12-4790-cr
United States v. Pearson

                  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 TO 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 1st day of November, two thousand thirteen.

PRESENT:    ROBERT D. SACK,
            DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                      Circuit Judges.

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UNITED STATES OF AMERICA,
                    Appellee,

                           -v-                            12-4790-cr

ANTHONY PEARSON,
                           Defendant-Appellant.

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FOR APPELLEE:                        JONATHAN S. FREIMANN, Assistant
                                     United States Attorney (Sandra S.
                                     Glover, Assistant United States
                                     Attorney, on the brief), for
                                     Deirdre M. Daly, Acting United
                                     States Attorney for the District
                                     of Connecticut, Hartford,
                                     Connecticut.
FOR DEFENDANT-APPELLANT:        GARY D. WEINBERGER, Assistant
                                Federal Defender, for Terence S.
                                Ward, Federal Defender, Hartford,
                                Connecticut.

            Appeal from the United States District Court for the

District of Connecticut (Bryant, J.).

            UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

            Defendant-appellant Anthony Pearson appeals from a

judgment entered November 28, 2012, convicting him, following a

plea of guilty, of one count of unlawful possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

The district court sentenced Pearson principally to a term of

imprisonment of 64 months.

            We assume the parties' familiarity with the facts,

procedural history of the case, and issues for review.

            Prior to this conviction, Pearson had four felony

convictions, including two for violent robberies and one for the

illegal possession of a firearm.    On December 30, 2011, Pearson

attempted to purchase marijuana from a purported drug dealer in

Hartford.    Pearson paid the dealer, but the dealer refused to

give Pearson the marijuana or to pay Pearson back.    The dealer

then approached Pearson in a "menacing manner."    Appellant's Br.

at 3.   In response, Pearson pulled out a nine-millimeter pistol

and fired it in the direction of a nearby residential building.


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Pearson pled guilty to one count of unlawful possession of a

firearm by a convicted felon, and the district court sentenced

him to 64 months' imprisonment.

           On appeal, Pearson challenges his sentence on both

procedural and substantive grounds.     We review a sentence for

both substantive and procedural reasonableness under a

deferential abuse-of-discretion standard.    Gall v. United

States, 552 U.S. 38, 41 (2007); United States v. Cavera, 550

F.3d 180, 187 (2d Cir. 2008) (en banc).

A.    Procedural Reasonableness

           Pearson argues that his sentence is procedurally

unreasonable.   The district court commits procedural error when

it:

           (1) fails to calculate the Guidelines range;
           (2) is mistaken in the Guidelines
           calculation; (3) treats the Guidelines as
           mandatory; (4) does not give proper
           consideration to the § 3553(a) factors;
           (5) makes clearly erroneous factual
           findings; (6) does not adequately explain
           the sentence imposed; or (7) deviates from
           the Guidelines range without explanation.

Watkins, 667 F.3d at 261 (quoting United States v. Conca, 635

F.3d 55, 62 (2d Cir. 2011)).

           Pearson argues that the district court failed to give

proper consideration to the § 3553(a) factors.    In particular,

he argues that the district court failed to consider mitigating

factors before sentencing him, and points specifically to the

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district court's comment at sentencing that "[his] history and

characteristic[s] d[id] not in any way mitigate [his] conduct."

Pearson attempts to characterize this statement as impermissibly

"imbued with exclusionary language."      See Wright v. Walls, 288

F.3d 937, 943-44 (7th Cir. 2002).

           The argument fails.    The record demonstrates that the

district court considered the mitigating factors, but simply

declined to assign any significant weight to Pearson's personal

history and mental illness.      As this Court held in United States

v. Bonilla, "The District Court here considered all arguments of

counsel and fully stated the reasons for the sentence imposed,

and that was all that was required."     618 F.3d 102, 111 (2d Cir.

2010).   Although Pearson may disagree with the balance struck by

the district court, reaching that balance "is a matter firmly

committed to the discretion of the sentencing judge and is

beyond [appellate] review."      United States v. Fernandez, 443

F.3d 19, 32 (2d Cir. 2006).

B.   Substantive Reasonableness

           Pearson also argues that his sentence is substantively

unreasonable.   In examining the substantive reasonableness of a

sentence, we review the length of the sentence imposed to

determine whether it "cannot be located within the range of

permissible decisions."     Watkins, 667 F.3d at 261 (internal

quotation marks omitted).    "In the overwhelming majority of

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cases, a Guidelines sentence will fall comfortably within the

broad range of sentences that would be reasonable in the

particular circumstances."   Id. (alteration and internal

quotation marks omitted).

         Pearson presents only one argument in support of a

finding of substantive unreasonableness.   He argues that "a

sentence closer to the bottom end of the guideline range . . .

would have been appropriate" because "his personal trajectory is

not one of increasing violence and disdain for others so much as

mental and institutional drift."   Appellant's Br. 12.

         We conclude that Pearson's sentence of 64 months'

imprisonment was substantively reasonable.   That sentence fell

in the middle of the Guidelines range resulting from the two-

level upward departure which the district court applied to

capture the seriousness of Pearson's offense: pulling a gun to

settle a dispute over $30 of marijuana; firing several shots in

the direction of a residential building; discarding the still-

loaded firearm in a residential backyard; and fleeing police

pursuit into a stranger's apartment.   Considering Pearson's four

prior felony convictions (including two for violent robbery and

one for illegal possession of a firearm), the aggravating

circumstances of the instant offense, and the psychological

evaluation's conclusion that Pearson "had the ability to conform

[his] conduct to the requirements of law," the 64-month sentence

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was well within the range of reasonableness.    The district

court's conclusion that such a sentence was sufficient, but not

greater than necessary, to accomplish the goals of sentencing

was therefore not substantively unreasonable.

                           CONCLUSION

         We have considered the defendant's remaining arguments

and conclude they are without merit.    Accordingly, we AFFIRM the

judgment of the district court.

                              FOR THE COURT:
                              Catherine O'Hagan Wolfe, Clerk




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