United States v. Mark Wagner ( 2010 )

Case: 09-41120 Document: 00511219988 Page: 1 Date Filed: 08/31/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 31, 2010
No. 09-41120
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARK ANTHONY WAGNER, also known as Lothar Starsinsky,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:91-CR-233-7
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
In 1991, Mark Anthony Wagner pleaded guilty to conspiracy to possess
with intent to distribute more than 100 kilograms of marijuana. Wagner, who
was released on bond, failed to appear for his sentencing hearing. He was
arrested pursuant to a warrant in 2009, when he attempted to reenter the
United States from Germany. A revised presentence report (PSR) was prepared
and recommended an increase in Wagner’s offense level for obstruction of justice.
The PSR also recommended a deduction of the two points awarded previously for
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41120 Document: 00511219988 Page: 2 Date Filed: 08/31/2010
No. 09-41120
acceptance of responsibility. The district court adopted the PSR and sentenced
Wagner to 99 months of imprisonment. Wagner appeals this sentence, arguing
that the district court committed procedural error by denying him a reduction
under U.S.S.G. § 3E1.1 for acceptance of responsibility.
Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), this court must
determine whether the sentence imposed is procedurally sound, including
whether the calculation of the advisory guidelines range is correct, and whether
the sentence is substantively reasonable. Review is for an abuse of discretion.
Id.The record reflects that Wagner was a fugitive from sentencing for 18
years. At his rearraignment hearing in 1991, Wagner claimed that he was a
United States citizen. However, he admitted after his 2009 arrest that he was
a German citizen and that his real name is Lothar Starsinsky. Thus, as the
district court determined, Wagner “committed perjury before a United States
Judge.” As the district court noted in rejecting Wagner’s sentencing disparity
argument, Wagner was the only defendant in his case that failed to appear.
Wagner cannot show that the district court’s refusal to adjust his offense
level for acceptance of responsibility was “without foundation” or that his is such
an “extraordinary case” that he should be entitled to the adjustment for
acceptance of responsibility. See United States v. Angeles-Mendoza, 407 F.3d
742, 753 (5th Cir. 2005); see also United States v. Lujan-Sauceda, 187 F.3d 451,
451-52 (5th Cir. 1999); United States v. Norvell, 37 F.3d 631, 1994 WL 558989,
at * 1 (5th Cir. 1994) (unpublished)1 ; United States v. Brigman, 953 F.2d 906,
1
Unpublished opinions issued before January 1, 1996, are precedent. See 5th Cir.
R. 47.5.3.
2
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No. 09-41120
909 (5th Cir. 1992). Thus, he has failed to show that the district court
committed any procedural error by denying him a reduction for acceptance of
responsibility. See Gall, 552 U.S. at 51. Accordingly, the judgment of the
district court is AFFIRMED.
3