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United States v. Simmons

United States Court of Appeals, Fourth Circuit

March 4, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
TOMONTA SIMMONS, Defendant-Appellant.

          Argued: December 13, 2018

          Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:14-cr-00017-RJC-13)

         ARGUED:

          Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.

          Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

         ON BRIEF:

          R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

          Before GREGORY, Chief Judge, DUNCAN, and DIAZ, Circuit Judges.

          GREGORY, CHIEF JUDGE.

         Appellant Tomonta Simmons had his supervised release revoked and was sentenced to 36 months' imprisonment after the district court determined that he committed the North Carolina offense of assault with a deadly weapon on a government official ("AWDWOGO") and four other violations of his release. Simmons's revocation sentence was predicated on the district court's determination that AWDWOGO is a "crime of violence" under the 2016 Sentencing Guidelines and, thus, a Grade A supervised release violation. Because we conclude that AWDWOGO is categorically not a "crime of violence," we find that the district court erred in classifying Simmons's supervised release violations as a Grade A violation. This error anchored Simmons's revocation sentence to an improperly calculated Guidelines range. Therefore, we vacate his revocation sentence and remand for resentencing.

         I.

         After a high-speed car chase on February 12, 2017 by North Carolina State Highway Patrol Trooper Gary Altman, during which Trooper Altman's police vehicle was sideswiped, Tomonta Simmons and another male were arrested. At the time, Simmons was on supervised release after having served a term of federal imprisonment for conspiracy to commit bank fraud. One of the conditions of his supervised release was that he "not commit another federal, state, or local crime."

         After the February 12 incident, the United States Probation Office petitioned the United States District Court for the Western District of North Carolina for revocation of Simmons's supervised release. According to the Probation Office, Simmons had committed various supervised release violations. The most serious violation was the crime of AWDWOGO, N.C. Gen. Stat. § 14-34.2, which, Probation argued, Simmons committed while fleeing from Trooper Altman.

         At a revocation hearing, Simmons argued that he had been a passenger, not the driver of the car involved in the alleged assault. The district court heard testimony from Trooper Altman and from Simmons's mother and godmother. The court determined that Simmons was in fact driving the vehicle that sideswiped Trooper Altman's vehicle and that the Government had proven each of the alleged supervised release violations.

         Of relevance to this appeal, the district court found that Simmons had committed a Grade A supervised release violation when he committed North Carolina AWDWOGO. See U.S.S.G. § 7B1.1(a) (classifying supervised release violations into Grades A, B, and C). The district court revoked Simmons's supervised release. See U.S.S.G. § 7B1.3(a)(1) ("Upon a finding of a Grade A or B violation, the court shall revoke probation or supervised release."). With Simmons's criminal history category of V, the applicable Guidelines range for Simmons's revocation sentence was 30 to 36 months. See U.S.S.G. § 7B1.4(a)(1); U.S.S.G. § 7B1.4(b)(1); 18 U.S.C. §§ 1344, 1349, 3559(a)(2), 3583(e)(3). The district court sentenced Simmons to the top of that range: 36 months' imprisonment.

         Simmons's counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that he was unable to present a meritorious argument on appeal because none of the evidence submitted during the revocation hearing contradicted Trooper Altman's testimony that Simmons was driving the vehicle at the time of the police chase.[1] Fulfilling our obligation under Anders, we reviewed the record and identified one nonfrivolous issue on appeal: whether the North Carolina offense of AWDWOGO is a "crime of violence" under the 2016 Sentencing Guidelines such that it constituted a Grade A violation of Simmons's supervised release.

         Counsel for Simmons and the Government submitted supplemental briefing on this narrow issue. We now conclude that North Carolina AWDWOGO does not meet the definition of a "crime of violence" for purposes of U.S.S.G. § 7B1.1.

         II.

         Generally, we review de novo the issue of whether a predicate offense constitutes a "crime of violence" under the Sentencing Guidelines. United States v. Carthorne, 726 F.3d 503, 509 (4th Cir. 2013); United States v. Jenkins, 631 F.3d 680, 682 (4th Cir. 2011). However, when, as here, a defendant fails to object below to the district court's determination that his predicate offense is a "crime of violence," we review the question for plain error. Carthorne, 726 F.3d at 509. We will find plain error "if the settled law of the Supreme Court or ...


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