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. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

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

.

On appeal, Simmons argues that his conviction for brandishing a firearm in furtherance

of a "crime of violence" in violation of

(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

(c); and (2) attempted Hobbs Act robbery was not a proper predicate offense for the

(c) firearms charge because it was not referenced in his plea agreement

and does not qualify as a "crime of violence" under

(c). We assume the

parties' familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

2 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

(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,"

.

3 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

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

motion de novo.

McCloud v. United States,

(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,

(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.

4 In his brief on appeal, which was filed before our recent decision in United

States v. McCoy,

(2d Cir. 2021), Simmons argued that attempted Hobbs Act

robbery does not qualify as a "crime of violence" under

. In McCoy, we

rejected that argument, holding that "an attempt to commit Hobbs Act robbery . . .

categorically qualifies as a crime of violence."

(internal quotation marks

and alterations omitted). Hence, Simmons's argument fails.

* * *

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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