United States v. Theofanis Mavroudis , 587 F. App'x 46 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4201
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
THEOFANIS MAVROUDIS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:13-cr-00034-GMG-JES-1)
Submitted: September 24, 2014 Decided: October 9, 2014
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nicholas J. Compton, Assistant Federal Public Defender,
Kristen M. Leddy, Research and Writing Specialist, Martinsburg,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Jarod J. Douglas, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Theofanis Mavroudis pled guilty to failure to register
as a sex offender, in violation of 18 U.S.C. § 2250(a) (2012).
He was sentenced to sixty-three months’ imprisonment, to run
consecutively to any future state or federal sentence, followed
by a lifetime of supervised release. Mavroudis appeals,
challenging his sentence. For the reasons that follow, we
affirm.
We review a sentence for reasonableness, applying a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 52 (2007). We first consider whether the
sentencing court committed “significant procedural error,”
including improper calculation of the Guidelines range,
insufficient consideration of the 18 U.S.C. § 3553(a) (2012)
factors, and inadequate explanation of the sentence imposed.
Id. at 51; see United States v. Lynn, 592 F.3d 572, 575 (4th
Cir. 2010). In assessing Guidelines calculations, we review
factual findings for clear error, legal conclusions de novo, and
unpreserved arguments for plain error. United States v.
Strieper, 666 F.3d 288, 292 (4th Cir. 2012).
If we find the sentence procedurally reasonable, we
also consider its substantive reasonableness under the totality
of the circumstances. Lynn, 592 F.3d at 578. The sentence
imposed must be “sufficient, but not greater than necessary, to
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comply with the purposes” of sentencing. 18 U.S.C. § 3553(a).
We presume on appeal that a within-Guidelines sentence is
substantively reasonable, and the defendant bears the burden to
“rebut the presumption by demonstrating that the sentence is
unreasonable when measured against the § 3553(a) factors.”
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted).
Mavroudis raises two challenges to his Guidelines
calculations. He first asserts that the district court erred in
imposing an eight-level upward adjustment to his base offense
level for commission of a sex offense against a minor while in
failure to register status. See U.S. Sentencing Guidelines
Manual (“USSG”) § 2A3.5(b)(1)(C) (2012). For the purposes of
this Guideline, “sex offense” is defined, in relevant part, as
“a criminal offense that has an element involving a sexual act
or sexual contact with another.” 42 U.S.C § 16911(5) (2012);
see USSG § 2A3.5 cmt. n.1. “Minor” is defined to include “an
individual who had not attained the age of 18 years.” USSG
§ 2A3.5 cmt. n.1. The Guideline does not require conviction of
such an offense, but only its commission, to qualify a defendant
for the enhancement. United States v. Lott, 750 F.3d 214,
220-21 (2d Cir. 2014).
Mavroudis also asserts that the district court erred
in imposing a two-level upward adjustment for vulnerable victim.
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The Guidelines provide for a two-level enhancement when the
defendant “knew or should have known that a victim of the
offense was a vulnerable victim.” USSG § 3A1.1(b)(1). A
“vulnerable victim” is defined as “a victim of the offense of
conviction and any conduct for which the defendant is
accountable under [USSG] § 1B1.3 (Relevant Conduct) . . . who is
unusually vulnerable due to age, physical or mental condition,
or who is otherwise particularly susceptible to the criminal
conduct.” USSG § 3A1.1 cmt. n.2.
We find no abuse of discretion in the district court’s
imposition of these enhancements. The testimony at sentencing
amply supported the court’s findings that Mavroudis committed
the West Virginia offense of sexual abuse in the third degree,
see W. Va. Code §§ 61-8B-1(6), 61-8B-9(a) (2013), and that the
victim of this offense qualifies as a vulnerable victim under
USSG § 3A1.1. Moreover, we find unpersuasive Mavroudis’
argument that the vulnerable victim enhancement could not apply
to his failure to register offense. See USSG § 1B1.3(a)(1)
(defining “relevant conduct” to include “all acts and omissions
committed . . . by the defendant . . . that occurred during the
commission of the offense of conviction.”); cf. United States v.
Myers, 598 F.3d 474 (8th Cir. 2010) (finding prior sexual
assault that predated failure to register offense was not
relevant conduct).
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Mavroudis next asserts that his lifetime term of
supervised release is both procedurally and substantively
unreasonable, because the court failed to provide adequate
reasoning to justify the sentence, and it is unsupported by
facts in the record. However, the district court provided a
clear, if brief, explanation of its reasons for imposing the
term—specifically focusing on the need to protect the community
and other vulnerable victims, due to Mavroudis’ demonstrated
recidivism, and to provide needed treatment. We conclude these
reasons adequately support the court’s decision to impose such a
sentence. Moreover, insofar as Mavroudis seeks to challenge the
substantive reasonableness of his sentence of imprisonment, he
fails to rebut the presumption of reasonableness accorded this
sentence. See Montes-Pineda, 445 F.3d at 379.
Finally, Mavroudis asserts that the district court
lacked discretion to order that his sentence run consecutively
to any future state or federal sentence. Mavroudis specifically
relies on United States v. Smith, 472 F.3d 222, 226 (4th Cir.
2006) (holding, based upon the language of 18 U.S.C. § 3584(a)
(2012), that a district court “cannot impose its sentence
consecutively to a sentence that does not yet exist”). However,
the Supreme Court’s subsequent ruling in Setser v. United
States, 132 S. Ct. 1463 (2012), implicitly overruled Smith.
Therefore, the district court did not abuse its discretion in
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running the sentence consecutively to Mavroudis’ unimposed
sentences.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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