US v. Phonepadith Thadsamany

Filing 920090115

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-5139

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PHONEPADITH THADSAMANY, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:06-cr-00178-FDW-CH-4)

Submitted:

December 19, 2008

Decided:

January 15, 2009

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Phonepadith Thadsamany appeals from his conviction and 150-month sentence imposed following a jury trial on charges of conspiracy to possess with intent to distribute Ecstasy and

possession and attempted possession with intent to distribute Ecstasy, 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2007), and 18 U.S.C. § 2 (2006). court erred by On appeal, he contends that the district evidence and son, of that threats the against a

admitting girlfriend

coconspirator's

district

court

erred by denying his motion for judgment of acquittal, and that the sentence imposed was unreasonable. Finding no error, we

affirm Thadsamany's conviction and sentence. The purchase evidence showed that Somlet Sisouk arranged to

5000

Ecstacy

pills

from

Kongmany

Sibounheung.

Sibounheung contacted Thadsamany and arranged to purchase 10,000 Ecstacy pills from him in order to provide half to Sisouk and half to another buyer. Thadsamany and Sibounheung were arrested

when they were on the way to meet Sisouk. Over government that, to Thadsamany's present weeks objection, from the court allowed the

evidence

Sibounheung's and

girlfriend were

three

after

Thadsamany

Sibounheung

arrested, three men came to her workplace seeking to collect money that Sibounheung owed for "stuff" that was taken away. They threatened to hurt the girlfriend and her son if they did 2

not

get

the

money.

Sometime

after

that,

Sibounheung's

car,

which his girlfriend drove to work, was broken into and bags of clothes, a television and some items that Sibounheung had hidden in the car, were stolen. The court found the evidence admissible as intrinsic evidence of the conspiracy, noting that "threats of violence, just like use of firearms are tools of the trade of drug

trafficking." to explain

The court also allowed the evidence as relevant Sibounheung's fear about testifying and why he

initially did not fully cooperate with the government. no abuse of discretion in this ruling.

We find

See Fed. R. Evid. 403;

United States v. Rivera, 412 F.3d 562, 571 (4th Cir. 2005); United States v. Mohr, 318 F.3d 613, 618 (4th Cir. 2003); see also United States v. Thomas, 86 F.3d 647, 654 (7th Cir. 1996) (threat evidence is admissible if relevant to explain a witness' inconsistent statements). Thadsamany next argues that the district court erred by denying his motion only for that judgment he was of acquittal in a because the

evidence

showed

involved

buyer-seller

relationship, not a conspiracy. argument in his motion for

Thadsamany did not raise this in the district court;

acquittal

therefore, we review for plain error.

United States v. Higgs,

353 F.3d 281, 309 (4th Cir. 2003); see United States v. Stewart, 129 F. App'x 758, 766 (4th Cir. 2005). 3

Viewing the evidence in the light most favorable to the Government, we find that a rational factfinder could find the existence of a conspiracy beyond a reasonable doubt. United

States v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996); see United States v. Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (quoting United States v. Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1993)). Accordingly, there was no plain error by the court in allowing the case to go to the jury on the conspiracy charge. States v. Olano, 507 U.S. 725, 732-34 (1993). Thadsamany's final contention is that the district See United

court improperly applied the sentencing factors in determining an appropriate sentence. Appellate courts review sentences

imposed by district courts for reasonableness, applying an abuse of discretion standard. Gall v. United States, 128 S. Ct. 586,

597 (2007); see United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). (1) properly When sentencing a defendant, a district court must: calculate the guideline range; (2) treat the

guidelines as advisory; (3) consider the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); and (4) explain its reasons for selecting a sentence. presume that a sentence Pauley, 511 F.3d at 473. the properly We

within

calculated

sentencing guidelines range is reasonable.

United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 127 S. Ct. 2456, 4 2462-69 (2007) (upholding

application of rebuttable presumption of correctness of within guideline sentence). The sentencing district court followed the the necessary steps by in a

Thadsamany.

First,

court

found,

preponderance of the evidence, that Thadsamany was responsible for 10,000 pills. The court then properly determined The be

Thadsamany's advisory guideline range of 121 to 151 months. court noted that the guideline range is presumed to

reasonable and addressed what sentence would be sufficient, but not greater than necessary to accomplish the sentencing goals, and considerered the sentencing factors enumerated in § 3553(a). The court specifically addressed the need to promote respect for the law and provide just punishment, and the seriousness of the offense. count, to Finally, the court determined that 150 months on each run concurrently, would accomplish the sentencing

goals of § 3553(a). Although the court noted that the applicable guideline range was presumed on appeal to be reasonable, it did not stop the analysis there. See, e.g., Gall, 128 S. Ct. at 597 (noting

that sentencing court may not presume that a within-guideline sentence is reasonable, but rather must "make an individualized assessment based on the facts presented"). then appropriately addressed the Rather the court factors and

§ 3553(a)

determined what sentence would fulfill the sentencing goals. 5

We find that the district court followed the necessary steps in determining an appropriate sentence for Thadsamany and that the 150-month sentence, which is within the advisory

guideline range, is reasonable.

Accordingly, we find no abuse

of discretion in Thadsamany's sentence. Having finding sentence. legal before no reviewed we the issues asserted on appeal and and

error,

affirm

Thadsamany's

conviction

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. AFFIRMED

6