United States of America v. Demetris Simmons

ΠThis successive appeal has been submitted to the original
panel pursuant to Operating Procedure 6(b). After reviewing
the briefs and the record, the panel is unanimously of the view
that oral argument is unnecessary. Accordingly, the appeal
has been submitted on the briefs and the record alone. See Fed.
R. App. 34(a).
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3894
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
D EMETRIS S IMMONS ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 63—Charles N. Clevert, Jr., Judge.
____________
S UBMITTED M ARCH 6, 2007Œ—D ECIDED M AY 10, 2007
Before M ANION , W ILLIAMS , and S YKES , Circuit Judges.
P ER CURIAM . Demetris Simmons was convicted follow-
ing a jury trial of dealing in firearms without a license and
sentenced to 56 months’ imprisonment. Simmons appealed

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2 No. 06-3894
the calculation of his sentence under the United States
Sentencing Guidelines based on the Supreme Court’s
decision in United States v. Booker. This court affirmed
Simmons’ conviction but remanded for re-sentencing in
light of Booker. On remand, the district court re-sentenced
Simmons under the advisory guidelines and reduced his
previous sentence by five months. Simmons again appeals
his sentence, and we affirm.
I.
Simmons was indicted on a single charge of dealing in
firearms without a license in violation of 18 U.S.C.
§§ 922(a)(1)(A) and (2) stemming from his sale of firearms
between July 23, 2003, and September 9, 2003. The indict-
ment also contained three sentencing allegations: (1) the
offense involved the sale of a semiautomatic assault
weapon as defined at 18 U.S.C. § 921(a)(30); the offense
involved the defendant’s sale of at least three firearms, but
not more than seven; and (3) the offense involved the
defendant’s sale of a stolen firearm. A jury found Simmons
guilty of the firearms charge, and also found that all three
sentencing allegations had been proven beyond a rea-
sonable doubt. The district court sentenced Simmons to
56 months’ imprisonment, in addition to supervised re-
lease and a special assessment. Simmons appealed, and this
court affirmed his conviction, but remanded for re-sentenc-
ing in light of the Supreme Court’s decision in United States
v. Booker, 543 U.S. 220 (2005).
On remand for re-sentencing, the district court set
Simmons’ base offense level at 18 pursuant to U.S.S.G.
§ 2K2.1(a)(5). The district court added four levels pursu-
ant to § 2K2.1(b)(1) (more than three firearms) and

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No. 06-3894 3
1 Simmons claims that the appropriate guideline range is 27 to
33 months, rather than 51 to 63 months as determined by the
district court during Simmons’ re-sentencing.
§ 2K2.1(b)(4) (obliterated serial number) for a total offense
level of 22. Based on that offense level, and Simmons’
criminal history category of IV, the district court deter-
mined the applicable advisory guideline range to be 63 to
78 months. The district court then granted Simmons’
downward departure motion and reduced Simmons’
criminal history category from IV to III. The downward
departure resulted in a reduction in the applicable ad-
visory guideline range to 51 to 63 months. The district
court sentenced Simmons to 51 months’ imprisonment to
run concurrent with Simmons’ state sentence. Simmons
now appeals that sentence.
II.
In this appeal, Simmons argues that the district court
miscalculated his advisory guideline range, and as a result
unreasonably sentenced him beyond the upper end of his
actual advisory guideline range. 1 We review the district
court’s calculation of an advisory guideline range de novo
and its factual findings for clear error. United States v.
Baldwin, 414 F.3d 791, 798 (7th Cir. 2005). Sentences that
are outside of the advisory guideline range are “measured
for reasonableness based on their conformity with the
sentencing factors of § 3553(a).” United States v. Robinson,
435 F.3d 699, 701 (7th Cir. 2006). While the justification
must be greater the farther the sentence is outside of the
advisory guideline range, United States v. Rinaldi, 461 F.3d
922, 930 (7th Cir. 2006), “[i]t is hard to conceive of below-

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4 No. 06-3894
2 The unlicensed firearm sales for which Simmons was con-
victed took place between July 23, 2003, and September 9, 2003,
which was a full year before § 921(a)(30) expired.
range sentences that would be unreasonably high,” United
States v. George, 403 F.3d 470, 473 (7th Cir. 2005).
First, Simmons notes that 18 U.S.C. § 921(a)(30), which
defined the term “semiautomatic assault weapon,” was
repealed after the Violent Crime Control and law Enforce-
ment Act of 1994, 108 Stat. 1796, expired on September 13,
2004. Simmons next argues that if § 921(a)(30) expired prior
to his trial and sentencing, and U.S.S.G. § 2K2.1(a)(5)
incorporated and depended on 18 U.S.C. § 921(a)(30),
then § 2K2.1(a)(5) expired when § 921(a)(30) expired and
it could not be used to calculate his sentence. Simmons
makes this argument despite the fact that it is undisputed
that § 921(a)(30) was in effect at the time Simmons commit-
ted the weapons offense for which he was convicted,2 and
§ 2K2.1(a)(5) appears in the 2005 version of the guide-
lines manual under which Simmons properly was sen-
tenced. While this issue is one of first impression in this
circuit, our sister circuits have addressed this issue and
unanimously have rejected Simmons’ argument. See, e.g.,
United States v. Roberts, 442 F.3d 128, 129 (2d Cir. 2006)
(per curiam) (“We conclude that the Sentencing Commis-
sion intended that courts determine for purposes of
§ 2K2.1(a)(5) whether the firearm used by the defendant
qualified as a ‘semiautomatic assault weapon’ under
§ 921(a)(30) at the time of the crime.” (citing United States
v. Whitehead, 425 F.3d 870, 871-72 (10th Cir. 2005)). We
follow the Second and Tenth Circuits’ well-reasoned
approach and hold that the district court properly used
2K2.1(a)(5) to calculate Simmons’ sentence.

