United States of America v. Godfrey L. Simmons

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2013
UNITED STATES OF AMERICA
v.
GODFREY L. SIMMONS
Appellant.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-CR-417)
District Judge: Honorable Petrese B. Tucker
Argued May 4, 2004
Before: SLOVITER, FUENTES, and BECKER, Circuit Judges.
(Filed: March 22, 2005)
Robert Epstein (Argued)
Assistant Federal Defender
David L. McColgin
Supervising Appellate Attorney
Maureen Kearney Rowley
Chief Federal Defender
Federal Court Division
Defender Association of Philadelphia
Suite 540 West–Curtis Center
Independence Square West

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Philadelphia, PA 19106
Counsel for Appellant
Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy United States Attorney for Policy and Appeals
Robert A. Zauzmer
Assistant United States Attorney, Senior Appellate Counsel
Jennifer Arbittier Williams (Argued)
Assistant United States Attorney
615 Chestnut St.
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
FUENTES, Circuit Judge.
Godfrey L. Simmons, a native of Guyana, was charged with and pled guilty to one
count of illegal reentry after deportation. The District Court sentenced Simmons, pursuant
to the United States Sentencing Guidelines (“U.S.S.G.”), to a 48 month term of
imprisonment. In determining the sentence, the District Court granted the Government’s
motion for an upward departure under U.S.S.G. § 4A1.3 on the grounds that Simmons’
criminal history category did not adequately reflect the seriousness of his past criminal
conduct and the likelihood of recidivism. Simmons thereafter appealed his sentence, arguing
that the District Court erred in imposing the upward departure. This Court heard oral
argument on May 4, 2004.

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Shortly thereafter, the U.S. Supreme Court issued its opinion in Blakely v.
Washington, 124 S. Ct. 2531 (2004). Simmons filed a motion for leave to file a supplemental
brief, which this Court took under advisement and held C.A.V. pending further decision of
this Court. Following the decision of the Supreme Court in United States v. Booker, 543
U.S. __, 125 S. Ct. 738 (2005), and in response to this Court’s directive of February 17,
2005, Simmons now challenges his sentence under Booker.
Having determined that the sentencing issues appellant raises are best determined by
the District Court in the first instance, we will vacate the sentence and remand for
resentencing in accordance with Booker. Simmons raises no challenge as to his conviction
and accordingly has waived any argument in this regard. We will affirm the judgment of
conviction.

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