United States of America v. Michael Simmons

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2485
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UNITED STATES OF AMERICA
v.
MICHAEL SIMMONS,
Appellant
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On Appeal from United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-05-cr-00074-001)
District Judge: Honorable William S. Stickman, IV
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 21, 2023
Before: HARDIMAN, PORTER and FISHER, Circuit
Judges.
(Filed: June 1, 2023)

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K. Anthony Thomas, Interim Federal Public Defender
Julie A. McGrain
Office of Federal Public Defender
800-840 Cooper Street, Suite 350
Camden, NJ 08102
Counsel for Appellant
Troy Rivetti, Acting United States Attorney
Donovan J. Cocas
Laura S. Irwin
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Michael Simmons, convicted of transportation with
intent to engage in criminal sexual activity under 18 U.S.C. §
2423(a), was serving a life term of supervised release. After
Simmons engaged in a pair of violent incidents and failed to
provide accurate information to the state sex offender registry,
the District Court found he violated the terms of his release. In
accordance with the advisory sentencing guidelines, the Court
sentenced him to twenty-one months’ imprisonment followed
by a reimposed life term of supervised release. For the first
time on appeal, Simmons asserts the Court violated 18 U.S.C.

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§ 3583(h) by not subtracting the twenty-one months’
imprisonment from his life term of supervised release. He also
claims the imposition of a life term of supervised release was
substantively unreasonable. For the reasons that follow, we
will affirm.
I.
A. Factual History
In January 2006, Simmons pleaded guilty to
Transportation with Intent to Engage in Criminal Sexual
Activity in violation of 18 U.S.C. § 2423(a), for which he was
sentenced to 210 months of imprisonment and a lifetime of
supervised release. Simmons finished his prison term and
began his supervised release in late 2020.
In early 2021, Simmons and his girlfriend went to his
mother’s home in McKees Rocks for dinner. Later that
evening, an argument ensued during which Simmons choked,
punched, and threatened to throw hot grease on his mother.
Simmons also held both his mother and his girlfriend against
their will as he trashed the apartment and threw hot grease in
the dining room. Police officers who responded noted his
mother had a black and blue eye and a scratch on her neck.
The next day, Simmons’ mother was at the home of a
friend. Simmons arrived at the house wearing a mask and fired
a gunshot through the front door into an occupied room. A
home security camera captured video and audio of the incident,
including Simmons stating, “next time I’m going to kill
everybody.” App. 24. The police received a call and filed a
report.
In the aftermath of these incidents, Simmons’ probation
officer spoke to his mother. She told the officer that Simmons
did not live with her, despite him having listed her home
address as his own with Pennsylvania’s sex offender registry.

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Rather, Simmons actually lived with his girlfriend in
Aliquippa. This violated the terms of his supervised release,
which required him to register with the sex offender registry
and provide any change of address within 72 hours.
Simmons was charged under state law with terroristic
threats, unlawful restraint, simple assault, and strangulation for
the incident at his mother’s apartment. That same day, the U.S.
Probation Office filed a petition and a supplemental petition
for warrant or summons alleging four violations of his
supervised release: the two violent incidents, failure to update
his address with the sex offender registry, and possession of a
firearm. Two weeks later, Simmons was arrested and detained.
While he was in federal custody, the state charges were
withdrawn nolle prosequi.1
B. Procedural History
The District Court held a revocation hearing. Simmons
denied the allegations that he violated the terms of his
supervised release, so the Court heard testimony from him, his
probation officer, a police officer who responded to the
shooting, and a Deputy U.S. Marshal. The District Court found
the Government proved by a preponderance of the evidence all
four violations of supervised release alleged in the U.S.
Probation Office’s Petition. These findings supported an
advisory Guidelines range of fifteen to twenty-one months’
1 “A nolle prosequi is a voluntary withdrawal by the
prosecuting attorney of proceedings on a particular bill or
information, which can at any[ ]time be retracted to permit a
revival of proceedings on the original bill or information.”
Commonwealth v. Whiting, 500 A.2d 806, 807 (Pa. 1985).

