United States v. Joseph Kai Cheng

282 F. App'x 535

Opinion

MEMORANDUM

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Defendant-appellant Joseph Kai Cheng appeals his 30-month sentence imposed pursuant to his plea of guilty to one count of conspiracy to traffic in counterfeit goods and contraband cigarettes in violation of 18 U.S.C. § 371 and to one count of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court properly calculated the Sentencing Guidelines range and did not abuse its discretion in applying Application Note 2 to U.S.S.G. § 2B5.3. See United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006).

Because Cheng failed to object at sentencing to the standard of proof used to establish the infringement amount we review for plain error. See United States v. Riley, 335 F.3d 919, 925 (9th Cir.2003); see also Fed.R.Crim.P. 52(b). The weight of the evidence would satisfy even the clear and convincing standard. The district court properly determined that the infringement amount was in excess of $1 million.

The district court did not clearly err in declining to apply a four-level decrease for Cheng’s role in the offense. See Cantrell, 433 F.3d at 1283.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.