US v. Luis Thomas
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
April 29, 2009
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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
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
§ 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
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
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
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
sentencing a defendant within the guidelines range. U.S. at , 127 S. Ct. at 2468.
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
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
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)
regarding Thomas' imputed co-conspirators and the need to avoid unwarranted sentence disparities and ultimately distinguished
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
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
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
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
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
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