                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5114


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHI CHANG HUANG, a/k/a Mike,

                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-1)


Submitted:   July 31, 2012                 Decided:   August 9, 2012


Before GREGORY, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, PA, New Bern,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Shi Chang Huang 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 (West Supp. 2012).                     He received a sentence of

forty-eight months’ imprisonment.                       Huang appeals his sentence,

contending that the district court clearly erred in determining

the infringement amount under U.S. Sentencing Guidelines Manual

§ 2B5.3 (2011), and in varying above the Guidelines range.                                    We

affirm.

               Huang   and    several          family    members          were    engaged    for

several years in bringing counterfeit merchandise made in China

but   purporting       to     be       expensive     handbags,        shoes,        and   other

accessories, from warehouses in New York City to North Carolina

where they sold it at flea markets or to other flea market

vendors.       In the presentence report, Huang initially received a

14-level       increase     in     his    offense       level       for    an     infringement

amount    of    $689,071.          USSG       § 2B5.3(b)(1). 1            To     determine   the

infringement amount, the probation officer used the retail value

of the infringed, or authentic, merchandise, which is the method

prescribed in Application Note 2(A) to § 2B5.3 for cases where

the   infringing       item      “is     or   appears     to    a    reasonably       informed


      1
       If the infringement amount exceeds $5000, the increase is
determined by cross reference to the table in USSG § 2B1.1.



                                                2
purchaser to be identical or substantially equivalent to the

infringed   item;”     or    one   in   which      “the    retail   value   of   the

infringing item is difficult or impossible to determine without

unduly   complicating       or   prolonging     the   sentencing      proceeding.”

USSG § 2B5.3 cmt. n.2(A)(i), (iii).                Application Note 1 defines

the infringed item as “the copyrighted or trademarked item with

respect to which the crime against intellectual property was

committed.”      The infringing item is defined as “the item that

violates the copyright or trademark laws.”                 Id.

            At   the   sentencing       hearing,      in   response    to   Huang’s

objection to the use of the retail value of the infringed items

to determine the infringement amount, the government presented

testimony from the federal investigative agent.                     She testified

that she had been trained to recognize counterfeit merchandise,

but that the valuation of the counterfeit items was done by a

private investigator who was also an official representative for

all but one of the companies involved.                      The agent said she

accepted the investigator’s figures for the retail value of the

infringed items and that it would be a time-consuming process to

obtain   each    company’s       valuation    of    the    retail   value   of   the

infringing items.

            Huang’s attorney argued that, because Huang sold some

counterfeit merchandise to the agents, during the investigation,

for about one-tenth the retail value of the original items, the

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“infringement     amount”    should        be    determined          under    Application

Note 2(B) to § 2B5.3, which directs that the infringement amount

is the retail value of the infringing item multiplied by the

number     of   infringing       items,     in        any    case       not   covered    by

Application Note 2(A).           He suggested that the retail value of

the infringing items in Huang’s case would be $68,907.10.

            The     court   found    that        the       infringement       amount    was

difficult to ascertain, but ultimately decided to estimate the

infringement amount by taking half of the retail valuation of

the   infringed     items   as   determined           by    the    investigator.        The

reduction lowered Huang’s offense level to 20 and reduced his

Guidelines range to 33-41 months.

            After      hearing      from        the        parties      concerning      the

appropriate sentence in light of the 18 U.S.C. § 3553(a) (2006)

factors, the court decided to vary upward from the Guidelines

range. 2    The court observed that, after coming to live in the

United     States, 3    Huang     had      defrauded             many    companies      and

disregarded the laws of the United States.                        The court noted that

Huang had committed additional similar crimes while on pretrial

      2
       Although the court did not announce that it was varying,
rather than departing, above the Guidelines range, the sentence
was clearly a variance, and is identified as such in the court’s
sealed statement of reasons.
      3
       Huang is a Chinese citizen,                         but    has   permanent      legal
resident status in the United States.



