               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0019n.06
                           Filed: January 8, 2007

                                          No. 05-6736

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                   )
                                            )
      Plaintiff-Appellee,                   )
                                            )               On Appeal from the United States
                                            )               District Court for the Western
v.                                          )               District of Tennessee
                                            )
KEVIN PEARSON,                              )
                                            )
      Defendant-Appellant.                  )
                                            )
___________________________________________ )



Before:        BOGGS, Chief Judge; COOK, Circuit Judge; and ROSE, District Judge.*

               PER CURIAM. Kevin Pearson pleaded guilty to one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g). He originally was sentenced to 235

months of imprisonment followed by three years of supervised release, but we reversed and

remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). See United

States v. Pearson, 143 F. App’x 662 (6th Cir. 2005). On remand, the district court again sentenced

Pearson to 235 months of imprisonment followed by three years of supervised release. The only

question on review is whether Pearson’s sentence was reasonable in light of Booker. We affirm.

                                                I

          *
        The Honorable Thomas M. Rose, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 05-6736
United States v. Pearson

       Pearson’s conviction arose from a shooting that took place in front of the Stop & Tell Quick

Mart in Humboldt, Tennessee, on March 26, 2003. The shooting apparently erupted from an

argument among Pearson and two other individuals. During the shooting, an innocent bystander,

Donnie Ray Morris, was hit. He was sent to the hospital in critical condition. Witnesses indicated

to officers that Pearson and another individual had been involved in the shooting. They identified

Pearson as having brought a Sturm Ruger pistol to the scene. It is not clear who fired the shots.

       The next day, officers spoke with Morris, the shooting victim. He could not identify the

shooter. He did, however, identify Pearson and another individual by name. He did not recognize

the third person involved in the shooting. Later that day, officers found Pearson underneath a trailer.

A Sturm Ruger pistol was found underneath a board next to him. Officers took Pearson into custody.

       Pearson eventually pleaded guilty to being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g). The district court sentenced Pearson based on Sentencing Guidelines

calculations made in the Pre-Sentence Report. Those calculations gave Pearson a base offense level

of 34 as an armed career criminal and placed Pearson in criminal history category VI. Based on

those calculations, Pearson’s guidelines range was 188-235 months. The district court sentenced him

to 235 months of imprisonment and 3 years of supervised release.

       Pearson appealed his sentence and this court reversed and remanded for resentencing in light

of Booker, 543 U.S. 220, because the district court had treated the guidelines as mandatory. See

Pearson, 143 F. App’x 662. On remand, the district court again sentenced Pearson to 235 months

of imprisonment followed by three years of supervised release. Pearson does not challenge the



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No. 05-6736
United States v. Pearson

guidelines calculations employed by the district court.1 Thus, the only question on review is whether

his sentence was reasonable in light of Booker.

                                                   II

        Under Booker, we review sentences for reasonableness. United States v. Webb, 403 F.3d

373, 383 (6th Cir. 2005). However, a district court’s role is not to impose a “reasonable sentence.”

Instead, a district court’s mandate is to impose “a sentence sufficient, but not greater than necessary,

to comply with the purposes” of 18 U.S.C. § 3553(a)(2).2 See 18 U.S.C. § 3553(a) (“The court shall

impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth

in paragraph (2) of this subsection”). “Reasonableness is the appellate standard of review in judging

whether a district court” has fulfilled that mandate. United States v. Collington, 461 F.3d 805,

807-08 (6th Cir. 2006) (citing United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006)).

        The Sixth Circuit’s reasonableness test has substantive and procedural components. “A

sentence may be considered substantively unreasonable when the district court select[s] the sentence

arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a)

factors or giv[es] an unreasonable amount of weight to any pertinent factor.” Ibid. (citing Webb, 403



        1
        Pearson has not challenged the guidelines calculations that led to his being sentenced to 235
months of imprisonment. We thus will not consider in our decision any guidelines-related issues.
See United States v. Sanders, 404 F.3d 980, 989 (6th Cir. 2005).
       2
        Those purposes are “(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the
defendant with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2).

                                                 -3-
No. 05-6736
United States v. Pearson

F.3d at 383) (internal quotation marks omitted). “A sentence may be procedurally unreasonable if

the district judge fails to consider the applicable Guidelines range or neglects to consider the other

factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate

sentence without such required consideration.” Ibid.

       On appeal, the defendant argues that the district court “erroneously treated the guidelines

range as presumptively reasonable” and that “the procedural error of the district court in failing to

consider explicitly the sentencing factors of § 3553(a) requires that the case be remanded for

resentencing.” Brief of Appellant, at 7, 14. The first is a substantive reasonableness challenge and

the second is a procedural one. Neither has merit.

                                                  A

       Pearson first argues that the district court inappropriately treated a sentence within his

guidelines range as presumptively reasonable. For that proposition, he cites two cases from this

circuit: Webb, 403 F.3d 373, and United States v. McBride, 434 F.3d 470 (6th Cir. 2006). In Webb,

the court declined to hold that the guidelines range was “per-se reasonable.” 403 F.3d at 385 n.9.

