United States of America v. Xiao Xu Wu, a/k/a Wendy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4727
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
XIAO XU WU, a/k/a Wendy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-cr-00394-FL-5)
Submitted: May 23, 2013 Decided: June 20, 2013
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Xiao Xu Wu pled guilty to conspiracy to traffic in
counterfeit goods, in violation of 18 U.S.C. § 371 (2006), and
18 U.S.C.A. § 2320(a) (West Supp. 2013). She received a
sentence of thirty-six months’ imprisonment. Wu appeals her
within-Guidelines sentence, contending that the district court
erred in denying her motion for a variance and that her sentence
is unreasonable. We affirm.
Wu and five co-defendants were engaged in transporting
counterfeit merchandise made in China but purporting to be
expensive handbags, belts, and other accessories, from
warehouses in New York City to North Carolina where they
distributed it to flea market vendors. Wu leased two storage
units in North Carolina in which she stored counterfeit
merchandise with a retail value of more than $1.2 million.
Agents observed Wu supplying the counterfeit merchandise to
various flea market vendors.
After hearing from the parties concerning the
appropriate sentence in light of the 18 U.S.C. § 3553(a) (2006)
factors, the district court observed that Wu was “a major
distributor of counterfeit goods.” (J.A. 69).∗ Prior to
imposing a sentence of thirty-six months, the court stated that
∗ “J.A.” refers to the joint appendix filed by the parties.

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“[t]he Guideline[s] range in this case captures the factors set
forth in . . . § 3553. . . . [T]his type of conduct must be
. . . discouraged. There’s a need to protect legitimate
business operations, trademarks, and copyrights. There’s a need
to promote respect for the law. [Wu has] demonstrated utter
disrespect.” (J.A. 69-70).
On appeal, Wu asserts that the thirty-six-month
sentence was greater than necessary to satisfy the sentencing
goals of § 3553(a). This court reviews a sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 46, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. at 51; see United States v.
Lynn, 592 F.3d 572, 575 (4th Cir. 2010). The court first
reviews for significant procedural error, which, among other
deficiencies, may include “failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.” Gall,
552 U.S. at 51. To avoid procedural error, the district court
must make an “individualized assessment,” wherein it applies the
relevant § 3553(a) factors to the particular facts of the
defendant’s case. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). It also should address any nonfrivolous
arguments for an out-of-Guidelines sentence “and explain why

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[it] has rejected those arguments.” Id. (internal quotation
marks omitted).
Only if the court finds a sentence procedurally
reasonable will it then consider substantive reasonableness.
Gall, 552 U.S. at 51. Substantive reasonableness is determined
by considering “the totality of the circumstances.” Id. If the
sentence is within the Guidelines range, we may apply a
presumption of reasonableness. United States v. Johnson, 445
F.3d 339, 341 (4th Cir. 2006).
Wu asserts that she had a minor role in the
conspiracy, that her sentence created an unwarranted sentencing
disparity between her and her co-defendants, and that the
district court failed to adequately consider her personal
background and hardships. However, ample evidence supported the
district court’s conclusion that Wu was a major distributor of
counterfeit merchandise. Furthermore, the court justified Wu’s
sentence with an individualized assessment, stressing in
particular the need to protect the public and promote respect
for the law. See Johnson, 445 F.3d at 345 (stating that
district court need not “robotically tick through § 3553(a)’s
every subsection”). Even if this court might weigh the
§ 3553(a) factors differently and select a different sentence,
the district court’s sentence deserves deference. See United
States v. Jeffery, 631 F.3d 669, 679-80 (4th Cir. 2011).

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Therefore, we conclude that the district court did not abuse its
discretion and that the sentence is reasonable.
We therefore 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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