* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30380

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ANTON KRASNOV,

Defendant-Appellant

Cons. w/ No. 12-30461

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DENYS ZADOROZHNYI,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Louisiana 

USDC No. 2:11-CR-220-1

USDC No. 2:11-CR-220-5

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

April 8, 2013

Lyle W. Cayce

Clerk
No. 12-30380 c/w

No. 12-30461

R. 47.5.4.

2

Anton Krasnov and Denys Zadorozhnyi, along with three additional

codefendants, were charged with various counts of conspiracy and bank fraud.

Both pleaded guilty to a single count of conspiring to commit bank fraud.

Krasnov received a two-year prison sentence, substantially higher than his

guidelines imprisonment range of zero to six months, and Zadorozhnyi was

sentenced to 30 months of imprisonment, also substantially higher than his 6 to

12 months guidelines range. Both appeal their sentences.

Many of Krasnov and Zadorozhnyi’s arguments rest on the premise that

the district court impermissibly departed upward in imposing their sentences.

Based upon this perception, they argue that departure would not have been

justified under certain provisions of the Sentencing Guidelines relevant to

departures. They also argue that whether they are likely to pay restitution

cannot justify a departure. Finally, they contend that they did not receive the

required notice that the court was considering an upward departure and were

not given an opportunity to comment on the court’s reasons for departing.

Krasnov and Zadorozhnyi did not raise any arguments at sentencing related to

the departure provisions in the Guidelines; thus, our review is for plain error

only. See United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011). 

At sentencing, the district court explained that it had taken into account

the Sentencing Guidelines as well as the 18 U.S.C. § 3553(a) factors and

specifically the seriousness of each defendant’s actions and their lack of criminal

history. The district court also adopted the victim’s argument that severe

sentences were necessary for deterrence. It did not refer to the sentences as

departures from the Guidelines or cite to any departure provision in the

Guidelines. Because the district court accounted for the guidelines ranges but

imposed sentences outside of those ranges based on the § 3553(a) factors, the

sentences constitute variances rather than departures. See United States v.
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No. 12-30461

3

Mejia-Huerta, 480 F.3d 713, 721 (5th Cir. 2007). Thus, the court was not

compelled to give notice thatitintended to impose an above-guidelines sentence

or to consider the criteria for the departures described in the Guidelines and

committed no error. See id. at 722-23. The reference to “departures” is the

statement of reasons appears to be an inadvertent error, given that the section

used to describe the sentence is the one used for variances, not departures.

In their reply brief, Krasnov and Zadorozhnyi argue for the first time that

the district court committed procedural error by failing to provide sufficient

reasons to justify the sentences. Issues raised for the first time in a reply brief

are abandoned;thus, we decline to consider the procedural reasonableness ofthe

sentences. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). In any event,

the district court addressed the reasons for the sentence sufficiently for us to

review them.

By objecting at sentencing, Krasnov and Zadorozhnyi have preserved the

issue ofthe substantive reasonableness oftheir sentences. We review a sentence

for reasonableness under an abuse of discretion standard, taking into account

the totality of the circumstances. Gall v. United States, 552 U.S. 38, 51 (2007);

UnitedStates v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). Where,

as here, the district court varies upward from the guidelines range, we must

determine whether the sentence “unreasonably fails to reflect” the § 3553(a)

sentencing factors. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). 

Krasnov and Zadorozhnyi take issue with the district court’s rationale for

imposing their sentences, contending that it took into account purportedly

improper factors, failed to account for their minor roles in the offense and the

need to avoid unwarranted sentencing disparities, placed too much emphasis on

the need for deterrence, and held them accountable for larger losses than they

caused. Although the sentences imposed by the district court were substantially

higher than the advisory guidelines ranges, the district court was in the best
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No. 12-30461

4

position to judge Krasnov and Zadorozhnyi and their circumstances, and the

reasons given by the district court sufficiently supportthe sentences. See United

States v. Williams, 517 F.3d 801, 812-13 (5th Cir. 2008). The court engaged in

a thorough discussion, showing thatit had carefully examined the record. It tied

the reasons for its sentences to specific, relevant facts, including the nature and

circumstances of the offense—specifically the seriousness of the crime and the

impactthatit had on the victim—the need for deterrence, and the circumstances

ofthe defendants. The court specifically accounted for the defendants’ youth and

minor roles in the overall criminal scheme. It considered no improper factors.

The court made an individualized assessment and was free to conclude, as it did,

thatin Krasnov and Zadorozhnyi’s cases,the guidelines ranges gave insufficient

weight to some of the sentencing factors. See § 3553(a); Williams, 517 F.3d at

809. Krasnov and Zadorozhnyi have not shown that the court failed to take into

account a factor that should have received significant weight, gave significant

weight to an irrelevant or improper factor, or made a clear error of judgment in

balancing the sentencing factors. See Smith, 440 F.3d at 708.

Finally Krasnov and Zadorozhnyi contend that their trial attorneys

rendered ineffective assistance. However, we generally do not consider

ineffective assistance claims on direct appeal, and the record is not sufficiently

developed for us to address them here. See United States v. Cantwell, 470 F.3d

1087, 1091 (5th Cir. 2006). 

The judgment of the district court is AFFIRMED.