15-3874
United States v. Lyons

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 11th day of January, two thousand seventeen.

    PRESENT: RALPH K. WINTER,
             DENNIS JACOBS,
             ROSEMARY S. POOLER,
                           Circuit Judges.


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    UNITED STATES OF AMERICA,
             Appellee,

                 -v.-                                               15-3874

    KASHAWN LYONS,
             Defendant-Appellant.
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    FOR APPELLANT:                        Elizabeth A. Latif, Day Pitney
                                          LLP, Hartford, CT.

    FOR APPELLEES:                        Matthew Laroche and Diane
                                          Gujarati, for Preet Bharara,
                                          United States Attorney for the


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                           Southern District of New York,
                           New York, NY.

     Appeal from a judgment of the United States District
Court for the Southern District of New York (Sullivan, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Defendant Kashawn Lyons appeals from a November 23,
2015 judgment of the United States District Court for the
Southern District of New York (Sullivan, J.), sentencing him
to three years of imprisonment and to three years of
supervised release. The district court sentenced Lyons
after Lyons pled guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). We assume the
parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     Lyons challenges his sentence as substantively
unreasonable. We review challenges to a sentence under a
“reasonableness” standard, which is a “particularly
deferential form of abuse-of-discretion review.” United
States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012)
(internal quotation marks and citation omitted).
“[S]ubstantive reasonableness review is intended to ‘provide
a backstop’ against sentences that are ‘shockingly high,
shockingly low, or otherwise unsupportable as a matter of
law.’” United States v. Dorvee, 616 F.3d 174, 183 (2d Cir.
2010) (quoting United States v. Rigas, 583 F.3d 108, 123 (2d
Cir. 2009)). In reviewing the substantive reasonableness of
a sentence, “we take into account the totality of the
circumstances, giving due deference to the sentencing
judge’s exercise of discretion, and bearing in mind the
institutional advantage of district courts.” United States
v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (in banc).

     Lyons contends that his three-year sentence is
substantively unreasonable for three reasons.

     1. Lyons argues that he possessed a firearm for only a
moment. This contention rests on the following account
advanced by Lyons on appeal: Lyons’s supervisor directed him
to enter a vacant apartment in order to renovate it. Upon
entry, Lyons (to his surprise) found someone else’s handgun.
While Lyons was inside, police officers knocked on the door.

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Because he feared being found with the weapon, Lyons threw
the gun out the window and climbed out afterward.

     The problem with this argument is that the district
court rejected Lyons’s version of the facts at sentencing,
calling it “implausible to the point of being almost
preposterous.” App’x at 171. A district court’s factual
findings are reviewed for clear error, United States v.
Jeffers, 329 F.3d 94, 97 (2d Cir. 2003), and Lyons offers no
compelling reason to deem the district court’s view clearly
erroneous. Therefore, we reject Lyons’s premise that his
possession of the firearm was transitory.

     2. Lyons argues that the district court insufficiently
considered (a) the positive aspects of Lyons’s character and
history, and (b) the hardship his family would face if Lyons
were incarcerated. In reviewing a district court’s
sentence, “we do not consider what weight we would ourselves
have given a particular [sentencing] factor. Rather, we
consider whether the factor . . . can bear the weight
assigned it . . . .” Cavera, 550 F.3d at 191.

       The district court adequately weighed the
circumstances raised by Lyons on appeal. For example, the
district court observed that “[t]here’s obviously a lot of
good in [Lyons],” and discussed aspects of Lyons’s family
situation. App’x 170, 172. There is no reason to think the
district court improperly weighed the sentencing factors or
otherwise arrived at a sentence that is “shockingly high.”
Dorvee, 616 F.3d at 183.

     3. Lyons suggests that his sentence was improperly
influenced by the district judge’s “personal intolerance for
guns” and the judge’s unsubstantiated opinion that Lyons has
a predisposition to murder. Appellant’s Br. at 12, 13.
Lyons mischaracterizes the district judge’s statements at
sentencing. The district judge indicated that felons in
possession of firearms are a danger to society--the comment
does not reflect an improper bias against firearms. To the
contrary, it is an opinion shared by Congress, which
criminalized such conduct. See 18 U.S.C. § 922(g). Nor did
the district judge assume that “Lyons [was] predisposed to
become a murderer.” Appellant’s Br. at 13. Rather, the
district judge observed that Lyons’s previous conviction for
a shooting was prior conduct that made the instant offense
more serious. The district court did not abuse its


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discretion in considering this prior conviction at
sentencing.

     For the foregoing reasons, and finding no merit in
Lyons’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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