UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4574

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PURAN HARISH PHULWANI,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:15-cr-00369-TDS-1)

Submitted: March 14, 2017 Decided: March 16, 2017

Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit 

Judge.

Affirmed by unpublished per curiam opinion.

Brian Michael Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North 

Carolina, for Appellant. Ripley Rand, United States Attorney, 

Graham T. Green, Assistant United States Attorney, Winston-Salem, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Puran Harish Phulwani pled guilty to two counts of 

communicating threats, in violation of 18 U.S.C. § 876(c) (2012). 

The district court sentenced him to 44 months in prison as to each 

count, to be served concurrently. Phulwani argues on appeal that 

the district court erred in denying him a reduction in offense 

level for acceptance of responsibility pursuant to U.S. Sentencing 

Guidelines Manual § 3E1.1 (2015), and that the district court erred 

by declining to impose a downward departure or variance based on 

his mental health issues. We affirm.

This court reviews a district court’s decision to deny an 

acceptance of responsibility adjustment for clear error. United 

States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999). A defendant’s 

postindictment criminal conduct may be sufficient justification 

for a district court’s finding that the defendant has not fully

accepted responsibility for his criminal behavior, United States 

v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993), even where the underlying

offense involves dissimilar conduct, United States v. Shivers, 146 

Fed. Appx. 609, 611-12 (4th Cir. 2005). We have reviewed the 

briefs and materials submitted in the joint appendix and find no 

clear error in the district court’s decision to deny Phulwani a 

reduction in offense level for acceptance of responsibility based 

on his postindictment conduct.
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Phulwani also contends that the district court erred by 

declining to impose a downward departure or a downward variant 

sentence in light of his mental health issues. We review the 

district court’s sentence, “whether inside, just outside, or 

significantly outside the Guidelines range,” for reasonableness 

“under a deferential abuse-of-discretion standard.” Gall v. 

United States, 552 U.S. 38, 41 (2007). We presume that a sentence 

within a properly calculated advisory Guidelines range is 

reasonable, and this “presumption can only be rebutted by showing 

that the sentence is unreasonable when measured against the 18 

U.S.C. § 3553(a) [(2012)] factors.” United States v. Louthian, 

756 F.3d 295, 306 (4th Cir. 2014).

The district court considered Phulwani’s request for a 

24-month variant sentence in light of his mental health issues, 

but concluded that his lengthy criminal history, the need for 

deterrence, and the need to protect the public warranted a 44-month 

sentence. Phulwani has not overcome the presumption that the 

district court’s decision to deny his variance request and impose 

a within-Guidelines sentence was reasonable. See Louthian, 756 

F.3d at 306. 

Insofar as Phulwani seeks review of the district court’s 

decision not to depart downward in sentencing him, we “lack the 

authority to review a sentencing court’s denial of a downward 

departure,” as the record does not suggest that “the court failed 
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to understand its authority to do so.” United States v. Hackley, 

662 F.3d 671, 686 (4th Cir. 2011) (internal quotation marks 

omitted). Accordingly, we affirm Phulwani’s sentence. 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