UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 jury convicted Luis M. Thomas of conspiracy to
traffic in counterfeit goods, 18 U.S.C. § 371 (2006),
trafficking in counterfeit goods, 18 U.S.C. § 2320 (2006), and
engaging in monetary transactions in property derived from
unlawful activity (three counts), 18 U.S.C. § 1957 (2006). The
court sentenced Thomas to 60 months’ imprisonment on the
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 of the sentencing factors under 18 U.S.C.
§ 3553(a) (2006); (2) imposing a two-level 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
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have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6).
We review a sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 128 S. Ct.
586, 597 (2007). This review requires appellate consideration
of both the procedural and substantive reasonableness of a
sentence. Id. at 597. 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 calculated the defendant’s advisory guideline
range. Id. at 596-97. A sentence within the properly
calculated guideline range may be afforded an appellate
presumption of reasonableness. 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). Finally, this court reviews the substantive
reasonableness of the sentence, “taking into account the
‘totality of the circumstances, including the extent of any
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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.” Gall,
128 S. Ct. at 597. Moreover, the district court must state the
individualized reasons that justify a sentence, even when
sentencing a defendant within the guidelines range. Rita, 551
U.S. at , 127 S. Ct. at 2468. 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 a factor appropriate for consideration under
[§ 3553(a)] and [were] clearly tied to [the defendant’s]
particular situation.” 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’ lengthy involvement in
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counterfeit trafficking, his decision to involve his family
members in the illegal activity and the scale of his operations,
the district court clearly considered particular § 3553(a)
factors, namely, Thomas’ background and characteristics.
Furthermore, the district court heard significant argument
regarding Thomas’ imputed co-conspirators and the need to avoid
unwarranted sentence disparities and ultimately distinguished
Thomas’ case. 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 also argues the district court improperly
enhanced his sentence for his role as a 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.
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Last, Thomas contends the district court erred by
declining to reduce his offense level based on acceptance of
responsibility under USSG § 3E1.1. A district court’s decision
to deny an offense level reduction for acceptance of
responsibility is reviewed for clear error. United States v.
Dugger, 485 F.3d 236, 239 (4th Cir. 2007). The district court
denied the reduction based on its finding that Thomas never
admitted he knew the goods were counterfeit. We find no clear
error in this determination. See also USSG § 3E1.1, comment.
(n.2) (A defendant may go to trial and still receive an
adjustment for acceptance of responsibility, but 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 no abuse of discretion, we affirm Thomas’
sentence. 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
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