US v. Theofanis Mavroudis, No. 14-4201 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4201 UNITED STATES OF AMERICA, Plaintiff Appellee, v. THEOFANIS MAVROUDIS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:13-cr-00034-GMG-JES-1) Submitted: September 24, 2014 Decided: October 9, 2014 Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Nicholas J. Compton, Assistant Federal Public Defender, Kristen M. Leddy, Research and Writing Specialist, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Jarod J. Douglas, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Theofanis Mavroudis pled guilty to failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a) (2012). He was sentenced to sixty-three months imprisonment, to run consecutively to any future state or federal sentence, followed by a lifetime challenging of his supervised sentence. release. For the Mavroudis reasons that appeals, follow, we affirm. We review a sentence for reasonableness, applying a deferential abuse-of-discretion States, 552 U.S. 38, 52 (2007). sentencing court including improper insufficient factors, committed and standard. significant inadequate of v. United We first consider whether the calculation consideration Gall the of 18 the explanation procedural Guidelines U.S.C. of the error, range, § 3553(a) sentence (2012) imposed. Id. at 51; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In assessing Guidelines calculations, we review factual findings for clear error, legal conclusions de novo, and unpreserved arguments for plain error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). If we find the sentence procedurally reasonable, we also consider its substantive reasonableness under the totality of the circumstances. Lynn, 592 F.3d at 578. The sentence imposed must be sufficient, but not greater than necessary, to 2 comply with the purposes of sentencing. We presume on appeal that a 18 U.S.C. § 3553(a). within-Guidelines sentence is substantively reasonable, and the defendant bears the burden to rebut the presumption by demonstrating that the sentence is unreasonable United when States v. measured against Montes-Pineda, the 445 § 3553(a) F.3d 375, 379 factors. (4th Cir. 2006) (internal quotation marks omitted). Mavroudis calculations. raises two challenges to his Guidelines He first asserts that the district court erred in imposing an eight-level upward adjustment to his base offense level for commission of a sex offense against a minor while in failure to register status. See U.S. Manual ( USSG ) § 2A3.5(b)(1)(C) (2012). Sentencing Guidelines For the purposes of this Guideline, sex offense is defined, in relevant part, as a criminal offense that has an element involving a sexual act or sexual contact with another. see USSG § 2A3.5 cmt. n.1. 42 U.S.C § 16911(5) (2012); Minor is defined to include an individual who had not attained the age of 18 years. § 2A3.5 cmt. n.1. USSG The Guideline does not require conviction of such an offense, but only its commission, to qualify a defendant for the enhancement. United States v. Lott, 750 F.3d 214, 220-21 (2d Cir. 2014). Mavroudis also asserts that the district court erred in imposing a two-level upward adjustment for vulnerable victim. 3 The Guidelines defendant offense provide knew was a or for a should vulnerable two-level have known enhancement victim. that USSG a when victim the of the § 3A1.1(b)(1). A vulnerable victim is defined as a victim of the offense of conviction and any conduct for which the defendant is accountable under [USSG] § 1B1.3 (Relevant Conduct) . . . who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct. USSG § 3A1.1 cmt. n.2. We find no abuse of discretion in the district court s imposition of these enhancements. The testimony at sentencing amply supported the court s findings that Mavroudis committed the West Virginia offense of sexual abuse in the third degree, see W. Va. Code §§ 61-8B-1(6), 61-8B-9(a) (2013), and that the victim of this offense qualifies as a vulnerable victim under USSG § 3A1.1. Moreover, we find unpersuasive Mavroudis argument that the vulnerable victim enhancement could not apply to his failure to register offense. See USSG § 1B1.3(a)(1) (defining relevant conduct to include all acts and omissions committed . . . by the defendant . . . that occurred during the commission of the offense of conviction. ); cf. United States v. Myers, assault 598 F.3d that 474 predated (8th Cir. failure 2010) to relevant conduct). 4 (finding register prior offense sexual was not Mavroudis supervised release unreasonable, reasoning next to is because justify facts in the record. asserts both the the that his lifetime procedurally court failed sentence, and and to it term substantively provide is of adequate unsupported by However, the district court provided a clear, if brief, explanation of its reasons for imposing the term specifically focusing on the need to protect the community and other vulnerable victims, due to Mavroudis recidivism, and to provide needed treatment. demonstrated We conclude these reasons adequately support the court s decision to impose such a sentence. Moreover, insofar as Mavroudis seeks to challenge the substantive reasonableness of his sentence of imprisonment, he fails to rebut the presumption of reasonableness accorded this sentence. See Montes-Pineda, 445 F.3d at 379. Finally, Mavroudis asserts that the district court lacked discretion to order that his sentence run consecutively to any future state or federal sentence. Mavroudis specifically relies on United States v. Smith, 472 F.3d 222, 226 (4th Cir. 2006) (holding, based upon the language of 18 U.S.C. § 3584(a) (2012), its sentence consecutively to a sentence that does not yet exist ). However, the that Supreme States, 132 a district Court s S. Ct. court subsequent 1463 (2012), cannot ruling impose in implicitly Setser v. United overruled Smith. Therefore, the district court did not abuse its discretion in 5 running the sentence consecutively to Mavroudis unimposed sentences. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 6

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