United States v. Shi Chang Huang , 491 F. App'x 382 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5114
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHI CHANG HUANG, a/k/a Mike,
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-1)
Submitted: July 31, 2012 Decided: August 9, 2012
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, PA, New Bern,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shi Chang Huang 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 (West Supp. 2012). He received a sentence of
forty-eight months’ imprisonment. Huang appeals his sentence,
contending that the district court clearly erred in determining
the infringement amount under U.S. Sentencing Guidelines Manual
§ 2B5.3 (2011), and in varying above the Guidelines range. We
affirm.
Huang and several family members were engaged for
several years in bringing counterfeit merchandise made in China
but purporting to be expensive handbags, shoes, and other
accessories, from warehouses in New York City to North Carolina
where they sold it at flea markets or to other flea market
vendors. In the presentence report, Huang initially received a
14-level increase in his offense level for an infringement
amount of $689,071. USSG § 2B5.3(b)(1). 1 To determine the
infringement amount, the probation officer used the retail value
of the infringed, or authentic, merchandise, which is the method
prescribed in Application Note 2(A) to § 2B5.3 for cases where
the infringing item “is or appears to a reasonably informed
1
If the infringement amount exceeds $5000, the increase is
determined by cross reference to the table in USSG § 2B1.1.
2
purchaser to be identical or substantially equivalent to the
infringed item;” or one in which “the retail value of the
infringing item is difficult or impossible to determine without
unduly complicating or prolonging the sentencing proceeding.”
USSG § 2B5.3 cmt. n.2(A)(i), (iii). Application Note 1 defines
the infringed item as “the copyrighted or trademarked item with
respect to which the crime against intellectual property was
committed.” The infringing item is defined as “the item that
violates the copyright or trademark laws.” Id.
At the sentencing hearing, in response to Huang’s
objection to the use of the retail value of the infringed items
to determine the infringement amount, the government presented
testimony from the federal investigative agent. She testified
that she had been trained to recognize counterfeit merchandise,
but that the valuation of the counterfeit items was done by a
private investigator who was also an official representative for
all but one of the companies involved. The agent said she
accepted the investigator’s figures for the retail value of the
infringed items and that it would be a time-consuming process to
obtain each company’s valuation of the retail value of the
infringing items.
Huang’s attorney argued that, because Huang sold some
counterfeit merchandise to the agents, during the investigation,
for about one-tenth the retail value of the original items, the
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“infringement amount” should be determined under Application
Note 2(B) to § 2B5.3, which directs that the infringement amount
is the retail value of the infringing item multiplied by the
number of infringing items, in any case not covered by
Application Note 2(A). He suggested that the retail value of
the infringing items in Huang’s case would be $68,907.10.
The court found that the infringement amount was
difficult to ascertain, but ultimately decided to estimate the
infringement amount by taking half of the retail valuation of
the infringed items as determined by the investigator. The
reduction lowered Huang’s offense level to 20 and reduced his
Guidelines range to 33-41 months.
After hearing from the parties concerning the
appropriate sentence in light of the 18 U.S.C. § 3553(a) (2006)
factors, the court decided to vary upward from the Guidelines
range. 2 The court observed that, after coming to live in the
United States, 3 Huang had defrauded many companies and
disregarded the laws of the United States. The court noted that
Huang had committed additional similar crimes while on pretrial
2
Although the court did not announce that it was varying,
rather than departing, above the Guidelines range, the sentence
was clearly a variance, and is identified as such in the court’s
sealed statement of reasons.
3
Huang is a Chinese citizen, but has permanent legal
resident status in the United States.
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release. 4 Before imposing a sentence of forty-eight months, the
court stated that –
[T]here is a compelling need to protect the public and
to promote respect for the law. And I don’t believe a
sentence within the guideline range, as I’ve derived
it, accomplishes the purposes of sentencing in this
case. I don’t believe a sentence of 33 to 41 months
will discourage this type of conduct.
On appeal, Huang first challenges the district court’s
determination of the infringement amount, arguing that the court
should have used the retail value of the infringing items. The
district court’s determination of the infringement amount in a
case involving counterfeit merchandise is a factual finding
reviewed for clear error. United States v. Lozano, 490 F.3d
1317, 1322 (11th Cir. 2007); United States v. Yi, 460 F.3d 623,
638 (5th Cir. 2006).
Here, the question initially is whether the district
court properly determined the infringement amount under
Application Note 2(A) to § 2B5.3. In light of the agent’s
testimony that many, if not all, of the infringing items were of
very good quality, and thus would appear to a “reasonably
informed purchaser” to be “identical or substantially equivalent
to the infringed item[s],” see Application Note 2(A)(i), and the
4
After being released on December 17, 2010, Huang was
arrested in possession of thirty cartons of unstamped cigarettes
he had purchased in Virginia and was transporting to New York
for sale. His pretrial release was revoked and he was detained.
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difficulty recognized by the court in determining the retail
value of the infringing items, see Application Note 2(A)(iii),
we conclude that the district court did not clearly err in
applying Application Note 2(A) and using the retail value of the
infringed items as the starting point. Adopting Huang’s
alternative valuation based on only a few undercover sales would
not necessarily have produced a more accurate estimate.
Therefore, we conclude that the district court’s determination
of the infringement amount and Huang’s offense level was not
clearly erroneous.
Next, Huang asserts that a sentence above the
Guidelines range was greater than necessary to satisfy the
sentencing goals of § 3553(a). This court reviews a sentence
for reasonableness under an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). This review
requires consideration of both the procedural and substantive
reasonableness of a sentence. Id.; see United States v. Lynn,
592 F.3d 572, 575 (4th Cir. 2010). A “deferential abuse-of-
discretion standard applies to any sentence, whether inside,
just outside, or significantly outside the Guidelines range.”
United States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.
2012) (internal citation and quotation marks omitted), petition
for cert. filed, June 27, 2012. In reviewing any variance, the
appellate court must give due deference to the sentencing
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court’s decision. United States v. Diosdado-Star, 630 F.3d 359,
366 (4th Cir.) (citing Gall, 552 U.S. at 56), cert. denied, 131
S. Ct. 2946 (2011).
Here, the court gave an individualized assessment of
Huang’s situation in light of the § 3553(a) factors, including
his continued criminal conduct while on pretrial release, and
decided that the seriousness of his offense and the likelihood
that he would commit further such crimes necessitated a sentence
above the Guidelines range to protect the public and promote
respect for the law. See United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009) (sentencing court “must make an
individualized assessment based on the facts presented”)
(citation and emphasis omitted). Huang argues that the court
failed to recognize that he had already been punished for his
criminal conduct on pretrial release by the loss of an
adjustment for acceptance of responsibility, USSG § 3E1.1.
However, even if this court might weigh the § 3553(a) factors
differently and select a lesser sentence, the district court’s
sentence deserves deference. See United States v. Jeffery, 631
F.3d 669, 679-80 (4th Cir.), cert. denied, 132 S. Ct. 187(2011). Therefore, we conclude that the district court did not
abuse its discretion and that the variance was not substantively
unreasonable.
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We therefore affirm the district court’s judgment. 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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