## Facts

- Herman and Xavier Lozano operated Suplimet Corporation, a Miami wholesale distributor of cell-phone parts.
- Undercover purchases from Miami retailers led authorities to Suplimet as the source of counterfeit cell-phone components.
- A search of Suplimet’s warehouse found about 85,000 counterfeit components described as indistinguishable from genuine trademarked goods.
- The counterfeiting activity involved domestic sales and substantial exports, with most sales directed to Latin American buyers.
- The presentence report calculated an infringing amount exceeding $10 million by using the U.S. retail value of comparable legitimate goods, producing an advisory Guidelines range of about 70–87 months.
- The defendants argued the valuation should reflect Latin American market prices because that was the primary market, and U.S. retail value overstated harm.
- The district court used U.S. retail value for the Guidelines calculation, imposed within-range sentences, and stated that it would impose the same sentences even if a lower foreign-market valuation applied based on 18 U.S.C. § 3553(a).

## Issues

1. Whether the district court erred under U.S.S.G. § 2B5.3 by using U.S. retail value of the genuine goods to calculate the “infringing amount,” rather than the value in the foreign market where most counterfeit goods were sold.
2. If the infringing-amount calculation was erroneous, whether the error was harmless because the court announced it would impose the same sentence under § 3553(a) regardless of the disputed Guidelines calculation.

## Decision

- The Eleventh Circuit affirmed the sentences.
- The court assumed without deciding that using U.S. retail value might have been error.
- Any assumed Guidelines error was harmless because the district court made a clear, specific statement that it would impose the same sentences based on § 3553(a) even under a lower valuation.
- The sentences were upheld as reasonable in light of the scale and seriousness of the counterfeiting operation.

## Legal Principles

- A miscalculation of the advisory Sentencing Guidelines can be harmless when the district court clearly states it would impose the same sentence regardless of how the disputed Guidelines issue is resolved.
- For harmlessness, the record must show an independent sentencing rationale grounded in 18 U.S.C. § 3553(a) that supports the imposed sentence.
- When harmless error applies, the appellate court may affirm without deciding the contested Guidelines-interpretation question (here, which market’s “retail value” governs U.S.S.G. § 2B5.3’s infringing-amount measure).

## Conclusion

The Eleventh Circuit affirmed the Lozanos’ sentences for trafficking in counterfeit goods because any potential error in using U.S. retail prices to compute the infringing amount under U.S.S.G. § 2B5.3 did not affect the outcome where the district court independently justified the same sentences under § 3553(a).


United States v. Lozano, 490 F.3d 1317 (11th Cir. 2007)