                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-4227


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LON JONATHAN BROOKS, JR.,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:08-cr-00048-RLV-DSC-3)


Submitted:   February 17, 2011              Decided:    March 18, 2011


Before SHEDD and    AGEE,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lon       Jonathan         Brooks      pled      guilty        to    conspiracy       to

defraud the United States, 18 U.S.C. § 371 (2006).                                    On appeal,

he   challenges       his       60-month     sentence           on   the   grounds        that   the

district court erred in imposing various enhancements and that

his sentence is procedurally unreasonable because the district

court   failed        to     provide        an     individualized           assessment           with

respect to its consideration of the 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2010) factors.                 We affirm.

            We       review      a    sentence        for    reasonableness,             using    an

abuse of discretion standard of review.                              Gall v. United States,

552 U.S. 38, 51 (2007).                 The first step in this review requires

us to ensure that the district court committed no significant

procedural error.               United States v. Evans, 526 F.3d 155, 161

(4th    Cir.        2008).            Significant         procedural            errors      include

“‘failing       to        calculate         (or       improperly           calculating)          the

Guidelines      range,       .    .    .    failing     to       consider       the   §     3553(a)

factors,    .    .    .    or    failing      to      adequately        explain       the    chosen

sentence--including an explanation for any deviation from the

Guidelines range.’”              United States v. Carter, 564 F.3d 325, 328

(4th Cir. 2009) (quoting Gall, 552 U.S. at 51).                                    The district

court must make an individualized assessment based on the facts

presented      by    applying         the   relevant        §    3553(a)        factors     to   the

circumstances of the case.                       Gall, 552 U.S. at 51.                      We then

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consider the substantive reasonableness of the sentence, taking

into account the totality of the circumstances.

            Brooks         first     challenges          the     district           court’s

imposition     of    a     four-level     enhancement          because       the    offense

involved     fifty    or      more   victims,     U.S.     Sentencing          Guidelines

Manual     (“USSG”)        § 2B1.1(b)(2)(B)        (2008);        a      fourteen-level

enhancement because the loss involved was $400,000 or more, USSG

§ 2B1.1(b)(1)(H); and a two-level enhancement because Brooks was

in the business of receiving and selling stolen property, USSG

§ 2B1.1(b)(4).       When reviewing the district court’s application

of the Sentencing Guidelines, we review findings of fact for

clear error and questions of law de novo.                         United States v.

Allen, 446 F.3d 522, 527 (4th Cir. 2006).

            With respect to the enhancements based on the number

of victims and the amount of loss, Brooks does not contest that

an   enhancement         is    properly        applied     for        “all     reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.”                    USSG § 1B1.3(a)(1)(B).

Instead, he argues that he, Rosie Brooks (his mother), and Eric

Scott    Brooks     (his      half-brother)      worked        separately          from   one

another and each ran his or her own operation.                               He therefore

maintains the district court erred in holding him responsible

for all of the victims and loss attributed to the conspiracy.

Because the district court’s finding at sentencing that Brooks’

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activities were “one spoke in the same wheel of the conspiracy”

is    sufficiently        supported      by      the    facts      in      the    record,    we

conclude    the        district     court     did      not   err     in      imposing      these

enhancements.

            Brooks also argues that the district court erred in

imposing    a     two-level       enhancement          based    on      its      finding    that

Brooks    was     in    the   business      of      receiving        and     selling      stolen

property.       Specifically, Brooks argues that because he was not a

“fence” the enhancement could not be applied to him.                                 We agree

with the Government that, even assuming without deciding that

the    application       of   the    enhancement         was     improper,          any    error

resulting from the imposition of the enhancement was harmless.

See United States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010)

(“To     avoid     reversal       for     non-constitutional,                 non-structural

errors . . ., the party defending the ruling below (here, the

Government) bears the burden of demonstrating that the error was

harmless . . . .”).               Without application of this enhancement,

Brooks’ Guidelines range would have been seventy to eight-seven

months, still above the statutory maximum of sixty months, which

ultimately        dictated        his       Guidelines          range.              See     USSG

§ 5G1.1(c)(1).           Hence, the two-level reduction would not have

reduced     the        applicable       Guidelines’          term       of       imprisonment.

Furthermore, the court stated at sentencing that consideration

of the statutory factors advocated in favor of the statutory

                                              4
maximum, “and a higher one if possible.”                     It is therefore clear

that   the   district      was    not    inclined       to    consider       a    downward

variance sentence even if a lower Guidelines range could have

been determined.

             Brooks    also      argues     his       sentence       is   procedurally

unreasonable because the district court failed to provide an

individual assessment of all of the applicable § 3553(a) factors

considered and to articulate why it rejected Brooks’ argument

for a below-Guidelines sentence based on a potential sentence

disparity between the co-conspirators.                  Brooks’ claim is without

merit.

             The district court acknowledged Brooks’ request for a

downward variance based on the abuse he suffered as a child,

noting that he suffered “not only lack of guidance by parents,

but    incorrect      guidance     and    teaching          and     training      in    law

breaking.”       However,        the    court       found    that    Brooks       had   not

identified a factor that would justify a downward variance.                             The

district court noted the check-writing scheme was extensive and

involved “physical abuse of vulnerable people” and “corruption

of    individuals     by   recruitment         of    numerous       people       into   the

enterprise.”       The court remarked that the conspiracy was multi-

state in nature and included more than thirty-five participants.

The court further noted that Brooks’ criminal activity suggested

a “very high likelihood of recidivism.”                       The court therefore

                                           5
rejected Brooks’ plea for lenience, citing the seriousness of

the offense, the need to promote respect for the law, provide

just punishment, provide deterrence, and protect the public.                       In

fact, the court stated that “the nature of the offense would

argue for an upward direction,” and the only reason his sentence

would   not     be   akin    to   that       of   his    mother    (108      months’

imprisonment) was because the court was limited by the statutory

maximum.        Accordingly,      we     conclude       Brooks’    sentence      was

procedurally reasonable.

           We    therefore    affirm     Brooks’    sentence.           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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