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 1

st 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.
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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 twolevel 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 stillloaded 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