                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-1511
                                     ____________

                           UNITED STATES OF AMERICA

                                           v.

                                RANDY HUCKS,
                                     a/k/a
                             ABUBAKR MUHAMMED,
                                     a/k/a
                            RANDY RANDOLPH HUCKS,
                                     a/k/a
                                  ABU BARR

                                         Randy Hucks,

                                              Appellant
                                     ____________

                      On Appeal from United States District Court
                        for the Eastern District of Pennsylvania
                           (E.D. Pa. No. 2-11-cr-00326-001)
                             District Judge Anita B. Brody
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 23, 2014

     Before: FUENTES and FISHER, Circuit Judges, and STARK,* District Judge.

                               (Filed: February 11, 2014)


      *
       The Honorable Leonard P. Stark, District Judge for the United States District
Court for the District of Delaware, sitting by designation.
                                       ____________

                                OPINION OF THE COURT
                                     ____________

FISHER, Circuit Judge.

       Appellant Randy Hucks appeals his conviction in the United States District Court

for the Eastern District of Pennsylvania of two counts of mail fraud and his sentence to a

33-month term of incarceration. Hucks asserts three challenges: (1) that the Government

produced insufficient evidence to sustain his conviction for mail fraud; (2) that the

District Court miscalculated his advisory sentencing guidelines range; and (3) that the

District Court imposed a procedurally unreasonable sentence. For the reasons that

follow, we will affirm both Hucks’s conviction and sentence.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Between November 1, 2010 and March 20, 2011, Hucks smuggled counterfeit

pharmaceuticals from China to Philadelphia, Pennsylvania. In November 2010, a

Customs and Border Protection officer conducted a search of a suspicious parcel shipped

from Shanghai, China, as it passed through O’Hare International Airport in Chicago,

Illinois. The package contained 3,040 tablets marked as Cialis, arranged in two-tablet


                                              2
blister packs. Cialis is a medication manufactured by Eli Lilly & Co. (“Lilly”) to treat

erectile dysfunction.

       The officer reported the package to a Homeland Security Investigations (“HSI”)

agent in Chicago, who subsequently forwarded the package to HSI Special Agent

Thomas Acerno in Philadelphia. An analysis by the Forensic Chemistry Center at the

Food and Drug Administration (“FDA”) revealed that the tablets did not contain tadalafil,

the active ingredient in Cialis. The FDA concluded that the pills found in the package

were inconsistent with the composition of genuine Cialis.

       On March 22, 2011, Agent Acerno searched a second package, finding 10,188

tablets purporting to be Viagra in four-tablet blister packs. Viagra, manufactured by

Pfizer, Inc., is a prescription drug also used to treat erectile dysfunction. On March 30,

2011, the agents executed a search warrant for Hucks’s home, finding this second

package. The FDA Forensic Chemistry Center found that the pills in the second package

were not genuine Viagra.

       A grand jury returned a superseding indictment on April 12, 2012, charging Hucks

with two counts of mail fraud, in violation of 18 U.S.C. § 1341 (Counts I and II); two

counts of smuggling goods into the United States, in violation of 18 U.S.C. § 545 (Counts

III and IV); and two counts of trafficking in counterfeit goods, in violation of 18 U.S.C. §

545 (Counts V and VI). Hucks was arrested on April 14, 2011 and confessed that he sold

counterfeit Viagra and Cialis. He had ordered the counterfeit pills from China via the


                                             3
website Alibaba.com for 50 cents per blister pack, which he resold for $5 per blister pack

at flea markets, bars, and on the street.

       At trial, a trademark attorney for Lilly testified that the pills appeared “virtually

identical to our genuine Cialis product.” JA at 142. Although the attorney noted

imperfections, he testified that the tablets were the correct shape and color, and bore the

trademarked stylized “C”. The packaging presented itself as Cialis with the name “Lilly,”

as well as the trademarked swirl in the correct colors. The attorney testified that the

counterfeit pills possessed all three of the registered Cialis trademarks, along with Lilly’s

trademark. He testified that the pills were, “in terms of quality of appearance[,] . . . a very

high quality counterfeit.” JA at 144.