In McBride, the court merely opined as to the procedural and substantive aspects of reasonableness

review under Booker. 434 F.3d at 476 n.3. Neither case specifically held that a sentence within the

applicable guidelines range is not presumptively reasonable.

       Instead, a later panel of this court concluded that sentences within the guidelines range are

presumptively reasonable. In United States v. Williams, this court wrote: “We now join several

sister circuits in crediting sentences properly calculated under the Guidelines with a rebuttable

presumption of reasonableness. Such a presumption comports with the Supreme Court’s remedial

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No. 05-6736
United States v. Pearson

decision in Booker.” 436 F.3d 706, 707-08 (6th Cir. 2006) (citing, inter alia, Booker, 543 U.S. 220;

United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United States v. Lincoln, 413 F.3d 716,

717 (8th Cir. 2005); United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)). As a consequence,

it is now clear that within-guidelines sentences are accorded a presumption of reasonableness within

this circuit.3

        Moreover, Pearson has provided no evidence indicating his sentence is substantively

unreasonable. As noted, a “sentence may be considered substantively unreasonable when the district

court select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to

consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent

factor.” Collington, 461 F.3d at 807-08. The district court neither considered any impermissible

factors nor accorded undue weight to any single factor. Pearson also offered little or no evidence

that would justify a lower sentence.4 As such, the district court’s decision was not substantively

unreasonable.

                                                 B

        Pearson also argues that the district court’s imposition of sentence was procedurally

unreasonable because the district court failed to consider expressly each § 3553(a) factor. We

disagree.


        3
         The Supreme Court recently granted certiorari in a case that presents the question of whether
within-guidelines sentences can be accorded a presumption of reasonableness. See Rita v. United
States, No. 06-5754, 2006 U.S. LEXIS 8362 (U.S. Nov. 3, 2006). The grant of certiorari in Rita does
not affect the outcome of this case.
        4
         Pearson’s counsel argued only that Pearson had been attending school and working while
in prison, and had participated in no recent fights.
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No. 05-6736
United States v. Pearson

       This circuit’s procedural reasonableness inquiry hinges on whether the district court properly

considered the factors laid out by 18 U.S.C. § 3553(a) before making its sentencing determination.

United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005). The district court has a particular

obligation “to communicate clearly its rationale for imposing the specific sentence.” United States

v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006). The § 3553(a) factors are:

       (1) the nature and circumstances of the offense and the history and characteristics of
       the defendant;
       (2) the need for the sentence imposed--
                (A) to reflect the seriousness of the offense, to promote respect for the law,
                and to provide just punishment for the offense;
                (B) to afford adequate deterrence to criminal conduct;
                (C) to protect the public from further crimes of the defendant; and
                (D) to provide the defendant with needed educational or vocational training,
                medical care, or other correctional treatment in the most effective manner;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range established for . . . the applicable
       category of offense committed by the applicable category of defendant as set forth in
       the guidelines . . . ;
       (5) any pertinent policy statement . . . issued by the Sentencing Commission . . . ;
       (6) the need to avoid unwarranted sentence disparities among defendants with similar
       records who have been found guilty of similar conduct; and
       (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

       Although a district court must consider all of the § 3553(a) factors, see Kirby, 418 F.3d at

626, it need not engage in a “ritual incantation” of those factors. Williams, 436 F.3d at 708-09.

Instead, district courts need only articulate their reasoning in a manner sufficient to allow for

meaningful reasonableness review by appellate courts. United States v. Jackson, 408 F.3d 301, 305

(6th Cir. 2005) (“Such an analysis is necessary in order to enable this court to engage in a meaningful

reasonableness review of federal criminal sentences in accordance with Booker.”). See also Williams

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No. 05-6736
United States v. Pearson

436 F.3d at 708-09 (citing Kirby, 418 F.3d at 626); United States v. Contreras-Martinez, 409 F.3d

1236, 1242 (10th Cir. 2005). Although the district court in this case did not expressly mention the

§ 3553(a) factors as “§ 3553(a) factors,” the court considered in substantive terms the pertinent

§ 3553(a) factors before imposing sentence on Pearson.

       With respect to § 3553(a)(1), the court considered the “nature and circumstances of the

offense” when it considered the shooting that occurred the day before the defendant was arrested.

Also, the district court appears to have been strongly influenced by the defendant’s criminal history.

At the pre-Booker sentencing hearing, the court said: “You have a long and violent criminal history.

You have four separate violent felonies. You are exactly the kind of person that Congress had in

mind when they passed the armed career criminal statutes. They want people like you put away for

a long time. So I’m going to – Because of your high criminal history score, I’m going to sentence

you to . . . 235 months.” At the resentencing hearing, the court noted similarly that: “It seems to me

that you ran some risk in filing this appeal because without the guidelines you run some risk of

getting a sentence much greater than what the guidelines suggested initially given your long and

violent criminal history and given the fact that there was [a] shoot-out in this case that involved

someone being shot.” Thus, the court clearly considered the nature and circumstances of the offense,

as well as Pearson’s criminal history.

