US v. Luis Thomas

Filing 920090612

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4614 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUIS M. THOMAS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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