       A representative from Pfizer also testified, opining that the counterfeit pills were

of reasonably good quality in terms of appearance because the pills appeared “very, very

similar to the product we make.” JA at 191. The counterfeit tablets were the correct

shape and color, and possessed the trademarked “VGR 100” and “Pfizer” markings. The

Pfizer representative testified that “[e]ven if you’ve seen the legitimate cluster pack

before, you would think that this is probably real.” JA at 190-91. The jury found Hucks

guilty on both counts of mail fraud and smuggling goods into the United States, but

acquitted him on the trafficking in counterfeit goods counts.

       Following Hucks’s conviction, the United States Probation Office prepared a

Presentence Investigation Report (“PSR”). The PSR assigned Hucks a base offense level


                                               4
of eight. See U.S.S.G. § 2B5.3(a). It then relied upon the retail price of genuine Viagra

and Cialis to determine the infringement amount. See U.S.S.G. § 2B5.3 App. Note 2.

Genuine Viagra tablets retail from $22 to $24 per tablet and genuine Cialis tablets retail

for $29 per tablet. Therefore, the PSR calculated the total infringement amount of the

10,188 counterfeit Viagra pills ($224,136) and 3,040 counterfeit Cialis pills ($88,160) to

be $312,296, resulting in a 12-level enhancement pursuant to § 2B1.1(b)(1)(G). The PSR

also applied a two-level enhancement under § 2B5.3(b)(3) because the offense involved

the importation of counterfeit goods. Hucks’s adjusted offense level was 22 which, when

coupled with his criminal history category of II, resulted in an advisory guidelines range

of 46 to 57 months’ imprisonment.

       The District Court adopted the findings of the PSR but departed downward by

three levels, concluding that the infringement amount substantially exceeded the actual

pecuniary harm to Lilly and Pfizer. This resulted in an offense level of 19 and a

corresponding guidelines range of 33 to 41 months. The District Court sentenced Hucks

to a 33-month period of incarceration followed by a three-year term of supervised release,

a $1,500 fine, and a $400 special assessment. On February 22, 2013, Hucks timely

appealed his conviction and sentence.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).


                                             5
       We review a challenge to the sufficiency of the evidence “in the light most

favorable to the prosecution to determine whether any rational trier of fact could have

found proof of guilt[] beyond a reasonable doubt.” United States v. Caraballo-Rodriguez,

726 F.3d 418, 430 (2013) (en banc) (quoting United States v. Brodie, 403 F.3d 123, 133

(3d Cir. 2005)) (alterations in original; internal quotation marks omitted). We will

uphold the jury’s verdict so long as it passes the “bare rationality” test. United States v.

Benoit, 730 F.3d 280, 290 (3d Cir. 2013) (quoting Caraballo-Rodriguez, 726 F.3d at

432). “The evidence does not need to be inconsistent with every conclusion save that of

guilt if it does establish a case from which the jury can find the defendant guilty beyond a

reasonable doubt.” Caraballo-Rodriguez, 726 F.3d at 432 (citation and internal quotation

marks omitted).

       We review a sentencing court’s factual findings related “to the Guidelines for clear

error” and exercise “plenary review over a district court's interpretation of the

Guidelines.” United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007). We review the

reasonableness of the sentence imposed for abuse of discretion. United States v. Tomko,

562 F.3d 558, 567–68 (3d Cir. 2009) (en banc) (citing Gall v. United States, 552 U.S. 38,

51 (2007)).

                                             III.

       Hucks argues that: (1) the evidence adduced at trial was insufficient to sustain his

conviction for mail fraud under 18 U.S.C. § 1341; (2) the District Court miscalculated the


                                              6
infringement amount under U.S.S.G. § 2B5.3, by relying on the retail value of genuine

Viagra and Cialis; and (3) the District Court failed to give meaningful consideration to

his sentencing arguments, as required by 18 U.S.C. § 3553(a)(6). We conclude that each

challenge fails.

                                             A.

       We construe the mail fraud statute, 18 U.S.C. § 1341, expansively “to prohibit all

schemes to defraud by any means of misrepresentation that in some way involve the use

of the postal system.” Nat'l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 106 (3d Cir. 2012)

(quoting United States v. Olatunji, 872 F.2d 1161, 1166 (3d Cir. 1989)) (quotation marks

omitted). We will affirm a mail fraud conviction unless we determine that no rational jury

could find that: “(1) there was a scheme to defraud; (2) the defendant acted with the

intent to defraud; and (3) the defendant used the mails to further or carry out the scheme.”

