US v. Luis Thomas, No. 08-4614 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4614 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUIS M. THOMAS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 jury in convicted counterfeit Luis M. goods, Thomas 18 of U.S.C. conspiracy § 371 to (2006), trafficking in counterfeit goods, 18 U.S.C. § 2320 (2006), and engaging in monetary derived from unlawful activity (three counts), 18 U.S.C. § 1957 (2006). The court the sentenced transactions Thomas to 60 in property 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 (2006); (2) sentencing imposing a factors under two-level 18 U.S.C. aggravating role 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. Finding no 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 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 abuse-of-discretion standard. 586, 597 (2007). of both the sentence. for reasonableness under an Gall v. United States, 128 S. Ct. This review requires appellate consideration procedural Id. at 597. and substantive reasonableness of a 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 properly range. calculated Id. calculated at the 596-97. guideline range presumption of reasonableness. defendant s A sentence may be advisory within afforded guideline the an properly appellate Rita v. United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2459, 2462 (2007). This court must 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, circumstances, 3 taking including into the account extent of the any variance from the Guidelines range. Pauley, 511 F.3d at 473 (quoting Gall, 128 S. Ct. at 597). 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 a sentence within a properly calculated guidelines range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). But at the same time, the district court must make an individualized assessment based on the facts presented. 128 S. Ct. at 597. individualized Moreover, the district court must state the reasons that justify a sentence, sentencing a defendant within the guidelines range. , 127 S. Ct. at 2468. U.S. at Gall, even when 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 [§ 3553(a)] a and factor appropriate [were] particular situation. clearly for tied consideration to [the under defendant s] United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). 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 factors, court namely, Furthermore, the clearly considered Thomas background district court heard particular and § 3553(a) characteristics. significant argument regarding Thomas imputed co-conspirators and the need to avoid unwarranted sentence Thomas case. disparities and ultimately distinguished 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 sentence argues for the his district role as a court improperly supervisor in the 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 reduction for responsibility is reviewed for clear error. acceptance of United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). The district court denied that the reduction based on its finding admitted he knew the goods were counterfeit. (A defendant adjustment for may go never We find no clear See also USSG § 3E1.1, comment. error in this determination. (n.2) Thomas to acceptance trial of and still receive responsibility, but an such 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 abuse of discretion, we affirm Thomas We dispense with oral argument because the facts and contentions the no court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6
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