United States of America v. Samuel Pearson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 18, 2009
Decided February 20, 2009
Before
WILLIAM J. BAUER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08‐1129
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
SAMUEL PEARSON,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 06 CR 824‐1
Amy J. St. Eve,
Judge.
O R D E R
Samuel Pearson pleaded guilty, without a plea agreement, to possession of a firearm
by a felon. See 18 U.S.C. § 922(g)(1). Because he had already been convicted of at least three
burglaries punishable by a prison term of at least one year, Mr. Pearson was sentenced as an
armed career criminal to 192 months’ imprisonment, near the bottom of the guidelines
range. See id. § 924(e)(1). Mr. Pearson filed a notice of appeal, but his appointed counsel
now seeks to withdraw because he cannot discern a non‐frivolous basis for appeal. See
Anders v. California, 386 U.S. 738 (1967). We invited Mr. Pearson to comment on counsel’s
motion; he did not respond. See CIR. R. 51(b). We therefore address only the potential
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐1129 Page 2
issues raised in counsel’s supporting brief. See United States v. Schuh, 289 F.3d 968, 973‐74
(7th Cir. 2002).
Counsel first considers whether Mr. Pearson could challenge his classification as an
armed career criminal because the facts of his prior convictions were neither proven to a
jury nor admitted by him. But counsel properly notes that this argument is foreclosed by
Almendarez‐Torres v. United States, 523 U.S. 224 (1998). Prior convictions may be used as the
basis for an armed career criminal sentence and need not be charged in the indictment,
proven to the jury, or admitted by the defendant. See id.; United States v. Jordan, 485 F.3d
982, 984 (7th Cir. 2007).
Counsel next contemplates whether Mr. Pearson could argue that his prior burglary
convictions were not “violent felonies” under 18 U.S.C. § 924(e)(2)(B)(ii). At sentencing Mr.
Pearson had argued that his burglaries of businesses and a garage did not satisfy the
statutory definition of burglary. However, burglary of any building or structure is per se a
“violent felony.” See Taylor v. United States, 495 U.S. 575, 598 (1990); Stallings v. United
States, 536 F.3d 624, 625 n.1 (7th Cir. 2008).
Counsel then considers whether Mr. Pearson could seek a lower sentence based on
the allegedly substandard conditions of his pretrial confinement in Kankakee County Jail.
At sentencing Mr. Pearson asserted that the meals, beds, recreational activities, and medical
care, along with telephone, commissary, and visitation privileges at Kankakee are inferior to
those at the Metropolitan Correctional Center. However, conditions of pretrial confinement
are not among the factors that judges must consider in crafting a reasonable sentence. See 18
U.S.C. 3553(a)(2); United States v. Ramirez‐Gutierrez, 503 F.3d 643, 645‐46 (7th Cir. 2007).
Furthermore, though we have not decided whether extraordinarily harsh conditions of
confinement might justify a lowered sentence, United States v. Campos, 541 F.3d 735, 751 (7th
Cir. 2008), such a challenge would fail. First, Mr. Pearson did not support his claims with
affidavits or other evidence documenting conditions at Kankakee County Jail. See id.
Second, the conditions at Kankakee, even as described by Mr. Pearson, do not compare with
those found by other circuits to warrant a reduced sentence. See, e.g., United States v.
Pressley, 345 F.3d 1205, 1219 (11th Cir.2003) (concluding, pre‐Booker, that six‐year pre‐
sentence confinement, where defendant had not been outside in five years and spent 23
hours per day in lock‐down, could justify downward departure); United States v. Carty, 264
F.3d 191, 193, 196‐97 (2d Cir. 2001) (concluding, pre‐Booker, that district court had discretion
to lower sentence based on defendant’s eight months in tiny unlit cell in foreign prison); see
also Ramirez‐Gutierrez, 503 F.3d at 646 (distinguishing conditions at the Kankakee County
Jail from those that Pressley and Carty found unusually harsh).
Counsel lastly evaluates whether Mr. Pearson could challenge his 192‐month
sentence as unreasonable. A sentence that falls within a correctly calculated guidelines

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No. 08‐1129 Page 3
range is presumptively reasonable, so long as the district court meaningfully considered the
factors set forth in 18 U.S.C. § 3553(a). See Rita v. United States, 127 S.Ct. 2456, 2462‐64
(2007); United States v. Shannon, 518 F.3d 494, 496 (7th Cir.2008); United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir.2005). Here, as counsel observes, the court discussed those
factors, noting that a within‐guidelines sentence was justified by Mr. Pearson’s persistent
recidivism, the risk inherent in gun possession by a felon, and the need to protect the public
from any of Pearson’s future crimes. Counsel discerns no reason to overturn the
presumption of reasonableness, and neither do we.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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