     13-2238-cr
     USA v. Pressley


                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of March, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROBERT D. SACK,
 8                RAYMOND J. LOHIER, JR.,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                     -v.-                                              13-2238-cr
16
17       LEROY PRESSLEY,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        DONALD CRETELLA, Zingaro &
22                                             Cretella, LLC, Bridgeport,
23                                             Connecticut.
24
25       FOR APPELLEE:                         ROBERT M. SPECTOR, Assistant
26                                             United States Attorney (Sandra
27                                             S. Glover, Assistant United

                                                  1
 1                              States Attorney (Of Counsel), on
 2                              the brief), for Deirdre M. Daly,
 3                              Acting United States Attorney
 4                              for the District of Connecticut,
 5                              New Haven, Connecticut.
 6
 7        Appeal from a sentence of the United States District
 8   Court for the District of Connecticut (Burns, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        Leroy Pressley appeals from a judgment of conviction
15   entered on May 23, 2013, following his guilty plea to
16   possession of a firearm by a convicted felon, in violation
17   of 18 U.S.C. §§ 922(g)(1) and 942(a)(2). We assume the
18   parties’ familiarity with the underlying facts, the
19   procedural history, and the issues presented for review.
20
21        At sentencing, Pressley requested a below-Guidelines
22   sentence of time served (then about 33 months). Pressley
23   did not dispute that he faced a Guidelines range of 46 to 57
24   months; rather, he argued that a downward departure was
25   warranted because of his difficult upbringing and potential
26   to be a leader of the community. The district court
27   disagreed, sentencing Pressley to 57 months. Pressley now
28   appeals on the grounds that his sentence is procedurally and
29   substantively unreasonable.
30
31        We review criminal sentences for reasonableness. This
32   is a deferential standard of review. See Gall v. United
33   States, 552 U.S. 38, 51 (2007) (“The fact that the appellate
34   court might reasonably have concluded that a different
35   sentence was appropriate is insufficient to justify reversal
36   of the district court.”). “Reasonableness review requires
37   an examination of the length of the sentence (substantive
38   reasonableness) as well as the procedure employed in
39   arriving at the sentence (procedural reasonableness).”
40   United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009).
41   The standard of review for both inquiries is abuse of
42   discretion. United States v. Verkhoglyad, 516 F.3d 122, 127
43   (2d Cir. 2008).
44

                                  2
 1   A.   Procedural Challenge.
 2
 3        “A district court commits procedural error where it
 4   fails to calculate (or improperly calculates) the Sentencing
 5   Guidelines range, treats the Sentencing Guidelines as
 6   mandatory, fails to consider the [18 U.S.C.] § 3553(a)
 7   factors, selects a sentence based on clearly erroneous
 8   facts, or fails adequately to explain the chosen sentence.”
 9   United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012)
10   (citing Gall, 552 U.S. at 51).
11
12        Pressley asserts in conclusory fashion that the
13   district court “improperly calculat[ed] the sentence,
14   therefore resulting in an unreasonable and inappropriate top
15   of the guidelines [sentence] sought by the Government.”
16   Appellant’s Br. 7. He also seems to take issue with the
17   district court’s failure to depart from the Guidelines.
18
19        Pressley’s vague claims of procedural error are
20   unsupported by argument and, in any event, without merit.
21   Although Pressley’s plea agreement calculated a preliminary
22   Guidelines range of 41 to 51 months, that calculation was
23   “preliminary” and, as the presentencing report ultimately
24   demonstrated, incorrect. Tr. of Sentencing at 12, May 23,
25   2013. At the sentencing hearing, Pressley agreed that the
26   presentencing report’s calculation (46 to 57 months) was
27   accurate. Id. at 12-13.
28
29        More broadly, there is no indication from the record
30   that the district court rejected Pressley’s arguments (for
31   leniency or a downward departure) based on a
32   misunderstanding of the Guidelines. Rather, it is clear
33   that the court took seriously the impassioned statements
34   from Pressley and his supporters concerning Pressley’s
35   mitigating arguments and potential to rehabilitate
36   himself--and the Government’s request for an upward
37   departure was rejected. In the end, the district court
38   simply did not accept that Pressley’s troubled upbringing
39   should mitigate culpability for his crime, particularly in
40   light of his post-indictment conduct and the seriousness of
41   the offense of conviction. The district court carefully
42   explained its 57-month sentence, as required by the
43   Guidelines and our case law. We accordingly reject
44   Pressley’s claims of procedural error.

                                  3
 1   B.   Substantive Challenge.
 2
 3        Pressley’s perfunctory briefing claims that his
 4   sentence “was unwarranted, unreasonable and excessive.”
 5   Appellant’s Br. 6. Construing this as a challenge to
 6   substantive reasonableness, we affirm.
 7
 8        “In reviewing [a sentence] for substantive
 9   reasonableness, we consider the totality of the
10   circumstances, and reverse only in exceptional cases where
11   the trial court’s decision cannot be located within the
12   range of permissible decisions[.]” United States v. Mason,
13   692 F.3d 178, 181 (2d Cir. 2012) (internal quotation marks
14   and citation omitted). The standard “provide[s] a backstop
15   for those few cases that, although procedurally correct,
16   would nonetheless damage the administration of justice
17   because the sentence imposed was shockingly high, shockingly
18   low, or otherwise unsupportable as a matter of law.” United
19   States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
20
21        Pressley’s 57-month sentence is within the properly-
22   calculated Guidelines range. Although we do not presume
23   that a sentence within the Guidelines range is reasonable,
24   we “recognize that in the overwhelming majority of cases, a
25   Guidelines sentence will fall comfortably within the broad
26   range of sentences that would be reasonable in the
27   particular circumstances.” United States v. Fernandez, 443
28   F.3d 19, 27 (2006). Based on our review of the record, and
29   taking into account Pressley’s offense of conviction, his
30   lengthy criminal history, and his post-offense conduct (such
31   as assaulting a fellow inmate), we cannot conclude that the
32   district court’s Guidelines-range sentence is substantively
33   unreasonable.
34
35        For the foregoing reasons, and finding no merit in
36   Pressley’s other arguments, we hereby AFFIRM the judgment of
37   the district court.
38
39                                 FOR THE COURT:
40                                 CATHERINE O’HAGAN WOLFE, CLERK
41




                                    4
