US v. Phonepadith Thadsamany, No. 07-5139 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5139 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PHONEPADITH THADSAMANY, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:06-cr-00178-FDW-CH-4) Submitted: December 19, 2008 Decided: January 15, 2009 Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Phonepadith Thadsamany appeals from his conviction and 150-month sentence imposed following a jury trial on charges of conspiracy to possess with intent to distribute Ecstasy and possession and attempted possession with intent to distribute Ecstasy, 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2007), and 18 U.S.C. § 2 (2006). court erred by coconspirator s On appeal, he contends that the district admitting girlfriend evidence and son, of threats that the against district a court erred by denying his motion for judgment of acquittal, and that the sentence imposed was unreasonable. Finding no error, we affirm Thadsamany s conviction and sentence. The purchase evidence 5000 showed Ecstacy that pills Somlet from Sisouk Kongmany arranged to Sibounheung. Sibounheung contacted Thadsamany and arranged to purchase 10,000 Ecstacy pills from him in order to provide half to Sisouk and half to another buyer. Thadsamany and Sibounheung were arrested when they were on the way to meet Sisouk. Over government that, to three Thadsamany s present weeks objection, evidence after from Thadsamany the court Sibounheung s allowed and the girlfriend Sibounheung were arrested, three men came to her workplace seeking to collect money that Sibounheung owed for stuff that was taken away. They threatened to hurt the girlfriend and her son if they did 2 not get the money. Sometime after that, Sibounheung s car, which his girlfriend drove to work, was broken into and bags of clothes, a television and some items that Sibounheung had hidden in the car, were stolen. The court found the evidence admissible as intrinsic evidence of the conspiracy, noting that threats of violence, just like use trafficking. of to explain firearms are tools of the trade of drug The court also allowed the evidence as relevant Sibounheung s fear about testifying and initially did not fully cooperate with the government. no abuse of discretion in this ruling. why he We find See Fed. R. Evid. 403; United States v. Rivera, 412 F.3d 562, 571 (4th Cir. 2005); United States v. Mohr, 318 F.3d 613, 618 (4th Cir. 2003); see also United States v. Thomas, 86 F.3d 647, 654 (7th Cir. 1996) (threat evidence is admissible if relevant to explain a witness inconsistent statements). Thadsamany next argues that the district court erred by denying evidence his showed motion only for that judgment he was relationship, not a conspiracy. argument in his motion for of acquittal involved in a because the buyer-seller Thadsamany did not raise this acquittal therefore, we review for plain error. in the district court; United States v. Higgs, 353 F.3d 281, 309 (4th Cir. 2003); see United States v. Stewart, 129 F. App x 758, 766 (4th Cir. 2005). 3 Viewing the evidence in the light most favorable to the Government, we find that a rational factfinder could find the existence of a conspiracy beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996); see United States v. Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (quoting United States v. Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1993)). Accordingly, there was no plain error by the court in allowing the case to go to the jury on the conspiracy charge. See United States v. Olano, 507 U.S. 725, 732-34 (1993). Thadsamany s final contention is that the district court improperly applied the sentencing factors in determining an appropriate sentence. Appellate courts review sentences imposed by district courts for reasonableness, applying an abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007); see United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When sentencing a defendant, a district court must: (1) properly calculate the guideline range; (2) treat the guidelines as advisory; (3) consider the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); and (4) explain its reasons for selecting a sentence. presume that a sentence Pauley, 511 F.3d at 473. within the properly sentencing guidelines range is reasonable. We calculated United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 127 S. Ct. 2456, 4 2462-69 (2007) (upholding application of rebuttable presumption of correctness of within guideline sentence). The sentencing district court Thadsamany. followed First, the the necessary court steps found, by in a preponderance of the evidence, that Thadsamany was responsible for 10,000 pills. The court then properly determined Thadsamany s advisory guideline range of 121 to 151 months. court noted that the guideline range is presumed to The be reasonable and addressed what sentence would be sufficient, but not greater than necessary to accomplish the sentencing goals, and considerered the sentencing factors enumerated in § 3553(a). The court specifically addressed the need to promote respect for the law and provide just punishment, and the seriousness of the offense. count, to Finally, the court determined that 150 months on each run concurrently, would accomplish the sentencing goals of § 3553(a). Although the court noted that the applicable guideline range was presumed on appeal to be reasonable, it did not stop the analysis there. See, e.g., Gall, 128 S. Ct. at 597 (noting that sentencing court may not presume that a within-guideline sentence is reasonable, but rather must make an individualized assessment based on the facts presented ). then appropriately addressed the Rather the court § 3553(a) factors determined what sentence would fulfill the sentencing goals. 5 and We find that the district court followed the necessary steps in determining an appropriate sentence for Thadsamany and that the 150-month sentence, which guideline range, is reasonable. is within the advisory Accordingly, we find no abuse of discretion in Thadsamany s sentence. Having finding no sentence. legal before error, we the issues affirm asserted Thadsamany s on appeal conviction and and We dispense with oral argument because the facts and contentions the reviewed court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6
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