United States v. Thadsamany , 305 F. App'x 942 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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