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No. 06-3894 5
Second, Simmons argues that if he can be sentenced
under § 2K2.1(a)(5), then one of the weapons involved in
the offense, a Ruger Mini-14, falls within the exception to
§ 921(a)(30) for weapons manufactured prior to September
13, 1994. See 18 U.S.C. § 922(v)(2). This issue, like the one
above, is an issue of first impression in this circuit, but
again the overwhelming majority of our sister circuits that
have addressed it have uniformly rejected Simmons’
argument. See, e.g., United States v. Ray, 411 F.3d 900, 906
(8th Cir. 2005) (“A majority of the courts that have ad-
dressed the issue have held that § 922(v)(2) is not an
exception to § 2K2.1(a)(4)(B) or other like provisions.”
(citing United States v. Vega, 392 F.3d 1281, 1282-83 (11th
Cir. 2004)); see also United States v. Laureano-Velez, 424 F.3d
38, 41 (1st Cir. 2005); United States v. Emerson, No. 03-10104,
2004 WL 180360, at *3 (5th Cir. Jan. 28, 2004) (per curiam);
United States v. Hayes, Nos. 02-4597, 02-4605, 02-4610 and
02-465, 2003 WL 21436994, at *2 (4th Cir. June 23, 2003) (per
curiam)). In those cases, the courts held that the excep-
tion to 18 U.S.C. § 921(a)(30) for weapons manufactured
prior to September 13, 1994, applies to defendants
charged with simple possession and not to sentence
enhancements under the guidelines. See, e.g., Laureano-
Velez, 424 F.3d at 41. We follow the other circuits’ reasoning
and hold that the district court properly enhanced
Simmons’ sentence for selling the Ruger Mini-14.
We next turn to whether the district court’s sentence
of 51 months of imprisonment was reasonable. First, we
must point out that the district court should not have
granted Simmons’ motion for a “downward departure”
from criminal history category IV to III. “The proper
procedure under Booker, as we have explained in a number
of cases, is for the sentencing judge first to compute the

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6 No. 06-3894
guidelines range and then to apply the sentencing factors
in 18 U.S.C. § 3553(a) in order to decide whether the
sentence should be inside or outside the range.” United
States v. Spano, 476 F.3d 476, 480 (7th Cir. 2007). As we
stated in Spano:
Departures create new guidelines ranges and thus
deflect the sentencing judge from consideration of the
statutory sentencing factors. For having exercised
discretion to make the departure and find a new
range, he is unlikely to think a further exercise of
discretion necessary before he can be confident that a
sentence within the new range is the proper sentence.
But it is necessary, because he has to apply the statu-
tory sentencing factors if he is asked to do so by a
party.
Departures were an essential safety hatch in the pre-
Booker world because the guidelines were mandatory
then, so that every sentence (except statutory maxi-
mum and minimum sentences) had to be fitted into the
guidelines scheme. With the guidelines advisory, the
departure safety hatch, constrained as it was by the
requirement that departures be consistent with the
structure of the guidelines, e.g., United States v. Castro-
Juarez, 425 F.3d 430, 434 (7th Cir. 2005), is a superfluous
way station en route to application of the more capa-
cious statutory sentencing factors. In short, “after
Booker, which rendered the Guidelines advisory,
departures have become obsolete.” United States v. Blue,
453 F.3d 948, 952 (7th Cir. 2006).
Id. (emphasis in original). Accordingly, the district court
should have stopped after it calculated Simmons’ guideline
range using a total offense level of 22 and a criminal
history category of IV, which would have resulted in a

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No. 06-3894 7
guideline range of 63 to 78 months, rather than further
reducing the guideline range to 51 to 63 months. The
district court next should have considered the factors listed
in § 3553(a) to determine whether Simmons’ sentence
should fall inside or outside of the 63 to 78 month guideline
range. The district court’s failure to abide by this proce-
dure, however, was harmless error. As we have previously
stated, “[i]t is hard to conceive of below-range sentences
that would be unreasonably high.” George, 403 F.3d at 473.
Simmons’ sentence was an entire year below the low end
of the appropriate guideline range. The government
does not cross-appeal, so Simmons has benefitted sub-
stantially from the remand for resentencing. Accordingly,
we affirm Simmons’ sentence.
III.
For the foregoing reasons, Simmons’ sentence is
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-10-07

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