USA v. Mark Wagner

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USA v. Mark Wagner

Doc. 0

Case: 09-41120

Document: 00511219988

Page: 1

Date Filed: 08/31/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41120 S u m m a r y Calendar August 31, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M A R K ANTHONY WAGNER, also known as Lothar Starsinsky, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:91-CR-233-7

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* I n 1991, Mark Anthony Wagner pleaded guilty to conspiracy to possess w it h intent to distribute more than 100 kilograms of marijuana. Wagner, who w a s released on bond, failed to appear for his sentencing hearing. He was a r r e s t e d pursuant to a warrant in 2009, when he attempted to reenter the U n ite d States from Germany. A revised presentence report (PSR) was prepared a n d recommended an increase in Wagner's offense level for obstruction of justice. The PSR also recommended a deduction of the two points awarded previously for
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-41120

Document: 00511219988 Page: 2 No. 09-41120

Date Filed: 08/31/2010

a c c e p t a n c e of responsibility. The district court adopted the PSR and sentenced W a g n e r to 99 months of imprisonment. Wagner appeals this sentence, arguing t h a t the district court committed procedural error by denying him a reduction u n d e r U.S.S.G. § 3E1.1 for acceptance of responsibility. F o llo w in g United States v. Booker, 543 U.S. 220 (2005), sentences are r e v ie w e d for reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).

Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), this court must d e t e r m in e whether the sentence imposed is procedurally sound, including w h e t h e r the calculation of the advisory guidelines range is correct, and whether t h e sentence is substantively reasonable. Review is for an abuse of discretion. Id. T h e record reflects that Wagner was a fugitive from sentencing for 18 y e a r s . At his rearraignment hearing in 1991, Wagner claimed that he was a U n ite d States citizen. However, he admitted after his 2009 arrest that he was a German citizen and that his real name is Lothar Starsinsky. Thus, as the d is t r ic t court determined, Wagner "committed perjury before a United States J u d g e ." As the district court noted in rejecting Wagner's sentencing disparity a r g u m e n t , Wagner was the only defendant in his case that failed to appear. W a g n e r cannot show that the district court's refusal to adjust his offense le v e l for acceptance of responsibility was "without foundation" or that his is such a n "extraordinary case" that he should be entitled to the adjustment for a c c e p t a n c e of responsibility. See United States v. Angeles-Mendoza, 407 F.3d 7 4 2 , 753 (5th Cir. 2005); see also United States v. Lujan-Sauceda, 187 F.3d 451, 4 5 1 -5 2 (5th Cir. 1999); United States v. Norvell, 37 F.3d 631, 1994 WL 558989, a t * 1 (5th Cir. 1994) (unpublished)1 ; United States v. Brigman, 953 F.2d 906,

Unpublished opinions issued before January 1, 1996, are precedent. See 5th Cir. R. 47.5.3.

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9 0 9 (5th Cir. 1992).

Thus, he has failed to show that the district court

c o m m i t t e d any procedural error by denying him a reduction for acceptance of r e s p o n s ib ilit y . See Gall, 552 U.S. at 51. Accordingly, the judgment of the d is t r ic t court is AFFIRMED.

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