1 14-4364-cr United States v. Voloshin


## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4 th day of March, two thousand sixteen. PRESENT: RALPH K. WINTER, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges,

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. No. 14-4364-cr
J OHN V OLOSHIN , Defendant-Appellant

.

_____________________________________ For Appellee: D AVID T. H UANG , for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, CT. For Defendant-Appellant: L AWRENCE G ERZOG , New York, New York.2 Appeal from a judgment of the United Stat es District Court for the District of Connecticut (Chatigny, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-Appellant John Voloshin appeals from that provision of a judgment sentencing him to a term of supe rvised release for violating his original term of supervised release. We assume the parties’ familiarity w ith the underlying facts and the procedural history of this case. A sentence imposed for a supervised release violation is reviewed for reasonableness, United States v. McNeil , 415 F.3d 273, 277 (2d Cir. 2005), both substantive and procedural, United States v. Villafuerte , 502 F.3d 204, 206 (2d Cir. 2007). “Reasonableness review is similar to review for abuse of discretion and ma y require reversal when the district court’s decision ‘cannot be located within the range of pe rmissible decisions’ or is based on a legal error or clearly erroneous factual finding.” Villafuerte , 502 F.3d at 206 (quoting United States v. Sindima , 488 F.3d 81, 85 (2d Cir. 2007)). When, as here, a defendant fails to object to a purported sentencing error, we review for plain error. Id . at 208. Reversal for plain error shoul d “be used sparingly, solely in those circumstances in which a miscarriage of justice would ot herwise result.” United States v. Frady , 456 U.S. 152, 163 n.14 (1982). On appeal, Voloshin contends that the 27-month term of supervised release is procedurally and substantively unreasonable. As for procedural reasonableness, Voloshin argues that the district court did not provide any reasons for imposing a term of supervised release. “[T]he law in this circuit is we ll established that, in the abse nce of record ev idence suggesting3 otherwise, we presume ‘that a se ntencing judge has faithfully discharged her duty to consider the statutory factors.’” United States v. Verkhoglyad , 516 F.3d 122, 129 (2d Cir. 2008) (quoting United States v. Fernandez , 443 F.3d 19, 30 (2d Cir. 2006), abrogated on other grounds by Rita v. United States , 551 U.S. 338 (2007)). Voloshin does not point to any record evidence to rebut this presumption, and we have “declined to prescribe any ‘specific verbal formulations . . . to demonstrate the adequate discharge of the duty to ‘consider’ matters relevant to sentencing.’” Id

. (quoting United States v. Fleming , 397 F.3d 95, 100 (2d Cir. 2005)). The record evidence, moreover, demonstrates that the court was awar e of, and considered, the relevant statutory factors set forth in 18 U.S.C. §§ 3583 and 3553(a). Voloshin argues that his supervised release term is substantively unreasonable for two reasons. First, he asserts that th e only risk of recidivism is “ because of the imposition of an additional term of supervised releas e,” i.e., “[t]here is only a risk of further reporting violations so long as such reporting requirement s exist.” Blue at 10 (emphasis in original). Voloshin offers no case law or other legal support for this position. Indeed, 18 U.S.C. § 3583(c) required the district court to consider the factor set fort h in 18 U.S.C. § 3553(a)(2)(C): “the need for the sentence imposed . . . to protect the public fr om further crimes of the defendant.” As demonstrated by the nature of Voloshin’s supervis ed release violation, the risk of recidivism, and therefore the potential harm to the public, was considerable. Second, Voloshin argues that his sentence was substantively unreas onable because his supervised release viola tion bore no relation to his original crime of conviction. We are not persuaded. “Though supervised release is ‘part of the penalty for the initial offense,’ . . . the imposition of supervised release and the sanctions for violation are authorized by a statute and Guidelines scheme that is separate from the re gime that governs incarc eration for the original4 offense, . . . and the supervised release scheme serves purposes distinct from the goals of the original punishment[.]” United States v. McNeil , 415 F.3d 273, 277 (2d Cir. 2005) (quoting Johnson v. United States , 529 U.S. 694, 700 (2000)). In othe r words, the punishment “that ensues from revocation is partly based on new conduct, is wholly derived from a different source, and has different objectives altogeth er; it is therefore a different beast.” Id . The district court was not required to draw any connection to the original offense when it imposed an additional term of supe rvised release. Voloshin also challenges imposition of the c ondition that he not e ngage in the purchase or sale of real estate without prior approval fr om the probation office. We review challenges to conditions of supervised rel ease for abuse of discretion. United States v. MacMillen , 544 F.3d 71, 74 (2d Cir. 2008). Sentencing courts may impose conditions that are “reasonably related” to the nature and circumstances of the offense, the history and characteristics of the defendant, the need for deterrence, the need to protect the public from further crimes of the defendant, and the need to provide the defendant with training, medi cal care, or other correctional treatment. 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(b); United States v. Myers , 426 F.3d 117, 124 (2d Cir. 2005). A condition need only be reasonably related “‘to any one or more of the specified factors.’” Myers , 426 F.3d at 124 (quoting United States v. Abrar , 58 F.3d 43, 46 (2d Cir. 1995)). Voloshin’s underlying conviction involved fr aud relating to real esta te. He violated his supervised release by creating false documents a nd making misrepresentati ons in relation to a fake employment opportunity in a real estate investment firm . The challenged condition was thus reasonably related to the na ture and circumstances of the o ffense and Voloshin’s history and characteristics, as further demonstrated by his supervised re lease violation.5 We have considered all of Voloshin’s argum ents and conclude that they are without merit. We therefore AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk