UNPUBLISHED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 Decided: March 18, 2011
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 to
defraud the United States, 18 U.S.C. § 371 (2006). On appeal,
he challenges his 60-month sentence on the 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 affirm.
We review a sentence for reasonableness, using an
abuse of discretion standard of review. Gall v. United States,
552 U.S. 38, 51 (2007). The first step in this review requires
us to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Significant procedural errors include
“‘failing to calculate (or improperly calculating) the
Guidelines range, . . . failing to consider the § 3553(a)
factors, . . . or failing to adequately explain the 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 relevant § 3553(a) factors to the
circumstances of the case. Gall, 552 U.S. at 51. We then
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consider the substantive reasonableness of the sentence, taking
into account the totality of the circumstances.
Brooks first challenges the district court’s
imposition of a four-level enhancement because the offense
involved fifty or more victims, U.S. Sentencing Guidelines
Manual (“USSG”) § 2B1.1(b)(2)(B) (2008); a 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 from one
another and each ran his or her own operation. 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’
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activities were “one spoke in the same wheel of the conspiracy”
is sufficiently supported by the facts in the record, we
conclude the district court did not err in imposing these
enhancements.
Brooks also argues that the district court erred in
imposing a two-level enhancement based on its finding that
Brooks was in the business of receiving and selling stolen
property. 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 his Guidelines range. See USSG
§ 5G1.1(c)(1). Hence, the two-level reduction would not have
reduced the applicable Guidelines’ term of imprisonment.
Furthermore, the court stated at sentencing that consideration
of the statutory factors advocated in favor of the statutory
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maximum, “and a higher one if possible.” It is therefore clear
that the district was not inclined 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 guidance and teaching and training in law
breaking.” However, the court found that Brooks had not
identified a factor that would justify a downward variance. The
district court noted the check-writing scheme was extensive and
involved “physical abuse of vulnerable people” and “corruption
of individuals by recruitment of numerous people into the
enterprise.” 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.” The court therefore
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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’ sentence was
procedurally reasonable.
We therefore affirm Brooks’ 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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