Simmons v. United States ( 2021 )

20-11-pr
Simmons v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 7th day of June, two thousand twenty-one.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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TYRONE SIMMONS,
Plaintiff-Appellant,
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UNITED STATES OF AMERICA,
Defendant-Appellee.
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FOR PLAINTIFF-APPELLANT: STEPHANIE M. CARVLIN, Law Office of
Stephanie M. Carvlin, New York, New York.
FOR DEFENDANT-APPELLEE: ROBERT B. SOBELMAN, Assistant United
States Attorney (Karl Metzner, Assistant
United States Attorney, on the brief), for Audrey
Strauss, United States Attorney for the
Southern District of New York, New York,
New York.
Appeal from the United States District Court for the Southern District of
New York (Hellerstein, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Plaintiff-appellant Tyrone Simmons appeals from an order of the district
court, entered November 15, 2019, denying his motion for relief under 28 U.S.C. § 2255.
On appeal, Simmons argues that his conviction for brandishing a firearm in furtherance
of a "crime of violence" in violation of 18 U.S.C. § 924(c) should be vacated because: (1)
the only predicate offense referenced in his plea agreement was a conspiracy to commit
a Hobbs Act robbery, which does not constitute a "crime of violence" under 18 U.S.C. §
924(c); and (2) attempted Hobbs Act robbery was not a proper predicate offense for the
18 U.S.C. § 924(c) firearms charge because it was not referenced in his plea agreement
and does not qualify as a "crime of violence" under 18 U.S.C. § 924(c). We assume the
parties' familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
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Between July and December 2007, Tyrone Simmons, together with co-
conspirators, attempted and committed multiple robberies against individuals and
businesses. One especially violent incident occurred on or about July 14, 2007, when
Simmons and others attempted to commit an armed robbery of a suspected drug dealer
at an apartment in Yonkers, New York. Simmons and his co-conspirators restrained a
male victim and searched the apartment for narcotics and money. Simmons then raped
a female victim at the apartment.
In September 2010, Simmons was charged in a three-count Information
with: (1) conspiracy to commit Hobbs Act robbery ("Count One"); (2) attempted Hobbs
Act robbery ("Count Two"); and (3) violation of 18 U.S.C. § 924(c) by using a firearm in
furtherance of a crime of violence -- specifically, in furtherance of Counts One and Two
("Count Three"). Simmons's plea agreement, however, only recited "the robbery
conspiracy charged in Count One" as the predicate for Count Three. App'x at 17.
Similarly, at Simmons's plea allocution, the government only recited the conspiracy
count as the predicate for Count Three. But in pleading guilty to all three counts of the
Information -- referenced throughout the plea allocution -- Simmons admitted that for
the "robberies or attempted robberies between July 14, 2007 and December 10, 2007,"
App'x at 45, he used guns "[i]n all of them," including "the Yonkers one," for which he
was "inside the apartment," "ha[d] a gun," "show[ed] that gun," and "use[d] that gun in
effect to scare the person into compliance with what [Simmons] wanted to do," id. at 46.
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Following his guilty plea, Simmons was sentenced to concurrent terms of 135 months'
imprisonment for Counts One and Two and a consecutive term of 84 months'
imprisonment for Count Three. On June 22, 2016, Simmons moved under 28 U.S.C. §
2255 to vacate his § 924(c) conviction. The district court denied the motion as noted
above, and this appeal followed.
We review a district court's denial of a 28 U.S.C. § 2255 motion de novo.
McCloud v. United States, 987 F.3d 261, 264 (2d Cir. 2021). As relevant here, a § 924(c)
conviction "does not require the defendant to be convicted of (or even charged with) the
predicate crime, so long as there is legally sufficient proof that the predicate crime was,
in fact, committed." Johnson v. United States, 779 F.3d 125, 129 (2d Cir. 2015).
Here, although the plea agreement listed only the conspiracy count as the
predicate for Simmons's § 924(c) conviction, Simmons admitted at his plea hearing that
he committed attempted Hobbs Act robbery with a firearm and he pleaded guilty to
Count Two, which charged him with attempted Hobbs Act robbery. This constitutes
legally sufficient proof that Simmons committed the predicate crime of attempted
Hobbs Act robbery. Accordingly, the district court did not err in concluding that "[t]he
Information gave clear notice to Petitioner that both the Hobbs Act Conspiracy and the
Hobbs Act Attempt were predicates for Count Three, the § 924(c) Count," and that
"[Simmons's] allocution made it even clearer that the [§] 924(c) Count was, in fact,
predicated upon the attempt." App'x at 162-63.
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In his brief on appeal, which was filed before our recent decision in United
States v. McCoy, 995 F.3d 32 (2d Cir. 2021), Simmons argued that attempted Hobbs Act
robbery does not qualify as a "crime of violence" under 18 U.S.C. § 924. In McCoy, we
rejected that argument, holding that "an attempt to commit Hobbs Act robbery . . .
categorically qualifies as a crime of violence." 995 F.3d at 55 (internal quotation marks
and alterations omitted). Hence, Simmons's argument fails.
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We have considered Simmons's remaining arguments and conclude they
are without merit. For the foregoing reasons, we AFFIRM the order of the district
court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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