       With respect to § 3553(a)(2), the court considered the seriousness of the circumstances

surrounding the offense. The court’s comments about the defendant’s violent history indicate that

the court was concerned about protecting the public from further crimes by the defendant. The



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No. 05-6736
United States v. Pearson

court’s extensive discussion of the guidelines calculations from the PSR demonstrates that the court

considered the applicable guidelines range. 18 U.S.C. § 3553(a)(4).

       The court also considered, under § 3553(a)(3) and (a)(7), both the “kinds of sentences

available” and whether Pearson could pay restitution to the victims, when it noted that Pearson had

few assets from which to pay a fine. Cf. Williams, 436 F.3d at 708 (“In discussing Williams’s

inability to pay a fine and in recommending an institution close to West Tennessee so that Williams

could be close to his family, the court took into account ‘the kinds of sentences available.’”) (citing

United States v. Hicks, 152 F. App’x 803, 809 (11th Cir. 2005) (holding that the district court, in

discussing the defendant's inability to pay a fine, addressed ‘the kinds of sentences available’”)).

Despite Pearson’s few assets, the court did order a $100 special assessment. The court also ordered

drug rehabilitation and the submission of DNA. Ibid. While the district court did not designate a

place of confinement, the court did note that, based on the length of Pearson’s sentence, it would

leave that determination to the Bureau of Prisons. Thus, the district court considered whether to pay

restitution and the different kinds of sentences available. Taken together, those considerations by

the district court amount to considerations of five out of the seven § 3553(a) factors.

       To be sure, the district court did not refer expressly to the two other § 3553(a) factors: policy

statements from the Sentencing Commission and sentencing uniformity. However, neither has any

impact here. Pearson presented nothing indicating that the Sentencing Commission has issued a

statement of policy bearing on his sentence. Moreover, although the district court failed to consider

expressly the § 3553(a)(6) sentencing uniformity concern, that factor is also not at issue. The

Sentencing Guidelines, which the district court did apply, take that concern into account. See United

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No. 05-6736
United States v. Pearson

States v. Johnson, 445 F.3d 339, 343 (4th Cir. 2006). Furthermore, given Pearson’s high criminal

history category and base offense level, most similarly situated defendants likely will receive similar

sentences even under a regime in which the Sentencing Guidelines are advisory. Under these

circumstances, it would be difficult for any district judge to conclude that Pearson’s sentence

undermines sentencing uniformity.

       It should be noted that the district court never expressly made reference to Pearson’s good

behavior while incarcerated awaiting sentencing. Certainly, the district court was obligated to

consider Pearson’s argument. Richardson, 437 F.3d at 554. However, the factor to which that

evidence presumably would have been relevant – “the history and characteristics of the defendant,”

see 18 U.S.C. § 3553(a)(1) – was demonstrably and extensively considered by the district court in

this case. Moreover, good behavior while incarcerated need not be accorded substantial weight at

sentencing. See, e.g., United States v. Gale, No. 05-4204, 2006 U.S. App. LEXIS 28666, at *27 (6th

Cir. Nov. 20, 2006) (“As for Gale’s good conduct since the offense, the district court noted that

during much of this period of time, Gale was either on probation related to an earlier offense or on

bond related to the present offense. It was not unreasonable for the district court to place little

weight on Gale’s simply doing ‘exactly what he has to do’ under the terms of his probation and

bond.”); United States v. Bowen, Nos. 05-1706, 05-1795, 2006 U.S. App. LEXIS 23161, at *40 (6th

Cir. Sept. 8, 2006) (“The arguments in favor of a below-Guidelines sentence consisted only of noting

Hall’s criminal history was based on rather old convictions he obtained at a young age and his good

behavior while incarcerated during this case . . . .”); United States v. Currie, 183 F. App’x 536, 539



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No. 05-6736
United States v. Pearson

(6th Cir. 2006) (“Currie next argues, without any legal support, that his sentence was unreasonable

in light of his good behavior in prison.”).

       As a result, it is evident that the district court provided enough reasoning to allow this court

to conduct a meaningful reasonableness review. Jackson, 408 F.3d at 305. The court considered

the pertinent § 3553(a) factors. Pearson offered the court little in rebuttal. His sentence was not

procedurally unreasonable. Williams, 436 F.3d at 708-09 (citing Johnson, 403 F.3d at 816); Kirby,

418 F.3d at 626; Contreras-Martinez, 409 F.3d at 1242.

                                                 III

       Pearson raises no challenges to his guidelines calculations on appeal. Instead, he challenges

his sentence as both substantively and procedurally unreasonable under United States v. Booker, 543

U.S. 220. Pearson’s arguments lack merit. We affirm.




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