USA v. Tong Park

Filing 511076667

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Case: 09-50325 Document: 00511076667 Page: 1 Date Filed: 04/12/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-50325 S u m m a r y Calendar April 12, 2010 Lyle W. Cayce Clerk U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. T O N G C. PARK, Defendant-Appellant A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 5:08-CR-15-1 B e fo r e REAVLEY, DAVIS, and HAYNES, Circuit Judges. P E R CURIAM:* T o n g C. Park appeals the sentence imposed following her guilty plea to c o n s p i ra c y to traffic in counterfeit goods and trafficking in counterfeit goods. S h e argues that (1) the district court misapplied U.S.S.G § 2B5.3 and (2) her w it h in -g u id e lin e s sentence was substantively unreasonable. We affirm. W e review de novo the district court's interpretation and application of the S e n te n c in g Guidelines and review its factual findings for clear error. United S ta tes v. Yi, 460 F.3d 623, 635 (5th Cir. 2006). Based on expert testimony that 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-50325 Document: 00511076667 Page: 2 No. 09-50325 Date Filed: 04/12/2010 t h e infringing items would have appeared to a reasonably informed purchaser t o be identical or substantially equivalent to the infringed items, the record s u p p o r ts a conclusion that the district court did not clearly err in using the retail v a lu e of the infringed items to calculate Park's offense level. See § 2B5.3, cmt. (n .2 (A )(i)); see United States v. Jackson, 453 F.3d 302, 308 n.11 (5th Cir. 2006). W e review the substantive reasonableness of Park's sentence for an abuse o f discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A discretionary sen te n ce imposed within a properly calculated guidelines range is presumptively r e a s o n a b le . Rita v. United States, 551 U.S. 338, 347 (2007). The district court r e fu s e d to consider a downward variance from the advisory range because Park h a d failed to heed repeated warnings by law enforcement regarding her tr a ffic k in g in counterfeit goods. See 18 U.S.C. § 3553(a)(2)(A). "[T]he sentencing ju d g e is in a superior position to find facts and judge their import under § 3553(a) with respect to a particular defendant." United States v. C a m p o s -M a ld o n a d o , 531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328 (2 0 0 8 ) . Park's disagreement with the propriety of the sentence imposed does not s u f fic e to rebut the presumption of reasonableness that attaches to a w ith in -g u id e lin e s sentence. Cf. United States v. Gomez-Herrera, 523 F.3d 554, 5 6 5 -6 6 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008); United States v. Rodriguez, 5 2 3 F.3d 519, 526 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). A F F IR M E D . 2

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