United States v. Riley, 621 F.3d 312, 329 (3d Cir. 2010) (citing United States v. Jimenez,

513 F.3d 62, 81 (3d Cir. 2008)). We have recognized that a scheme to defraud by mail

includes “any course of action to deprive another of money, property, or the intangible

right to honest services through fraudulent representations reasonably calculated to

deceive a person of ‘ordinary prudence.’” United States v. Ciavarella, 716 F.3d 705, 728

(3d Cir. 2013) (citing United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir. 1978); 18

U.S.C. §§ 1341, 1346).




                                              7
       Hucks contends that the evidence was insufficient to establish that he ever

defrauded or intended to defraud his customers. Culled to its essence, his argument is

that no reasonable person purchasing (purported) Viagra or Cialis outside a bar or club, at

a flea market, or on the street would believe the products to be genuine, and that there is

no evidence that Hucks falsely suggested to his customers that the pills were real. We

have no difficulty rejecting this argument.

       Addressing the latter point first, it is of no moment that the Government did not

produce direct evidence of Hucks lying to his customers about the pills’ provenance

because the pills themselves betray the lie. As the representatives from Pfizer and Lilly

testified, the tablets were near-perfect imitations of the genuine product. To the untrained

eye, the subtle differences in packaging between Hucks’s counterfeits and the real thing

would have been undetectable. The jury very reasonably could have concluded that

Hucks intended to pass off the products as the real thing, even in the absence of direct

evidence of Hucks lying about their nature.

       With respect to the former point, Hucks essentially asserts a theory of caveat

emptor: any reasonably prudent individual purchasing these medications on the street

from a huckster such as he would know that they were not getting the real thing.

Therefore, in his view, he could not have had the intent to defraud. Of course, the fact

that a fraud victim has their own gullibility to blame is no defense for the fraudster. See

United States v. Hoffecker, 530 F.3d 137, 177 (3d Cir. 2008) (quoting United States v.


                                              8
Rennert, 374 F.3d 206, 213 (3d Cir. 2004)). The “person of ordinary prudence” language

that courts have imputed to the mail fraud statute, see Ciaveralla, 716 F.3d at 728, is

intended, in part, to police the border between fraud and harmless sales puffing, United

States v. Coffman, 94 F.3d 330, 334 (7th Cir. 1996). It is not a license for criminals to

prey on people of “below-average judgment or intelligence” – those most in need of the

law’s protection. Id.

       Hucks purchased thousands of high-quality counterfeit pills, packaged for retail

sale in blister packs nearly identical to the packaging used by Lilly and Pfizer. It was not

irrational for the jury to have inferred from this evidence that Hucks possessed the intent

to defraud – indeed, the notion that Hucks would have gone to the trouble to purchase

counterfeits with such verisimilitude only to sell them as generic “male enhancement”

products is itself irrational. The evidence produced at trial was clearly sufficient to

sustain his conviction for mail fraud, and we will affirm.

                                             B.

       Hucks challenges the method used by the District Court to calculate the

infringement amount and the corresponding offense level under U.S.S.G. § 2B5.3.

Specifically, he argues that the infringement amount should not have been measured by

the value of the infringed item (i.e., genuine Cialis and Viagra), but rather by the value of

the infringing item (i.e., counterfeit Cialis and Viagra). We disagree.




                                              9
       Section 2B5.3 of the Sentencing Guidelines addresses criminal trademark and

copyright infringement, and incorporates the table in § 2B1.1 that provides for a

gradually increasing offense level depending on the value of the loss. Application Note 2

of § 2B5.3 describes two methods for determining the loss amount in a trademark

infringement case:

       (A) Use of Retail Value of Infringed Item. – The infringement amount is
       the retail value of the infringed item, multiplied by the number of infringing
       items, in a case involving any of the following:

              (i) The infringing item . . . is, or appears to a reasonably informed
              purchaser to be, identical or substantially equivalent to the infringed
              item;

       ...

       (B) Use of Retail Value of Infringing Item. – The infringement amount is
       the retail value of the infringing item, multiplied by the number of
       infringing items, in any case not covered by subdivision (A) of this
       Application Note . . . .

U.S.S.G. § 2B5.3 App. Note 2. Accordingly, Hucks’s valuation theory applies only in

those situations not contemplated by Subdivision (A) of Application Note 2. Here, the

District Court found that the counterfeit pills were identical or substantially equivalent to

the genuine article, and therefore applied Subdivision (A). We find nothing clearly

erroneous about the District Court’s determination that the counterfeit pills would to the

reasonable observer appear to be identical or substantially equivalent to the real product.

