United States v. Deshondra Simmons , 438 F. App'x 308 ( 2011 )

Case: 11-30003 Document: 00511575615 Page: 1 Date Filed: 08/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 18, 2011
No. 11-30003
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DESHONDRA SIMMONS,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-CR-166-1
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Deshondra Simmons pleaded guilty to three counts of mail theft by a
postal employee, in violation of 18 U.S.C. § 1709, and was sentenced to three-
months’ imprisonment and three years’ supervised release. Simmons contends
her sentence is based on a procedural error because the district court did not
understand that the advisory Guidelines included the option of probation; she
does not claim that her sentence is substantively unreasonable.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-30003 Document: 00511575615 Page: 2 Date Filed: 08/18/2011
No. 11-30003
As Simmons concedes, because she did not raise her procedural-error claim
in district court, it is subject only to plain-error review. See Puckett v. United
States, 129 S. Ct. 1423, 1428-29 (2009); United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007). To establish reversible plain error, Simmons must show
a clear or obvious error affecting her substantial rights. E.g., Puckett, 129 S. Ct.
at 1429. Even if plain error is shown, our court retains discretion to correct it
and will do so only if the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings”. Id. (citation and internal quotation marks
omitted). Although Simmons has completed her term of imprisonment, her
appeal is not moot because she is still subject to a sentence of supervised release.
See United States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006).
The presentence investigation report noted that the applicable advisory
Guidelines sentencing range was zero to six months’ imprisonment and that
Simmons was eligible for a probated sentence of not more than five years. And,
at sentencing, Simmons requested a probated sentence. Her contention—that
the district court did not understand that probation was an option under the
Guidelines—borders on frivolous. The record reflects that the district court was
aware that a term of imprisonment was not required. At sentencing, the court
stated that it had considered the Guidelines sentencing range and found it to be
appropriate. Accordingly, the court provided adequate reasons for imposing a
sentence in the middle of that range. See, e.g., Rita v. United States, 551 U.S.
338, 356-58 (2007).
Therefore, there is no clear or obvious error. But, even assuming such
error, because Simmons did not object to the adequacy of the reasons, and there
is no indication that a greater explanation would have resulted in a lower
sentence, there would be no reversible plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir. 2009).
AFFIRMED.
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