b)(1)(A)(i). Simmons initially made one objection to the PSI’s criminal

history score, but withdrew the objection after the PSI was revised.

      At sentencing, Simmons requested a 21-month sentence, at the low end of

advisory guidelines range of 21 to 27 months, for his failure-to-surrender

conviction. In mitigation, Simmons noted his: (1) history of mental health issues,

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including a commitment under the Baker Act at age 17, a major depressive

disorder and a prescription for Zoloft; (2) fifteen-year history of drug addiction, as

well as mental illness, which explained in part his extensive criminal history; (3)

need to care for his wife and two young children; and (4) lack of new criminal

conduct while out of prison. Simmons also addressed the district court and

explained that he did not surrender for his federal fraud conspiracy sentence back

in 2010 because he needed more time to make sure his family was “straight” and

then turned himself in.

       Simmons’ counsel acknowledged that 18 U.S.C. § 1346(b)(2) required the

district court to run his new federal sentence consecutive to his other, 21-month

federal sentence for fraud conspiracy, but asked the district court to exercise its

discretion under U.S.S.G. § 5G1.3 and run the new sentence concurrent to his

undischarged eight-year state sentence. The district court inquired into the reason

for the lengthy state sentence, and defense counsel suggested the sentence was

because of Simmons’ extensive criminal record and habitual offender status. The

district court then reviewed the undisputed factual allegations in the Presentence

Investigation Report (“PSI”) relating to the state offense.1


       1
         According to the PSI, Simmons rented a vehicle on September 9, 2009 and then failed to
return it to the rental agency on September 16, 2009. Despite attempts to contact Simmons, he
never returned the vehicle, which was found abandoned on October 13, 2009. The vehicle was

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       The district court sentenced Simmons to 21 months’ imprisonment, at the

low end of the advisory range, to be served consecutive to both the eight-year state

sentence and the 21-month federal sentence (on his fraud conspiracy conviction).

The district court stated that it had “considered the statements of all parties, the

presentence report which contains the advisory guidelines and the statutory

factors.” Simmons filed this appeal.

                                       II. DISCUSSION

       We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007). We first consider whether the district court committed any significant

procedural error and then whether the sentence is substantively unreasonable

under the 18 U.S.C. § 3553(a) sentencing factors and the totality of the

circumstances.2 United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

The abuse of discretion standard “allows a range of choice for the district court, so

long as that choice does not constitute a clear error of judgment.” United States v.

Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc), cert. denied, ___ U.S. ___,



valued at approximately $20,000, and rental fees totaled $1,786.13. Simmons was arrested for
the state charge on January 22, 2010, while already incarcerated in the St. Lucie County Jail, and
then again on October 21, 2010, after he failed to appear in court on the state charge.
       2
           Simmons does not raise any procedural sentencing error.

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131 S. Ct. 1813 (2011) (internal quotation marks omitted). We ordinarily expect a

sentence within the guidelines range to be reasonable. United States v. Talley,

431 F.3d 784, 788 (11th Cir. 2005). The party challenging the sentence bears the

burden of proving the sentence is unreasonable in light of the record and the 18

U.S.C. § 3553(a) factors. Id.3

       The parties agree that 18 U.S.C. § 3146(b)(2) required the district court to

run Simmons’s new 21-month sentence consecutive to his old 21-month sentence

for the underlying federal fraud conspiracy offense. See 18 U.S.C. § 3146(b)(2)

(“A term of imprisonment imposed under this section shall be consecutive to the

sentence of imprisonment for any other offense.”). Thus, the only issue on appeal

is whether the district court’s decision to impose Simmons’s 21-month federal

sentence consecutive to his eight-year state sentence rendered that 21-month

sentence substantively unreasonable.4

       3
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
       4
        The government contends that Simmons’s federal sentence is reasonable because
§ 3146(b)(2)’s plain language required the district court to run Simmons’s 21-month federal
sentence consecutive to his eight-year state sentence. We need not resolve this question because
Simmons’s 21-month consecutive sentence to his state sentence is reasonable whether it was

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       “[A] federal court is authorized to impose a federal sentence consecutive to

a state sentence.” United States v. Ballard, 6 F.3d 1502, 1506 (11th Cir. 1993)

(concluding that the district court could do so even if the state court sentence had

not yet been imposed). Our review as to “the appropriateness of a consecutive

sentence,” is for an abuse of discretion. United States v. Andrews, 330 F.3d 1305,

1307 (11th Cir. 2003); see also United States v. Covington, 565 F.3d 1336, 1346

(11th Cir. 2009).

