United States v. Tong Park , 373 F. App'x 463 ( 2010 )

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     Case: 09-50325     Document: 00511076667          Page: 1    Date Filed: 04/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
April 12, 2010
No. 09-50325
Summary Calendar                         Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TONG C. PARK,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CR-15-1
Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Tong C. Park appeals the sentence imposed following her guilty plea to
conspiracy to traffic in counterfeit goods and trafficking in counterfeit goods.
She argues that (1) the district court misapplied U.S.S.G § 2B5.3 and (2) her
within-guidelines sentence was substantively unreasonable.                       We affirm.
We review de novo the district court’s interpretation and application of the
Sentencing Guidelines and review its factual findings for clear error. United
States v. Yi,

460 F.3d 623

, 635 (5th Cir. 2006). Based on expert testimony that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-50325    Document: 00511076667 Page: 2         Date Filed: 04/12/2010
No. 09-50325
the infringing items would have appeared to a reasonably informed purchaser
to be identical or substantially equivalent to the infringed items, the record
supports a conclusion that the district court did not clearly err in using the retail
value of the infringed items to calculate Park’s offense level. See § 2B5.3, cmt.
(n.2(A)(i)); see United States v. Jackson,

453 F.3d 302

, 308 n.11 (5th Cir. 2006).
We review the substantive reasonableness of Park’s sentence for an abuse
of discretion. Gall v. United States,

552 U.S. 38

, 51 (2007). A discretionary
sentence imposed within a properly calculated guidelines range is presumptively
reasonable. Rita v. United States,

551 U.S. 338

, 347 (2007). The district court
refused to consider a downward variance from the advisory range because Park
had failed to heed repeated warnings by law enforcement regarding her
trafficking in counterfeit goods. See

18 U.S.C. § 3553

(a)(2)(A). “[T]he sentencing
judge is in a superior position to find facts and judge their import under
§ 3553(a) with respect to a particular defendant.”               United States v.
Campos-Maldonado,

531 F.3d 337

, 339 (5th Cir.), cert. denied,

129 S. Ct. 328

(2008). Park’s disagreement with the propriety of the sentence imposed does not
suffice to rebut the presumption of reasonableness that attaches to a
within-guidelines sentence. Cf. United States v. Gomez-Herrera,

523 F.3d 554