US v. Luis Thomas

Filing 920090612

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4614

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUIS M. THOMAS, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:07-cr-00445-HEH-1)

Submitted:

April 29, 2009

Decided:

June 12, 2009

Before WILKINSON, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mark Diamond, Richmond, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, John S. Davis, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: A traffic in jury convicted Luis goods, M. 18 Thomas of conspiracy § 371 to

counterfeit

U.S.C.

(2006),

trafficking in counterfeit goods, 18 U.S.C. § 2320 (2006), and engaging in monetary transactions in property derived from The the

unlawful activity (three counts), 18 U.S.C. § 1957 (2006). court sentenced Thomas to 60 months' imprisonment on

conspiracy conviction and concurrent 63-month sentences on the remaining convictions. Thomas appeals his sentence, arguing

that the district court erred in (1) not explicitly stating its determination § 3553(a) of the (2) sentencing imposing a factors two-level under 18 U.S.C. role

(2006);

aggravating

enhancement under U.S. Sentencing Guidelines Manual § 3B1.1(c) (2007); and (3) declining to grant him a two-level reduction for acceptance of responsibility under USSG § 3E1.1. reversible error, we affirm. Thomas first argues that the district court erred in failing "to make a reasoned on-the-record determination," as to the 18 U.S.C. § 3553(a) sentencing factors. Thomas specifically Finding no

asserts that the district court failed to address two related cases, those of his imputed co-conspirators, and therefore

failed to adequately consider "the need to avoid unwarranted sentence disparities among defendants with similar records who

2

have

been

found

guilty

of

similar

conduct."

18

U.S.C.

§ 3553(a)(6). We review a sentence for reasonableness under an

abuse-of-discretion standard. 586, 597 (2007). of both the

Gall v. United States, 128 S. Ct.

This review requires appellate consideration and substantive reasonableness of a

procedural

sentence.

Id. at 597.

Contrary to Thomas' argument, there were

simply no infirmities at sentencing. In determining whether a sentence is procedurally

reasonable, this court must first assess whether the district court range. calculated properly Id. calculated at 596-97. range the A defendant's sentence be advisory the an guideline properly appellate

within

guideline

may

afforded

presumption of reasonableness.

Rita v. United States, 551 U.S. This court must

338, ___, 127 S. Ct. 2456, 2459, 2462 (2007).

then consider whether the district court failed to consider the 18 U.S.C. § 3553(a) factors and any arguments presented by the parties, selected a sentence based on "clearly erroneous facts," or failed to sufficiently explain the selected sentence. Gall,

128 S. Ct. at 597; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). reasonableness `totality of of the Finally, this court reviews the substantive the sentence, "taking including into the account extent of the any

circumstances,

3

variance from the Guidelines range.'" (quoting Gall, 128 S. Ct. at 597).

Pauley, 511 F.3d at 473

In evaluating the sentencing court's explanation of a selected sentence, this court has consistently held that, while a district court must consider the statutory factors and explain its sentence, it need not explicitly reference § 3553(a) or

discuss every factor on the record, particularly when the court imposes range. 2006). a sentence within a properly calculated guidelines

United States v. Johnson, 445 F.3d 339, 345 (4th Cir. But at the same time, the district court "must make an Gall,

individualized assessment based on the facts presented." 128 S. Ct. at 597. individualized

Moreover, the district court must state the that justify a sentence, even when

reasons

sentencing a defendant within the guidelines range. U.S. at , 127 S. Ct. at 2468.

Rita, 551

The reasons articulated by the

district court for a given sentence need not be "couched in the precise language of § 3553(a)," so long as the "reasons can be matched to a and factor [were] appropriate clearly for to consideration [the under

[§ 3553(a)]

tied

defendant's]

particular situation." 658 (4th Cir. 2007).

United States v. Moulden, 478 F.3d 652,

Here, in addition to stating that it considered "all the factors set forth in [§ 3553(a)]" in determining Thomas' sentence, by evaluating Thomas' 4 lengthy involvement in

counterfeit

trafficking,

his

decision

to

involve

his

family

members in the illegal activity and the scale of his operations, the district court clearly Thomas' district considered background court heard particular and § 3553(a)

factors,

namely, the

characteristics. argument

Furthermore,

significant

regarding Thomas' imputed co-conspirators and the need to avoid unwarranted sentence disparities and ultimately distinguished

Thomas' case.

It is clear that the district court not only

explicitly stated its consideration of the § 3553(a) factors, in accordance with the standards set forth in Gall, but it also articulated how the sentencing factors applied to the facts of this particular case. We therefore find Thomas' sentence

procedurally reasonable. Thomas enhanced his also argues for his the district as a court improperly in the

sentence

role

supervisor

offense because he and his wife were "equal partners" in the business. The district court's determination that the defendant

warrants a sentence enhancement is reviewed for clear error. United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). A

defendant qualifies for a two-level aggravating role enhancement if he is an "organizer, leader, manager, or supervisor in any criminal activity." USSG § 3B1.1(c). We have reviewed the

district court's findings and find no clear error in the court's two-level enhancement. 5

Last,

Thomas

contends

the

district

court

erred

by

declining to reduce his offense level based on acceptance of responsibility under USSG § 3E1.1. to deny an offense level A district court's decision for acceptance of

reduction

responsibility is reviewed for clear error. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). denied the reduction based on its finding

United States v. The district court that Thomas never

admitted he knew the goods were counterfeit. error in this determination. (n.2) (A defendant for may go

We find no clear

See also USSG § 3E1.1, comment. to of trial and still receive but an such

adjustment

acceptance

responsibility,

circumstances are rare and only warranted if the defendant went to trial "to assert and preserve issues that do not relate to factual guilt."). Finding sentence. legal before no abuse of discretion, we affirm Thomas'

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