US v. Lon Brooks, Jr., No. 10-4227 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4227 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LON JONATHAN BROOKS, JR., Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:08-cr-00048-RLV-DSC-3) Submitted: February 17, 2011 Before SHEDD and Circuit Judge. AGEE, Circuit Decided: Judges, and March 18, 2011 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN, Winston-Salem, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lon Jonathan Brooks pled guilty to conspiracy defraud the United States, 18 U.S.C. § 371 (2006). he challenges his 60-month sentence on the to On appeal, grounds that the district court erred in imposing various enhancements and that his sentence is procedurally unreasonable because the district court failed to provide an individualized assessment with respect to its consideration of the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) factors. We review a We affirm. sentence for reasonableness, abuse of discretion standard of review. 552 U.S. 38, 51 (2007). using an Gall v. United States, The first step in this review requires us to ensure that the district court committed no significant procedural error. (4th Cir. United States v. Evans, 526 F.3d 155, 161 2008). failing to Guidelines range, factors, . . Significant calculate . . or . . (or improperly failing failing procedural to to errors calculating) consider adequately include the the 3553(a) the explain § chosen sentence--including an explanation for any deviation from the Guidelines range. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51). The district court must make an individualized assessment based on the facts presented by applying the circumstances of the case. relevant § 3553(a) factors Gall, 552 U.S. at 51. 2 to the We then consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances. Brooks imposition involved Manual of first a fifty challenges four-level or ( USSG ) more the enhancement victims, § 2B1.1(b)(2)(B) U.S. district because the Sentencing (2008); a court s offense Guidelines fourteen-level enhancement because the loss involved was $400,000 or more, USSG § 2B1.1(b)(1)(H); and a two-level enhancement because Brooks was in the business of receiving and selling stolen property, USSG § 2B1.1(b)(4). When reviewing the district court s application of the Sentencing Guidelines, we review findings of fact for clear error and questions of law de novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006). With respect to the enhancements based on the number of victims and the amount of loss, Brooks does not contest that an enhancement is properly applied for all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity. USSG § 1B1.3(a)(1)(B). Instead, he argues that he, Rosie Brooks (his mother), and Eric Scott Brooks (his half-brother) worked separately another and each ran his or her own operation. from one He therefore maintains the district court erred in holding him responsible for all of the victims and loss attributed to the conspiracy. Because the district court s finding at sentencing that Brooks 3 activities were one spoke in the same wheel of the conspiracy is sufficiently conclude the supported district by court the did facts not in err the in record, imposing we these enhancements. Brooks also argues that the district court erred in imposing Brooks a two-level was property. in the enhancement business of based on receiving its and finding selling that stolen Specifically, Brooks argues that because he was not a fence the enhancement could not be applied to him. We agree with the Government that, even assuming without deciding that the application of the enhancement was improper, any error resulting from the imposition of the enhancement was harmless. See United States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010) ( To avoid reversal for non-constitutional, non-structural errors . . ., the party defending the ruling below (here, the Government) bears the burden of demonstrating that the error was harmless . . . . ). Without application of this enhancement, Brooks Guidelines range would have been seventy to eight-seven months, still above the statutory maximum of sixty months, which ultimately dictated § 5G1.1(c)(1). reduced the his Guidelines range. See USSG Hence, the two-level reduction would not have applicable Guidelines term of imprisonment. Furthermore, the court stated at sentencing that consideration of the statutory factors advocated in favor of the statutory 4 maximum, and a higher one if possible. that the district was not inclined It is therefore clear to consider a downward variance sentence even if a lower Guidelines range could have been determined. Brooks also argues his sentence is procedurally unreasonable because the district court failed to provide an individual assessment of all of the applicable § 3553(a) factors considered and to articulate why it rejected Brooks argument for a below-Guidelines sentence based on a potential sentence disparity between the co-conspirators. Brooks claim is without merit. The district court acknowledged Brooks request for a downward variance based on the abuse he suffered as a child, noting that he suffered not only lack of guidance by parents, but incorrect training in law Brooks had not identified a factor that would justify a downward variance. The breaking. guidance However, and the teaching court found and that district court noted the check-writing scheme was extensive and involved physical abuse of vulnerable people and corruption of individuals enterprise. by recruitment of numerous people into the The court remarked that the conspiracy was multi- state in nature and included more than thirty-five participants. The court further noted that Brooks criminal activity suggested a very high likelihood of recidivism. 5 The court therefore rejected Brooks plea for lenience, citing the seriousness of the offense, the need to promote respect for the law, provide just punishment, provide deterrence, and protect the public. In fact, the court stated that the nature of the offense would argue for an upward direction, and the only reason his sentence would not be akin to that of his mother (108 months imprisonment) was because the court was limited by the statutory maximum. Accordingly, we conclude Brooks Brooks sentence sentence. was procedurally reasonable. We therefore affirm We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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