United States v. Simmons
649 F.3d 301
5th Cir.2011Background
- Simmons was convicted by jury on thirteen counts of using a cellular telephone to threaten to damage a building by means of an explosive, in violation of 18 U.S.C. § 844(e).
- The offenses occurred between September 30 and October 1, 2009, targeting multiple individuals at CCAD and its facilities.
- The district court applied the 2009 Guidelines and included a five-level multiple-count adjustment under § 3D1.4, calculating an advisory range of 84–105 months.
- Simmons argued for grouping all counts into a single offense under § 3D1.2 because the threats harmed CCAD as a whole and Randall was the primary intended victim.
- The district court declined to group, holding that each call recipient was a separate victim and that the threats targeted multiple locations and people at CCAD.
- Simmons was sentenced to concurrent 120-month terms (the statutory maximum) plus supervised release and $201,000 restitution, and he appealed solely on the grouping decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counts should be grouped under § 3D1.2 | Simmons: all counts groupable as one offense. | Simmons: victims were CCAD as a whole; primary victim Randall; group all counts. | No; multiple victims mean no single group; districts correctly declined grouping. |
Key Cases Cited
- United States v. Norman, 951 F.2d 1182 (10th Cir. 1991) (distinct victims; secondary victims not grouped)
- United States v. Nedd, 262 F.3d 85 (1st Cir. 2001) (multiple threats to family members not grouped; each victim primary)
- United States v. Parker, 551 F.3d 1167 (10th Cir. 2008) (multiple targets; not required to group when threats to different locations)
- United States v. Miller, 340 Fed.Appx. 335 (7th Cir. 2009) (threats to different targets may not be grouped)