US v. Xiao Wu, No. 12-4727 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4727 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. XIAO XU WU, a/k/a Wendy, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:10-cr-00394-FL-5) Submitted: May 23, 2013 Decided: June 20, 2013 Before DAVIS, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Xiao Xu Wu pled guilty to conspiracy to traffic in counterfeit goods, in violation of 18 U.S.C. § 371 (2006), and 18 U.S.C.A. § 2320(a) (West Supp. 2013). She sentence of thirty-six months imprisonment. received a Wu appeals her within-Guidelines sentence, contending that the district court erred in denying her motion for a variance and that her sentence is unreasonable. We affirm. Wu and five co-defendants were engaged in transporting counterfeit merchandise expensive handbags, warehouses in New made in belts, York China and City in North to merchandise Agents with observed Carolina in a value Wu retail supplying purporting other North distributed it to flea market vendors. units but which of the to accessories, Carolina where be from they Wu leased two storage she more stored than counterfeit counterfeit $1.2 million. merchandise to various flea market vendors. After hearing from the parties concerning the appropriate sentence in light of the 18 U.S.C. § 3553(a) (2006) factors, the distributor district of court counterfeit observed goods. that (J.A. Wu was 69). a major Prior to imposing a sentence of thirty-six months, the court stated that J.A. refers to the joint appendix filed by the parties. 2 [t]he Guideline[s] range in this case captures the factors set forth in . . . § 3553. . . . . . . discouraged. [T]his type of conduct must be There s a need to protect business operations, trademarks, and copyrights. to promote respect for the law. disrespect. legitimate There s a need [Wu has] demonstrated utter (J.A. 69-70). On appeal, Wu asserts that the thirty-six-month sentence was greater than necessary to satisfy the sentencing goals of § 3553(a). This court reviews a sentence reasonableness under an abuse-of-discretion standard. United States, 552 U.S. 38, 46, 51 (2007). consideration of both the reasonableness of a sentence. Lynn, 592 reviews F.3d for 572, 575 significant deficiencies, may Gall v. This review requires procedural and substantive Id. at 51; see United States v. (4th Cir. procedural include for failing 2010). error, to The court first which, among other consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. 552 U.S. at 51. Gall, To avoid procedural error, the district court must make an individualized assessment, wherein it applies the relevant § 3553(a) defendant s case. (4th Cir. arguments 2009). for an factors to the particular facts of the United States v. Carter, 564 F.3d 325, 328 It also should out-of-Guidelines 3 address any nonfrivolous sentence and explain why [it] has rejected those arguments. Id. (internal quotation marks omitted). Only reasonable if will the it court then Gall, 552 U.S. at 51. finds consider a sentence substantive procedurally reasonableness. Substantive reasonableness is determined by considering the totality of the circumstances. sentence is within the Guidelines presumption of reasonableness. range, we Id. may If the apply a United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006). Wu asserts that she had a minor role in the conspiracy, that her sentence created an unwarranted sentencing disparity between district court her and her failed to adequately background and hardships. co-defendants, and consider that her the personal However, ample evidence supported the district court s conclusion that Wu was a major distributor of counterfeit merchandise. sentence with an Furthermore, the court justified Wu s individualized assessment, stressing in particular the need to protect the public and promote respect for the law. See Johnson, 445 F.3d at 345 (stating that district court need not robotically tick through § 3553(a) s every subsection ). Even if this court might weigh the § 3553(a) factors differently and select a different sentence, the district court s sentence deserves deference. States v. Jeffery, 631 F.3d 669, 4 679-80 (4th See United Cir. 2011). Therefore, we conclude that the district court did not abuse its discretion and that the sentence is reasonable. We therefore affirm the district court s judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 5
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