                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       __________

                                       No. 08-1841
                                       __________

                            UNITED STATES OF AMERICA

                                             v.

                      ATLAS AQUARIUS SIMPSON, a/k/a Large

                                           Atlas A. Simpson, Appellant
                                       __________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (D.C. Criminal No. 1-05-cr-00443-014)
                      District Judge: The Honorable Yvette Kane
                                      __________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 25, 2011

          BEFORE: BARRY, HARDIMAN, and NYGAARD, Circuit Judges.

                                   (Filed: July 8, 2011)

                                       __________

                               OPINION OF THE COURT
                                     __________

NYGAARD, Circuit Judge.

       Atlas Aquarius Simpson pleaded guilty to conspiracy to transport individuals for

purposes of engaging in prostitution, to coercing and enticing individuals to travel to
engage in prostitution, and to interstate travel with intent to distribute the proceeds of

prostitution, in violation of 18 U.S.C. §§ 371, 2421, 2422(a), and 1952(a). He also

pleaded guilty to a count of interstate transportation for purposes of prostitution, in

violation of 18 U.S.C. § 1952(a)(3) and (2).

          Quoting Simpson’s brief, he appeals: “Whether a District Court’s decision to

count a violation of a local tax ordinance violates the sentencing guidelines where a

violation of a municipal tax law is not a violation of any state criminal statute?”

Appellant’s Brief, p. 2. We have plenary review over the District Court’s interpretation

of the Guidelines. United States v. Jimenez, 513 F.3d 62, 85 (3d Cir. 2008). We will

affirm.

          Citing to U. S. Sentencing Guidelines Manual § 4A1.2 (2006), Simpson avers that

the District Court erred by assigning to him one criminal history point for having been

convicted of failing to file an earned income tax return. The problem with Simpson’s

assertion, however, is that the District Court accounted for his objection in its sentence.

The applicable statutory maximum was 120 months. With an offense level of 23, and a

criminal history category of VI, Simpson’s Guidelines range was 92 to 115 months.

However, acknowledging that one criminal history point was for failure to file a local

earned income tax return, the District Judge agreed to credit Simpson one point,

accounting for it in her analysis of 18 U.S.C. § 3553(a) factors. If the point had been

removed from the Guidelines calculation, his Guidelines range would have been 84 to

105 months. Taking note of Simpson’s objection—among other factors—in its section

3553(a) analysis, the District Court sentenced him to 72 months of imprisonment, well


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below either Guidelines range. Moreover, upon the government’s motion for a

downward departure for Simpson’s substantial cooperation in the prosecution of co-

conspirators, pursuant to section 5K1.1, the District Court issued an amended sentence of

57 months.

       The District Court’s sentence is eminently reasonable and substantially just. We

will affirm the District Court’s judgment of sentence. 1




1
 Although Judge Hardiman agrees that Simpson's sentence is eminently reasonable and
substantially just, he would hold that the District Court committed procedural error by
assigning Simpson one criminal history point pursuant to section 4A1.2 of the Sentencing
Guidelines.

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