           Case: 15-12574    Date Filed: 12/31/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12574
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 2:15-cr-14002-JEM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff–Appellee,

                                 versus

TERRENCE L. SIMMONS,

                                                          Defendant–Appellant.

                      ________________________

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

                            (December 31, 2015)

Before WILLIAM PRYOR, JULIE CARNES, and FAY, Circuit Judges.

PER CURIAM:
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      Defendant Terrence Simmons appeals his sentence for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). After

Defendant pled guilty, the district court sentenced him to 64 months’ imprisonment

and 3 years of supervised release. In addition to the standard conditions, the

district court imposed a special condition of supervised release prohibiting

Defendant from associating with known gang members while on supervised

release. On appeal, Defendant argues that the district court erred in finding that he

was a gang “associate,” and therefore abused its discretion in imposing the above-

mentioned special condition of supervised release. After careful review, we

affirm.

      We review the district court’s factual findings for clear error. United States

v. McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006). But we review the district

court’s imposition of a special condition of supervised release for abuse of

discretion. United States v. Moran, 573 F.3d 1132, 1137 (11th Cir. 2009).

      A district court is permitted to impose any condition of supervised release it

deems appropriate, so long as it reasonably relates to certain factors enumerated in

18 U.S.C. § 3553(a). 18 U.S.C. § 3583(d)(1). The relevant § 3553(a) factors to be

considered when imposing special conditions of supervised release are the nature

and circumstances of the offense, the history and characteristics of the defendant,

and the need for the sentence imposed to: (1) afford adequate deterrence to


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criminal conduct; (2) protect the public from further crimes of the defendant; and

(3) provide the defendant with needed educational or vocational training, medical

care or other correctional treatment in the most effective manner. See id.; see also

18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D). Additionally, the sentencing court is

permitted to impose a special condition if it “involves no greater deprivation of

liberty than is reasonably necessary,” and is consistent with the policy statements

of the Sentencing Commission. 18 U.S.C. § 3583(d)(2)-(3). Because U.S.S.G.

§ 5D1.3(b) mirrors § 3583(d), we consider that guideline provision together with

the statute when reviewing the district court’s imposition of a special condition of

supervised release. Compare U.S.S.G. § 5D1.3(b), with 18 U.S.C.

§ 3583(d)(1)-(3); see United States v. Okoko, 365 F.3d 962, 965 n.5 (11th Cir.

2004) (noting that we consider § 5D1.3(b) in conjunction with § 3583(d) when

reviewing a special condition of supervised release).

      We conclude that the district court did not clearly err in finding that

Defendant was a gang “associate.” Nor did the district court abuse its discretion in

imposing a special condition on supervised release prohibiting Defendant from

associating with gang members while of supervised release. The record showed

that the present offense involved Defendant’s sale of a gun to a confidential

informant, where the confidential informant and Defendant agreed to meet at the

residence of a known gang member. When the confidential informant arrived,


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Defendant was with another individual, who was also a known gang member.

Moreover, recorded conversations between Defendant and his associates during the

transaction revealed that Defendant had admitted committing several robberies and

had discussed setting up a house from which to sell drugs. The record further

showed that the Florida Department of Corrections made a finding that Defendant

was part of a gang during his incarceration for a state crime in 2009, and

Defendant had admitted his gang affiliation to a police officer in July 2005.

      Defendant does not dispute this evidence, but instead argues that it is

insufficient to show that he associated with gang members. However, because the

unrefuted evidence supports the district court’s finding that Defendant associated

with gang members, the district court’s finding was not clearly erroneous. See

United States v. Rodriguez, 751 F.3d 1244, 1255 (11th Cir. 2014) (stating that

there can be no clear error where the district court’s findings are supported by the

record), cert. denied, 135 S. Ct. 310 (2014).

      Furthermore, the district court’s imposition of a special condition prohibiting

Defendant from associating with known gang members is reasonably related to the

§ 3553(a) factors. See 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b). As to the

nature and circumstances of the offense, two known gang members were involved

in Defendant’s commission of the present offense. See 18 U.S.C. § 3553(a)(1).

With respect to Defendant’s history and characteristics, the government provided


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documentation showing that Defendant started associating with gangs as early as

2005, when he admitted his gang association to a police officer. See id. In any

event, regardless of Defendant’s past gang association, the district court’s

imposition of a special condition prohibiting him being involved with gang

members while on supervised release is a prudent directive, especially given

Defendant’s prior convictions for sale and possession of cocaine and for being a

felon in possession of a firearm.

      Moreover, the special condition also reasonably relates to the need to protect

the public from further crimes by Defendant, as evidenced by the recorded

conversations revealing Defendant’s plans to commit future crimes with a known

gang member. See id. § 3553(a)(2)(C). Because the special condition is

reasonably related to at least two of the § 3553(a) factors and does not unduly

restrict Defendant’s liberties, the district court did not abuse its discretion by

imposing this special condition of supervised release. See 18 U.S.C. § 3583(d)(1)-

(2); see also United States v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000)

(concluding that a special condition of supervised release need not be related to

each factor listed under U.S.S.G. § 5D1.3(b)).

      For the above reasons, Defendant’s sentence is AFFIRMED.




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