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imprisonment, and a statutory maximum term of thirty-six
months’ imprisonment.
The District Court considered the factors required under
18 U.S.C. § 3553(a), including the nature and circumstances of
the offense; Simmons’ history and characteristics; the need for
a sentence that reflects the seriousness of the offense, deters
criminal conduct, protects the public, and provides correctional
treatment in the most effective manner; the kinds of sentences
available; and the applicable Sentencing Commission
guidelines and policy statements. The Court then sentenced
Simmons to twenty-one months’ imprisonment followed by a
life term of supervised release. The Court noted Simmons’
“violent, offensive conduct,” which included assaulting his
own mother and firing a gun into an occupied home. App. 101.
It also pointed to the serious nature of the underlying crime:
Simmons pleaded guilty to having a 16-year-old travel to Los
Angeles, serving as her pimp, and forcing her to earn hundreds
of dollars each day working as a prostitute before he would
give her food or shelter. And the Court recognized Simmons’
“ongoing mental health issues” as well as his “history of
substance abuse,” but noted he had “not fully taken advantage”
of treatment services offered by the Probation Office. App.
103. The Court concluded that the sentence would “promote[]
respect for the law, and provide[] just punishment for the
violations, while acknowledging the serious criminal offenses
and noncompliant behavior while on supervised release” as
well as “deter[] . . . [Simmons] and other individuals who are
tempted to violate their term of supervision.” App. 104.
Simmons appeals.

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II.2
A. The District Court Did Not Violate 18 U.S.C. §
3583(h) by Reimposing a Life Term of
Supervised Release
Simmons first argues the District Court violated 18
U.S.C. § 3583(h) by reimposing a life term of supervised
release and not subtracting the twenty-one months’
imprisonment he received upon his revocation of supervised
release. Simmons failed to raise this challenge before the
District Court, so we review it for plain error. See United States
v. Duka, 671 F.3d 329, 354 (3d Cir. 2011) (applying Fed. R.
Crim. P. 52(b)). Plain-error review requires Simmons to
establish four prongs: (1) there was an error; (2) the error was
clear or obvious; (3) the error affected his substantial rights;
and (4) the error affects the fairness, integrity, or public
reputation of judicial proceedings. See id. at 354–55.
In any case involving statutory interpretation, we begin
with the text of the statute. United States v. Gonzales, 520 U.S.
1, 4 (1997). The statute provides:
When a term of supervised release is revoked and
the defendant is required to serve a term of
imprisonment, the court may include a
requirement that the defendant be placed on a
term of supervised release after imprisonment.
The length of such a term of supervised release
shall not exceed the term of supervised release
authorized by statute for the offense that resulted
2 The District Court had subject matter jurisdiction pursuant
to 18 U.S.C. §§ 3231 and 3583(e). This Court has jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

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in the original term of supervised release, less
any term of imprisonment that was imposed upon
revocation of supervised release.
18 U.S.C. § 3583(h) (emphasis added).
The District Court did not plainly err by reimposing a
life term of supervised release. Simmons was originally
convicted of a sex offense under 18 U.S.C. § 2423(a). A court
is authorized to sentence an individual convicted under §
2423(a) to a “life” term of supervised release. 18 U.S.C.
§ 3583(k) (“[T]he authorized term of supervised release for
any offense under section . . . 2423 . . . is any term of years not
less than 5, or life.”). Thus, Simmons’ argument hinges on the
meaning of life. Not in the philosophical sense, but the
temporal. Simmons argues that life should equate to a fixed
term of months or years, and that the District Court erred by
not subtracting his twenty-one months’ imprisonment from his
total time of supervised release.
Congress did not ascribe a definition to life as it is used
in § 3583(k). This Court “interpret[s] undefined terms in the
[G]uidelines . . . using the terms’ meaning in ordinary usage.”
United States v. McClure-Potts, 908 F.3d 30, 36 (3d Cir. 2018)
(citation omitted). “To assess ordinary usage [of a term], legal
and general dictionaries are a good place to start.” United
States v. Dawson, 32 F.4th 254, 261 (3d Cir. 2022). The
ordinary usage of “life” in this context is clear: “the remaining
years of [a person’s] natural life.” See Imprisonment, Black’s
Law Dictionary (11th ed. 2019). Had the Sentencing
Commission intended “life” to have any other meaning in the
supervised release context, it would have said so. And the
distinction in § 3583(k) between a quantifiable “term of years”
and an indefinite term of “life” indicates that Congress had no
intention of converting “life” to a term of years.

