United States v. Thadsamany

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-5139

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

PHONEPADITH THADSAMANY,

Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00178-FDW-CH-4)

Submitted: December 19, 2008 Decided: January 15, 2009

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Phonepadith Thadsamany appeals from his conviction and

150-month sentence imposed following a jury trial on charges of

conspiracy to possess with intent to distribute Ecstasy and

possession and attempted possession with intent to distribute

Ecstasy, 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2007), and

18 U.S.C. § 2 (2006). On appeal, he contends that the district

court erred by admitting evidence of threats against a

coconspirator’s girlfriend and son, that the district court

erred by denying his motion for judgment of acquittal, and that

the sentence imposed was unreasonable. Finding no error, we

affirm Thadsamany’s conviction and sentence.

The evidence showed that Somlet Sisouk arranged to

purchase 5000 Ecstacy pills from Kongmany Sibounheung.

Sibounheung contacted Thadsamany and arranged to purchase 10,000

Ecstacy pills from him in order to provide half to Sisouk and

half to another buyer. Thadsamany and Sibounheung were arrested

when they were on the way to meet Sisouk.

Over Thadsamany’s objection, the court allowed the

government to present evidence from Sibounheung’s girlfriend

that, three weeks after Thadsamany and Sibounheung were

arrested, three men came to her workplace seeking to collect

money that Sibounheung owed for “stuff” that was taken away.

They threatened to hurt the girlfriend and her son if they did

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not get the money. Sometime after that, Sibounheung’s car,

which his girlfriend drove to work, was broken into and bags of

clothes, a television and some items that Sibounheung had hidden

in the car, were stolen.

The court found the evidence admissible as intrinsic

evidence of the conspiracy, noting that “threats of violence,

just like use of firearms are tools of the trade of drug

trafficking.” The court also allowed the evidence as relevant

to explain Sibounheung’s fear about testifying and why he

initially did not fully cooperate with the government. We find

no abuse of discretion in this ruling. See Fed. R. Evid. 403;

United States v. Rivera, 412 F.3d 562, 571 (4th Cir. 2005);

United States v. Mohr, 318 F.3d 613, 618 (4th Cir. 2003); see

also United States v. Thomas, 86 F.3d 647, 654 (7th Cir. 1996)

(threat evidence is admissible if relevant to explain a witness’

inconsistent statements).

Thadsamany next argues that the district court erred

by denying his motion for judgment of acquittal because the

evidence showed only that he was involved in a buyer-seller

relationship, not a conspiracy. Thadsamany did not raise this

argument in his motion for acquittal in the district court;

therefore, we review for plain error. United States v. Higgs,

353 F.3d 281, 309 (4th Cir. 2003); see United States v. Stewart,

129 F. App’x 758, 766 (4th Cir. 2005).

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Viewing the evidence in the light most favorable to

the Government, we find that a rational factfinder could find

the existence of a conspiracy beyond a reasonable doubt. United

States v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996); see United

States v. Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (quoting

United States v. Mills, 995 F.2d 480, 485 n.1 (4th Cir. 1993)).

Accordingly, there was no plain error by the court in allowing

the case to go to the jury on the conspiracy charge. See United

States v. Olano, 507 U.S. 725, 732-34 (1993).

Thadsamany’s final contention is that the district

court improperly applied the sentencing factors in determining

an appropriate sentence. Appellate courts review sentences

imposed by district courts for reasonableness, applying an abuse

of discretion standard. Gall v. United States, 128 S. Ct. 586,

597 (2007); see United States v. Pauley, 511 F.3d 468, 473 (4th

Cir. 2007). When sentencing a defendant, a district court must:

(1) properly calculate the guideline range; (2) treat the

guidelines as advisory; (3) consider the factors set out in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); and (4) explain its

reasons for selecting a sentence. Pauley, 511 F.3d at 473. We

presume that a sentence within the properly calculated

sentencing guidelines range is reasonable. United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v.

United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding

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application of rebuttable presumption of correctness of within

guideline sentence).

The district court followed the necessary steps in

sentencing Thadsamany. First, the court found, by a

preponderance of the evidence, that Thadsamany was responsible

for 10,000 pills. The court then properly determined

Thadsamany’s advisory guideline range of 121 to 151 months. The

court noted that the guideline range is presumed to be

reasonable and addressed what sentence would be sufficient, but

not greater than necessary to accomplish the sentencing goals,

and considerered the sentencing factors enumerated in § 3553(a).

The court specifically addressed the need to promote respect for

the law and provide just punishment, and the seriousness of the

offense. Finally, the court determined that 150 months on each

count, to run concurrently, would accomplish the sentencing

goals of § 3553(a).

Although the court noted that the applicable guideline

range was presumed on appeal to be reasonable, it did not stop

the analysis there. See, e.g., Gall, 128 S. Ct. at 597 (noting

that sentencing court may not presume that a within-guideline

sentence is reasonable, but rather must “make an individualized

assessment based on the facts presented”). Rather the court

then appropriately addressed the § 3553(a) factors and

determined what sentence would fulfill the sentencing goals.

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We find that the district court followed the necessary

steps in determining an appropriate sentence for Thadsamany and

that the 150-month sentence, which is within the advisory

guideline range, is reasonable. Accordingly, we find no abuse

of discretion in Thadsamany’s sentence.

Having reviewed the issues asserted on appeal and

finding no error, we affirm Thadsamany’s conviction and

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