                                           4
release. 4        Before imposing a sentence of forty-eight months, the

court stated that –

        [T]here is a compelling need to protect the public and
        to promote respect for the law. And I don’t believe a
        sentence within the guideline range, as I’ve derived
        it, accomplishes the purposes of sentencing in this
        case.   I don’t believe a sentence of 33 to 41 months
        will discourage this type of conduct.

                  On appeal, Huang first challenges the district court’s

determination of the infringement amount, arguing that the court

should have used the retail value of the infringing items.                            The

district court’s determination of the infringement amount in a

case       involving       counterfeit     merchandise       is   a   factual     finding

reviewed for clear error.                 United States v. Lozano, 490 F.3d

1317, 1322 (11th Cir. 2007); United States v. Yi, 460 F.3d 623,

638 (5th Cir. 2006).

                  Here, the question initially is whether the district

court       properly        determined         the   infringement       amount     under

Application         Note    2(A)   to    § 2B5.3.       In   light     of   the   agent’s

testimony that many, if not all, of the infringing items were of

very       good    quality,    and      thus    would   appear    to    a   “reasonably

informed purchaser” to be “identical or substantially equivalent

to the infringed item[s],” see Application Note 2(A)(i), and the

       4
       After being released on December 17, 2010, Huang was
arrested in possession of thirty cartons of unstamped cigarettes
he had purchased in Virginia and was transporting to New York
for sale. His pretrial release was revoked and he was detained.



                                                5
difficulty recognized by the court in determining the retail

value of the infringing items, see Application Note 2(A)(iii),

we    conclude    that    the    district        court    did    not   clearly    err    in

applying Application Note 2(A) and using the retail value of the

infringed    items       as     the   starting         point.        Adopting    Huang’s

alternative valuation based on only a few undercover sales would

not    necessarily        have    produced         a     more    accurate       estimate.

Therefore, we conclude that the district court’s determination

of the infringement amount and Huang’s offense level was not

clearly erroneous.

            Next,        Huang    asserts        that      a    sentence      above     the

Guidelines       range    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, 51 (2007).                               This review

requires consideration of both the procedural and substantive

reasonableness of a sentence.                 Id.; see United States v. Lynn,

592 F.3d 572, 575 (4th Cir. 2010).                        A “deferential abuse-of-

discretion       standard     applies    to      any     sentence,     whether    inside,

just outside, or significantly outside the Guidelines range.”

United States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.

2012) (internal citation and quotation marks omitted), petition

for cert. filed, June 27, 2012.                  In reviewing any variance, the

appellate    court       must    give    due      deference       to   the    sentencing

                                             6
court’s decision.         United States v. Diosdado-Star, 630 F.3d 359,

366 (4th Cir.) (citing Gall, 552 U.S. at 56), cert. denied, 131

S. Ct. 2946 (2011).

              Here, the court gave an individualized assessment of

Huang’s situation in light of the § 3553(a) factors, including

his continued criminal conduct while on pretrial release, and

decided that the seriousness of his offense and the likelihood

that he would commit further such crimes necessitated a sentence

above the Guidelines range to protect the public and promote

respect for the law.           See United States v. Carter, 564 F.3d 325,

328    (4th     Cir.     2009)      (sentencing        court      “must       make     an

individualized        assessment      based       on      the    facts    presented”)

(citation and emphasis omitted).                  Huang argues that the court

failed to recognize that he had already been punished for his

criminal      conduct     on     pretrial       release     by   the     loss    of   an

adjustment      for     acceptance    of        responsibility,        USSG     § 3E1.1.

However, even if this court might weigh the § 3553(a) factors

differently and select a lesser sentence, the district court’s

sentence deserves deference.            See United States v. Jeffery, 631

F.3d   669,    679-80     (4th    Cir.),    cert.      denied,     132   S.     Ct.   187

(2011).    Therefore, we conclude that the district court did not

abuse its discretion and that the variance was not substantively

unreasonable.



                                            7
           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 the

court and argument would not aid the decisional process.

                                                              AFFIRMED




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