United States v. Simmons

── United States v. Simmons ── Court: Court of Appeals for the Second Circuit Date: June 01, 2026 Category: General 23-7400-cr (L) United States v. Simmons In the United States Court of Appeals For the Second Circuit August Term 2024 Argued: February 12, 2025 Decided: June 1, 2026 Docket Nos. 23-7400-cr (Lead), 23-8062-cr (Con) UNITED STATES OF AMERICA, Appellee, —v.— WINSOME WHITE, AKA WYNSOME WHITE, AKA PEARL, DONNIE BETHEA, JR., AKA DONNIE BETHEA, JR., AKA DON BETHEA, JR., DARLENE BORINGTON, Defendants, ASHLEY SIMMONS, AKA ROBERT SIMMONS, AKA ASH, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of New York Nos. 23-cr-304-1 / 09-cr-351-1, I. Leo Glasser, Judge. Before: KEARSE, SACK, and LEE, Circuit Judges.  Defendant-Appellant Ashley Simmons appeals from the revocation of his supervised release, as well as his conviction for failing to appear at his violation of supervised release (“VOSR”) hearing, in violation of 18 U.S.C. § 3146. He challenges the district court’s decision to proceed with his VOSR hearing in his absence; the imposition of consecutive sentences for his supervised release violations and failure to appear conviction, based on the court’s belief that consecutive sentences were required under 18 U.S.C. § 3146(b)(2); and the overall constitutionality of supervised release revocation proceedings. Upon due consideration, we hold that Simmons knowingly and voluntarily waived his right to be present at his VOSR hearing and that any potential error by the district court in electing to proceed with the hearing in Simmons’s absence was harmless. We further hold that the district court cannot have plainly erred by imposing consecutive sentences under § 3146(b)(2) because the statute’s applicability in this context constitutes an unsettled area of law. Finally, we affirm the constitutionality of supervised release. Accordingly, we AFFIRM the judgment of the district court. Judge Kearse concurs in a separate opinion. DANIEL J. MARCUS (Nicholas Moscow, on the brief), Assistant United States Attorneys for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee. BRIAN A. JACOBS (A. Dennis Dillon, on the brief), Morvillo Abramowitz Grand Iason & Anello PC, New York, NY; Bobbi C. Sternheim, Law Offices of Bobbi C. Sternheim, New York, NY, for Defendant-Appellant. 2 EUNICE C. LEE, Circuit Judge: Defendant-Appellant Ashley Simmons appeals from the revocation of his supervised release, as well as his conviction for failing to appear at his violation of supervised release (“VOSR”) hearing, in violation of 18 U.S.C. § 3146. He challenges the district court’s decision to proceed with his VOSR hearing in his absence; the imposition of consecutive sentences for his supervised release violations and failure to appear conviction, based on the court’s belief that consecutive sentences were required under 18 U.S.C. § 3146(b)(2); and the overall constitutionality of supervised release revocation proceedings. Upon due consideration, we hold that Simmons knowingly and voluntarily waived his right to be present at his VOSR hearing and that any potential error by the district court in electing to proceed with the hearing in Simmons’s absence