We will, therefore, affirm the District Court’s calculation.




                                             10
                                             C.

       We ordinarily review the procedural reasonableness of a sentence for an abuse of

discretion. Tomko, 562 F.3d at 567. Hucks claims to have presented a § 3553(a)

sentencing disparity argument in his sentencing memorandum, which preserved this

argument despite his failure to present it at the sentencing hearing. In United States v.

Sevilla, 541 F.3d 226, 231-32 (3d Cir. 2008), we held that when a defendant raises an

argument in a sentencing memorandum but the argument goes unacknowledged by the

District Court at sentencing, no additional objection is necessary to preserve it for

appellate review. The Government believes that decision to have been wrongly decided,

and this Court will consider Sevilla’s vitality in an upcoming en banc rehearing. See

United States v. Flores-Mejia, 531 Fed. App’x 222 (3d Cir. July 19, 2013), reh’g en banc

granted, No. 12-3149 (Sept. 18, 2013).

       But in reality, we need not wrestle with Sevilla and Flores-Mejia because Hucks

failed even to present this argument in his sentencing memorandum. On appeal, Hucks

contests the procedural soundness of his sentence on the basis that the District Court

failed to consider the need to avoid “unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” 18 U.S.C. §

3553(a)(6). The problem with Hucks’s contention is that the disparity argument he raised

in the District Court was part of a request for a downward departure. In his

memorandum, he argued that “[a] sentence in the guideline range proposed by the


                                             11
Probation Officer and the government would lead to sentencing disparity.” JA at 320

(emphasis added). He then identified four cases from District Courts around the country

purportedly imposing sentences for selling counterfeit Viagra and Cialis that were below

Hucks’s proposed guidelines range, and concluded that “[f]or all of the foregoing reasons

this Court should depart from the offense level calculated on the basis of any

infringement amount and vary from the applicable sentencing guideline range to impose a

sentence of home confinement.” Id. (emphasis added).

       But, as the Government adroitly observes, Hucks received the downward

departure he requested. The District Court stated that the guidelines “as calculated by the

Probation Office are high,” and, accordingly, granted a three-level departure and

sentenced Hucks at the bottom of the new range. JA at 411. Hucks simply did not

present to the District Court the § 3553(a) argument he now presses on appeal – indeed,

nowhere in his sentencing memorandum does Hucks even discuss § 3553(a). Nor did his

terse request, appended to the end of his memorandum, that the District Court vary from

the applicable guidelines range suffice to preserve the argument. United States v. Joseph,

730 F.3d 336, 341 (3d Cir. 2013) (holding that simply raising an “issue” in the District

Court “is insufficient to preserve for appeal all arguments bearing on that issue”).

Accordingly, we will review the District Court’s application of the § 3553(a) factors for

plain error.




                                             12
          To satisfy our plain error doctrine, the error must be clear or obvious and it must

affect substantial rights, which typically means that the error was prejudicial to the

defendant. United States v. Russell, 564 F.3d 200, 203-04 (3d Cir. 2009) (quoting United

States v. Evans, 155 F.3d 245, 251 (3d Cir. 1998)). We find no error in the District

Court’s consideration of the factors under § 3553(a). A district court need not “raise

every conceivable issue on its own initiative or even make explicit findings as to each

sentencing factor if the record makes clear that the court took all the factors into

account.” United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012). In considering the

nature and circumstances of the offenses, the District Court recognized the severity of the

crime – Hucks intended to distribute unregulated pharmaceuticals, the contents of which

were unknown and could have been harmful. JA at 410. The District Court found no

contrition in Hucks’s allocution, and stated that a within-guidelines sentence was

necessary for deterrence and to protect the public. Id. Hucks’s counsel did not raise a

disparity argument under § 3553(a). “The District Court need not discuss and make

findings as to each of the § 3553(a) factors[,] . . . [so long as it] gave meaningful

consideration to the relevant § 3553(a) factors.” United States v. Handerhan, 739 F.3d

114, 122 (3d Cir. 2014) (quoting United States v. Jackson, 467 F.3d 834, 841 (3d Cir.

2006)) (internal quotation marks omitted). The District Court satisfied its obligations and

did not plainly err in its consideration of the § 3553(a) factors. Accordingly, we will

affirm.


                                               13
                                    IV.

For the reasons set forth above, we will affirm Hucks’s conviction and sentence.




                                    14
