US v. Armon Pinion, No. 10-4343 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4343 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ARMON LEWIS PINION, a/k/a Tony Faison, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:09-cr-00019-F-1) Submitted: October 13, 2011 Decided: October 31, 2011 Before MOTZ, SHEDD, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Samuel A. Forehand, LAW OFFICE OF SAMUEL A. FOREHAND, P.A., Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, John H. Bennett, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Armon Lewis Pinion was convicted by a jury of being a felon in possession of a firearm, in violation of 18 U.S.C. ยง 922(g)(1) (2006), for his July 9, 2008 possession of an Uzi semi-automatic rifle and a .45 caliber revolver. The district court sentenced Pinion to 120 months in prison. Pinion timely appeals, and we affirm. Pinion raises three issues on appeal, alleging that the district testimony as court erred hearsay; by (2) (1) excluding allowing portions testimony by of Wilson, his an informant, that he had in the past observed firearms in Pinion s possession; and (3) failing to place an individualized assessment on the record in imposing the sentence. We review the admissibility of evidence for abuse of discretion and will only overturn an evidentiary ruling that is arbitrary and irrational. United States v. Cole, 629 F.3d 146, 153 (4th Cir. 2011) (internal quotation marks omitted). Under Fed. R. Evid. 801(c), hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is generally not admissible in evidence. Fed. R. Evid. 802. Pinion contends that the disputed testimony was not offered for the truth of the matter asserted; rather, Pinion asserts that the statements 2 provided context for his testimony. However, even if this was so, the jury would have had to accept the statements as true in order to either bolster Pinion s credibility testimony. or provide a factual basis for his Therefore, our review of the record leads us to conclude that the district court did not abuse its discretion in excluding the testimony as hearsay. Next, Pinion contends that the district court erred in admitting Wilson s testimony regarding Pinion s prior possession of firearms. for an viewing Again, this court reviews such evidentiary rulings abuse the proponent, of discretion, evidence in maximizing its and the we assess light probative most value these rulings favorable and by to its minimizing its Cole, 631 F.3d at 153 (internal quotation prejudicial effect. marks omitted). Rule 401 provides for the admission of relevant evidence, which is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed. R. Evid. 401. [R]elevance typically presents a low barrier to admissibility. United States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003). Thus, evidence is relevant if it is worth consideration by the jury or has a plus value. United States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (internal quotation marks omitted). 3 Wilson s testimony regarding Pinion s prior possession of firearms provides a plus value in that it establishes a basis for Wilson s testimony that he believed that Pinion would have firearms for sale. conclude that the Our review evidence in of the question record was leads relevant us to and the district court did not abuse its discretion in allowing Wilson s testimony. Moreover, any error in admitting the testimony was harmless to Pinion because the district court gave the jury a See United States v. Byers, 649 proper limiting instruction. F.3d 197, 210-11. Lastly, Pinion claims that his sentence was procedurally unreasonable because the district court failed to place on the record an adequate individualized assessment based on the facts reasonableness, of the applying case. an We abuse review of a sentence discretion for standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Clay, 627 F.3d 959, 964 (4th Cir. 2010). examine the sentence for significant In so doing, we first procedural error, including failing to adequately explain the chosen sentence. Gall, 552 U.S. at 51. The district court must place on the record an individualized assessment based on the particular facts of the case before it. need not be elaborate or This individualized assessment lengthy, but it must provide a rationale tailored to the particular case at hand and adequate 4 to permit meaningful appellate review. United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 U.S. at 50) (footnote and citation omitted). While a district court and must sentence, consider it need the not statutory discuss factors every factor on explain the its record, particularly when the district court imposes a sentence within a United States v. Johnson, properly calculated Guidelines range. 445 F.3d 339, 345 (4th Cir. 2006). Our review of the records indicates that the district court did place a sufficient assessment of the facts of the case on the record, focusing on Pinion s criminal history, which spanned a fifty-year period and included many serious offenses. Therefore, the court did provide an adequate explanation for its within-Guidelines sentence. See Rita v. United States, 551 U.S. 338, 356-59 (2007); United States v. Hernandez, 603 F.3d 267, 271-72 (4th Cir. 2010). We conclude that Pinion s sentence is procedurally reasonable. Based on the foregoing, we affirm the judgment of the district facts court. and legal We dispense contentions with are oral argument adequately because presented in the the materials before the court and argument would not aid in the decisional process. AFFIRMED 5
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