       Under 18 U.S.C. § 3584, “if a term of imprisonment is imposed on a

defendant who is already subject to an undischarged term of imprisonment,” the

district court has the discretion to run the prison term “concurrently or

consecutively.” 18 U.S.C. § 3584(a). Also, “[m]ultiple terms of imprisonment

imposed at different times run consecutively unless the court orders that the terms

are to run concurrently.” Id. In deciding whether to impose a concurrent or

consecutive term, § 3584 requires the district court to “consider, as to each offense

for which a term of imprisonment is being imposed,” the § 3553(a) factors. Id.

§ 3584(b).

       In addition, “Section 5G1.3 is the relevant Guidelines provision in

determining whether to impose a consecutive sentence on a defendant subject to


mandatory or discretionary.

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an undischarged term of imprisonment.” United States v. Bradford, 277 F.3d

1311, 1317 (11th Cir. 2002). Section 5G1.3 states:

      (a) If the instant offense was committed while the defendant was serving
      a term of imprisonment (including work release, furlough, or escape
      status) or after sentencing for, but before commencing service of, such
      term of imprisonment, the sentence for the instant offense shall be
      imposed to run consecutively to the undischarged term of imprisonment.

      (b) If subsection (a) does not apply, and a term of imprisonment resulted
      from another offense that is relevant conduct to the instant offense of
      conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of
      § 1B1.3 (Relevant Conduct) and that was the basis for an increase in the
      offense level for the instant offense under Chapter Two (Offense
      Conduct) or Chapter Three (Adjustments), the sentence for the instant
      offense shall be imposed as follows:

            (1) the court shall adjust the sentence for any period of
            imprisonment already served on the undischarged term of
            imprisonment if the court determines that such period of
            imprisonment will not be credited to the federal sentence by the
            Bureau of Prisons; and

            (2) the sentence for the instant offense shall be imposed to run
            concurrently to the remainder of the undischarged term of
            imprisonment.

      (c) (Policy Statement) In any other case involving an undischarged term
      of imprisonment, the sentence for the instant offense may be imposed to
      run concurrently, partially concurrently, or consecutively to the prior
      undischarged term of imprisonment to achieve a reasonable punishment
      for the instant offense.




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U.S.S.G. § 5G1.3.5

       The commentary to § 5G1.3(c) explains that the district court should try “to

achieve a reasonable incremental punishment for the instant offense and avoid

unwarranted disparity” by considering the § 3553(a) factors, the length of the

undischarged sentence, the time already served and likely to be served on the

undischarged sentence, “the fact that the prior undischarged sentence may have

been imposed in state court,” and any other circumstances relevant to determining

an appropriate sentence. U.S.S.G. § 5G1.3, cmt. n.3(A). Both 18 U.S.C. § 3584

and U.S.S.G. § 5G1.3 “evince a preference for consecutive sentences when

imprisonment terms are imposed at different times.” Ballard, 6 F.3d at 1506.

       Here, Simmons has not shown that his 21-month sentence, run consecutive

to his eight-year state sentence, was unreasonable. The record reflects that the

district court considered the § 3553(a) factors and Simmons’s arguments in

mitigation, including his history of mental health issues and drug addiction, his

need to care for his young family and the fact that he committed no new offenses

since his 2010 sentencing on the federal fraud charge. See United States v. Scott,



       5
         Simmons committed the instant failure-to-surrender offense before he was convicted on
July 7, 2011 of the Florida (2009 failure to return a leased vehicle) offense. And, the
undischarged eight-year state prison term resulted from conduct unrelated to the instant offense.
Thus, subsection (c) of U.S.S.G. § 5G1.3 was the applicable subsection.

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426 F.3d 1324, 1329 (11th Cir. 2005) (explaining that district court is not required

to explicitly consider each of the factors). Although Simmons suggests his eight-

year state sentence was too severe “for a relatively minor offense,” it resulted from

his status under Florida law as a habitual felony offender. Indeed, Simmons’s

criminal history was extensive and included a history of failing to appear for court

proceedings. Further, Simmons’s conduct in the state offense was not relevant

conduct in his federal offense. Thus, the preference for consecutive sentences in

separate criminal cases militated in favor of consecutive terms. Under the factual

circumstances of this case, we cannot say the district court abused its discretion by

running Simmons’s 21-month federal sentence consecutive to his eight-year state

court sentence.

      AFFIRMED.




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