United States of America v. Devan Pierson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 16, 2024
Decided January 16, 2024
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-1226
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEVAN PIERSON,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:16CR00206-001
Jane Magnus-Stinson,
Judge.
O R D E R
A jury found Devan Pierson guilty of possessing a controlled substance with
intent to distribute, 21 U.S.C. § 841(a)(1), carrying a firearm in relation to a drug
trafficking offense, 18 U.S.C. § 924(c), and possessing a firearm with a prior felony
conviction, id. § 922(g)(1). Pierson collaterally challenged his sentence successfully,
see 28 U.S.C. § 2255, and the district judge resentenced him below his guidelines range
to the statutory minimum sentence. Pierson appeals, but his appointed lawyer asserts
that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S.
738, 744 (1967). We notified Pierson of counsel’s motion and granted him an extension
of time to respond, but he never did. See CIR . R. 51(b). Counsel has submitted a brief that
explains the nature of the case and addresses the issues that a case of this kind might be
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-1226 Page 2
expected to involve. Because counsel’s brief appears thorough, we limit our review to
the subjects that counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014). From our review of the brief and the record, we conclude that Pierson does not
have an arguable issue on appeal. We thus grant the motion and dismiss the appeal.
At Pierson’s resentencing on his three counts of conviction, the probation office
proposed (and district judge adopted) a total guidelines range of 420 months to life.
This range was based on an offense level of 37 and a criminal history category of VI
(because Pierson was a career offender under the Guidelines), plus a mandatory
consecutive 60-month sentence for carrying a firearm in furtherance of a drug crime.
Pierson objected only to his classification as a career offender. He argued that his prior
drug offenses under state law should not count as predicates to a career-offender
designation under the Guidelines. He acknowledged that this position was “contrary to
the law in the Seventh Circuit,” see United States v. Ruth, 966 F.3d 642, 653–54 (7th Cir.
2020) (state drug offenses are predicate drug offenses for guidelines calculations), but
noted that the circuits are split on the issue and maintained his objection for further
review.
During resentencing, the judge heard the parties’ views on the appropriate
prison term. Pierson argued for a below-guidelines sentence of 240 months in prison
because of his difficult childhood and trauma, rehabilitation, and strong character. The
government urged the judge to sentence Pierson at the low end of the guidelines range,
based on the harm Pierson had done to his community and his lengthy criminal history.
After weighing the sentencing factors in 18 U.S.C. § 3553(a), including the impact of
guns and drugs on a community and Pierson’s personal growth since his initial
sentencing hearing, the judge sentenced him to 240 months in prison—the statutory
minimum, see 18 U.S.C. § 924(c)(1)(A)(i); id. § 924(a)(2); 21 U.S.C. § 841(b)(1)(A)—and
10 years’ supervised release. (In applying the statutory minimum, the judge noted that
the career-offender designation unduly enhanced the guidelines range for Pierson.) The
judge also imposed a $250 fine and a special assessment of $100 per count.
In his Anders brief, counsel first states that he consulted with Pierson and
confirmed that Pierson does not wish to challenge his conviction. Therefore counsel
properly refrains from discussing potential arguments related to his conviction.
See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012).
Next, counsel correctly concludes that Pierson could not plausibly challenge his
sentence on any procedural ground set forth in Gall v. United States, 552 U.S. 38, 49–51
(2007). The district judge did not err when she calculated the guidelines range, and

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No. 23-1226 Page 3
Pierson’s only objection—to the career-offender designation—is, as he admitted,
foreclosed by Seventh Circuit precedent. See Ruth, 966 F.3d at 653–54. In any event, the
career-offender designation did not affect Pierson’s sentence because he received the
statutory minimum, which did not depend on career-offender status. Likewise, the
sentence also did not exceed any statutory maximums. Finally, the judge adequately
explained the sentence by appropriately referencing the § 3553(a) factors.
Counsel also correctly concludes that Pierson could not reasonably argue that his
sentence is substantively unreasonable. To begin, as just mentioned, the district judge
sentenced him to the lowest possible sentence. And even if he had not received the
statutory minimum, we would presume that Pierson’s below-guidelines sentence is
reasonable. United States v. Jarigese, 999 F.3d 464, 473 (7th Cir. 2021). Further, nothing in
the record would rebut that presumption: The judge reasonably balanced the § 3553(a)
factors by addressing the nature of the offenses (the impact of drugs on the community,
including gun violence that often accompanies drug crimes) and Pierson’s personal
history and characteristics (his difficult childhood, including abuse, his criminal history,
his steps towards rehabilitation, and his exhibited remorse).
Counsel next considers and properly rejects challenging the term or conditions of
Pierson’s supervised release. The release term does not exceed the statutory maximum
and, because it is within the correctly calculated (and unobjected-to) range, we would
presume the term to be reasonable. See United States v. Jones, 774 F.3d 399, 404 (7th Cir.
2014). Further, nothing in the record would rebut this presumption, because the judge’s
explanation for the sentence applies equally to the term of supervised release.
United States v. Bloch, 825 F.3d 862, 869 (7th Cir. 2016). Counsel also correctly notes that
any challenge Pierson might raise to the term or conditions of supervised release would
be waived because he had advance notice of the term and conditions, confirmed that he
reviewed them with his attorney, and did not object. United States v. Flores, 929 F.3d 443,
449 (7th Cir. 2019).
Finally, counsel is correct that Pierson could not plausibly challenge the $250 fine
or the special assessment. The special assessment of $100 per conviction was
mandatory. 18 U.S.C. § 3013(a)(2)(A). And we see no nonfrivolous argument that the
$250 fine was clear error—the proper standard of review, United States v. Davis, 859 F.3d
429, 436 (7th Cir. 2017). It was below the low end of the guidelines range, and the judge
properly considered Pierson’s financial resources and ability to pay, both statutory
factors in determining the amount of a fine. See 18 U.S.C. § 3572(a).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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