US v. Puran Phulwani

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00369-TDS-1 Copies to all parties and the district court. [1000043209]. [16-4574]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4574

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PURAN HARISH PHULWANI,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:15-cr-00369-TDS-1)

Submitted:

March 14, 2017

Decided:

March 16, 2017

Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by unpublished per curiam opinion.

Brian Michael Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North
Carolina, for Appellant.
Ripley Rand, United States Attorney,
Graham T. Green, Assistant United States Attorney, Winston-Salem,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Puran

Harish

Phulwani

pled

guilty

to

two

counts

of

communicating threats, in violation of 18 U.S.C. § 876(c) (2012).
The district court sentenced him to 44 months in prison as to each
count, to be served concurrently.

Phulwani argues on appeal that

the district court erred in denying him a reduction in offense
level for acceptance of responsibility pursuant to U.S. Sentencing
Guidelines Manual § 3E1.1 (2015), and that the district court erred
by declining to impose a downward departure or variance based on
his mental health issues.

We affirm.

This court reviews a district court’s decision to deny an
acceptance of responsibility adjustment for clear error.
States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999).

United

A defendant’s

postindictment criminal conduct may be sufficient justification
for a district court’s finding that the defendant has not fully
accepted responsibility for his criminal behavior, United States
v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993), even where the underlying
offense involves dissimilar conduct, United States v. Shivers, 146
Fed. Appx. 609, 611-12 (4th Cir. 2005).

We have reviewed the

briefs and materials submitted in the joint appendix and find no
clear error in the district court’s decision to deny Phulwani a
reduction in offense level for acceptance of responsibility based
on his postindictment conduct.

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Phulwani also contends that the district court erred by
declining to impose a downward departure or a downward variant
sentence in light of his mental health issues.
district

court’s

sentence,

“whether

inside,

We review the

just

outside,

or

significantly outside the Guidelines range,” for reasonableness
“under

a

deferential

abuse-of-discretion

United States, 552 U.S. 38, 41 (2007).
within

a

properly

calculated

standard.”

Gall

v.

We presume that a sentence

advisory

Guidelines

range

is

reasonable, and this “presumption can only be rebutted by showing
that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) [(2012)] factors.”

United States v. Louthian,

756 F.3d 295, 306 (4th Cir. 2014).
The

district

court

considered

Phulwani’s

request

for

a

24-month variant sentence in light of his mental health issues,
but concluded that his lengthy criminal history, the need for
deterrence, and the need to protect the public warranted a 44-month
sentence.

Phulwani has not overcome the presumption that the

district court’s decision to deny his variance request and impose
a within-Guidelines sentence was reasonable.

See Louthian, 756

F.3d at 306.
Insofar as Phulwani seeks review of the district court’s
decision not to depart downward in sentencing him, we “lack the
authority to review a sentencing court’s denial of a downward
departure,” as the record does not suggest that “the court failed
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to understand its authority to do so.”
662

F.3d

671,

686

(4th

Cir.

2011)

United States v. Hackley,
(internal

quotation

marks

omitted). Accordingly, we affirm Phulwani’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
AFFIRMED

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