United States Court of Appeals

For the Eighth Circuit

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No. 22-1653

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Lawrence Cannon

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Northern

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 Submitted: January 9, 2023

Filed: April 25, 2023

[Unpublished]

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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges. 

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PER CURIAM.

On May 10, 2019, Lawrence Cannon and his cousin went to a nightclub in

Jonesboro, Arkansas. In the early morning hours of May 11, an “extremely

intoxicated” Cannon left the club and retrieved a handgun with an extended magazine

from his vehicle. Security staff saw the gun and stopped Cannon from reentering the

crowded club. He stated, “I have to protect my people.” When an off-duty police
officer saw the gun and arrested Cannon, he said “I’m a felon. I have got a gun. I

was trying to protect my people.” Charged with being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g), Cannon pleaded guilty on the eve of trial. 

The Presentence Investigation Report, to which neither party objected,

determined that Cannon’s base offense level is twenty-two, his total offense level is

twenty based on a two-level adjustment for acceptance of responsibility, and his

Criminal History Category is VI, resulting in an advisory guidelines sentencing range

of 70-87 months imprisonment. In a Sentencing Memorandum, Cannon argued for

a downward variance, in part because his offense behavior “arose solely from his

desire to defend his cousin from harm.” His intent was not “to argue justification”

but to “explain in mitigation” that his actions arose from “a pure and lawful

motivation.” Early in the lengthy sentencing hearing, government counsel argued:

Your Honor, it is the United States’s position that the Defendant has not

. . . fully accepted responsibility for this offense.

The Defendant pled on the day of trial, on the morning of trial. 

And furthermore, in a sentencing memorandum filed yesterday at 5:15,

the Defendant seems to attempt to mitigate or even equivocate some of

the offense conducted, insofar as he is asking for leniencies, because the

conduct was, in a way justified.

The district court1 noted that neither pleading guilty the day before trial nor arguing

for a lesser sentence based on mitigating circumstances is inconsistent with an

acceptance of responsibility adjustment. The court overruled the government’s

objection, allowed Cannon a two-level adjustment, and determined that the advisory

guidelines range is 70-87 months. 

1The Honorable Lee P. Rudofsky, United States District Judge for the Eastern

District of Arkansas.

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Cannon requested a downward variance, arguing as mitigating factors his belief

that his offense conduct was justified by a concern for his cousin’s safety in the

nightclub, his intoxication and history of substance abuse, and his cooperation with

police when arrested. The government requested an upward variance to 100 months

imprisonment, citing the seriousness of the offense, Cannon’s noncompliant pretrial

record, drug use during probation, criminal history, and because “the United States

believes that there hasn’t been true remorse here, and there hasn’t been a full

admittance of guilt.” 

After hearing argument, the district court denied Cannon’s request for a

downward variance, and granted the government’s request for an upward variance but

not to the extent or for the reasons the government urged. The court explained that

the offense conduct -- while inebriated, to “get a gun and try to bring it into a location

with hundreds of people with the idea that you are going to either use it or scare

people with it” -- “is among the most dangerous offense conduct there can be for a

felon in possession.” Cannon’s criminal history suggested a “significant disrespect

for the law” that was “getting worse, not better.” Cannon did not present evidence

supporting his mitigation argument, but in any event “certainly if you’re a felon, but

quite frankly if you are anybody, you cannot do what Mr. Cannon did.” The court

concluded that Cannon’s mitigating circumstances were outweighed by his offense

conduct and serious criminal history. The court said it “totally ignored” the way the

government came to its 100-month request:

I didn’t think the two-[level] issue was something that I should

concentrate on at all. What really affected me here was general

deterrence and protection of the public, and the seriousness of the

offense.

The court sentenced Cannon to 96 months imprisonment. 

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Cannon raises a single issue on appeal: “The sentence is procedurally

unreasonable because the District Court granted the government’s motion to vary

premised on a subjective belief unsupported by any eviden[ce],” namely, that

“Cannon’s mitigation argument demonstrated a lack of remorse for his crime.” This

clearly erroneous finding “conflated mitigation with justification.” Cannon did not

raise this claim of procedural error at sentencing, so our review is for plain error. See

United States v. Burnette, 518 F.3d 942, 946 (8th Cir. 2008). But in any event, the

contention is without merit because it misstates the sentencing record. 

The district court granted the government’s request for an upward variance but

not for the reasons the government urged. The court made no reference to lack of

remorse. The court expressly stated that it did not consider “the two-[level] issue,”

explaining at length its own reasons for imposing an upward variance to 96 months,

reasons firmly grounded in the offense conduct, Cannon’s criminal history and

characteristics, and the 18 U.S.C. § 3553(a) sentencing factors. The court did not

“conflate[] mitigation with justification,” whatever that means. There was no

procedural error, much less plain error.

The judgment of the district court is affirmed. 

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