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The subtraction requirement in § 3583(h)’s final clause
cannot be followed where a defendant has a life term of
supervision. It is impossible to know how long Simmons might
live, and thus it is impossible to subtract twenty-one months
from that undefined number of years remaining in his natural
life. And even if we could quantify a life sentence, the District
Court did not plainly err in declining to do so. This finding
comports with what the majority of our sister circuits who have
spoken on the issue have also held. See, e.g., United States v.
Crowder, 738 F.3d 1103, 1105 (9th Cir. 2013); United States
v. Cassesse, 685 F.3d 186, 191 (2d Cir. 2012); United States v.
Rausch, 638 F.3d 1296, 1302–03 (10th Cir. 2011), overruled
on other grounds by United States v. Bustamante-Conchas,
850 F.3d 1130 (10th Cir. 2017). But see United States v. Shorty,
159 F.3d 312, 316 (7th Cir. 1998) (stating that “the maximum
amount of supervised release possible would have been life
minus the amount of imprisonment imposed during the
sentencing for revocation,” but not deciding whether such a
sentence would be possible to impose). Moreover, the District
Court rightly noted it would hardly serve the interests of justice
if a defendant placed on supervised release for a life term could
violate the terms of that release and, in return, receive a shorter
period of supervision.
Therefore, the District Court did not violate 18 U.S.C. §
3583(h) by reimposing a life term of supervised release. It is
not possible to subtract a known term from an unknown, nor
would attempting to do so serve the interests of justice. There
was no error, let alone plain error.

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B. Simmons’ Life Term of Supervised Release was
Substantively Reasonable
Simmons next argues the life term of supervised release
was substantively unreasonable. We review the substantive
reasonableness of a district court’s sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). We
review sentences imposed upon revocation of supervised
release for reasonableness with regard to the § 3553(a) factors.
United States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007).
“The court shall impose a sentence sufficient, but not greater
than necessary, to comply with the purposes” of sentencing. 18
U.S.C. § 3553(a). “The party challenging the sentence has the
burden to demonstrate unreasonableness.” United States v.
King, 454 F.3d 187, 194 (3d Cir. 2006). Sentences within the
applicable guideline range are entitled to a presumption of
reasonableness. See United States v. Handerhan, 739 F.3d 114,
119–120 (3d Cir. 2014). A sentence is substantively
reasonable, and we must affirm, if it “falls within the broad
range of possible sentences that can be considered reasonable
in light of the § 3553(a) factors.” United States v. Wise, 515
F.3d 207, 218 (3d Cir. 2008) (citation omitted).
Though Simmons asserts a life term of supervision is
greater than necessary to achieve the goals of sentencing, we
disagree. The District Court reasonably applied the § 3553(a)
factors: it considered the need for a lifetime of supervised
release to serve the “interests of justice” and deterrence in light
of the seriousness of Simmons’ underlying sex trafficking
offense and his “violent, offensive conduct” while on
supervised release. App. 101. Furthermore, the Court
considered evidence regarding Simmons’ mental health, but
concluded it did not justify a reduction in his post-revocation
supervised release. And the Court’s decision not to give the

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mitigating factors like his mental health “the weight that
[Simmons] contends they deserve does not render [his]
sentence unreasonable.” See United States v. Lessner, 498 F.3d
185, 204 (3d Cir. 2007). Simmons cannot show that “no
reasonable sentencing court would have imposed” a life term
of supervised release “for the reasons the district court
provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.
2009) (en banc). Accordingly, we cannot find the sentence
substantively unreasonable.
III.
For these reasons, we will affirm the District Court’s
imposition of a life term of supervised release.

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