UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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 
3

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’ 
4

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 
5

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 multistate 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 
6

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