United States v. Daryanani ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-10701
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GOBIND DARYANANI,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(3:97-CR-31-ALL-T)
February 3, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Gobind Daryanani appeals the sentence that the district court
imposed pursuant to his plea agreement for conspiracy to traffic
and attempt to traffic in counterfeit goods. Daryanani argues that
the district court committed clear error in determining the value
of counterfeit merchandise seized and in calculating the value
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
attributable to counterfeit goods previously sold. We find that
the district court did not commit clear error in making these
determinations. See United States v. Ismoila, 100 F.3d 380, 396
(5th Cir. 1996) (setting forth the standard for review of loss
determination under U.S.S.G. § 2F1.1); United States v. Kim, 963
F.2d 65, 69 (5th Cir. 1992).
Daryanani also argues that the district court committed an
error by failing to give him the three-point reduction pursuant to
U.S.S.G. § 2X1.1. In his plea agreement, he waived his right to
contest the district court’s failure to give him this reduction,
but the government has not raised the issue of waiver. Daryanani
had a storefront called Dallas Jewelry Findings from which
counterfeit goods were sold, and he employed persons to sell these
goods. Testimony at the sentencing hearing established that sales
of counterfeit goods amounted to 80 percent of the total sales of
Dallas Jewelry Findings, and that there were large quantities of
counterfeit merchandise in stock awaiting sale. Accordingly, the
district court did not commit any error when the court found that
it was reasonably certain that there would have been retail sales
of counterfeit goods absent government intervention. See United
States v. Sung, 51 F.3d 92, 95-96 (7th Cir. 1995) (holding that
whether defendant is eligible for § 2X1.1 reduction depends upon
how close defendant comes to completing the sale of counterfeit
goods). As a result, the district court did not commit any error
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by not giving Daryanani the three-point reduction pursuant to
§ 2X1.1.
AFFIRMED.
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