NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 12

- 1032

________________ UNITED STATES OF AMERICA

v. VITALIY KROSHNEV ,

Appellant

________________ No. 12

- 1033

________________ UNITED STATES OF AMERICA

v. TATYANA KROSHNEV,

Appellant

________________ Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crimina l Action No s . 2

- 10

- c r - 0 0 5 38

- 001/2 & 2

- 11

- cr - 00466

- 001 )

District Judge: Honorable Norma L. Shapiro

________________ Submitted Under Third Circuit LAR 34.1(a)

April 19 , 2013 Before: AMBRO , HARDIMAN, and COWEN , Circuit Judges

(Opinion filed : April 25, 2013 )

________________2 OPINION

________________ AMBRO, Circuit Judge In connection with a prolonged scheme whereby they assisted hundreds of individuals to obtain fraudulently commercial driver‘s licenses in Pennsylvania, Appellants Vitaliy and Ta t yana Kroshnev pled guilty to charges of co nspiring to produce false identification documents , and were sentenced to 30 and 24 months‘ imprisonment , respectively . They now appeal their sentences. F or the reasons that follow, we affirm

. I. From 2007 to 2010 , the Kroshnevs owned and operated Inter national Training Academy (―ITA‖), which purported to provide training to persons seeking to obtain a Pennsylvania commercial driver‘s license (―CDL‖)

. Through ITA, the Kroshnevs assist ed individuals in obtaining CDLs fraudulently from the Pennsylvania De partment of Transportation (―PDOT‖) for a fee. PDOT must comply with federal standards when issuing CDLs, which include residency and language proficiency requirements. 1 As part of the scheme, ITA would provide false residency documents to out

- of

state individuals and assist them in using those documents to obtain a Pennsylvania driver‘s license

— a prerequisite for a CDL. The out

- of

- state applicants were then provided with ITA

- paid foreign language interpreters to furnish answers to the CDL computer

- bas ed knowledge test. These applicants received a CDL learner‘s permit on

1 See Commercial Motor Safety Act of 1986, 49 U.S.C. § 31311(a)(2) ( passage of knowledge and skills tests), (12) (domiciliary of state in which CDL is obtained ); id. § 391.11(b) ( ability to speak English sufficiently to u nderstand traffic signs, respond to official inquiries, and make entries on reports).3

pass ing the knowledge test, after which they made a ―down payment‖ to ITA and were given information regarding training for the CDL driving skills test. From 2006 to August 2010, ITA (or its predecessor company, Commercial Driver Center) assisted over 1,000 clients in obtaining Pennsylvania driver‘s licenses or CDLs, over half of whom
were out

- of

- state residents who obtained licenses using fraudulent residency information provided by I TA. The vast majority of these out

- of

- state licensees held active CDLs at the time of the Kroshnevs‘ sentencing. As ―president‖ and ―director‖ of ITA, respectively, Vitaliy and Tatyana were the organizers and leaders of the scheme ; in addition, they enli sted many others to help carry out their enterprise

. II. In August 2010, the Kroshnevs

— along with numerous co

- defendants

— wer e indicted for conspiracy to produce identification documents without lawful au thority , and aiding and abetting the same, in violat ion of 18 U.S.C. § 1028(a)(1) and (f). Vitaliy was also charged with making a false statement in violation of 18 U.S.C. § 1001 and, in a separate indictment returned in August 2011 , with conspiracy to defraud the United States in the adminis tration of its immigration laws in violation of 18 U.S.C. §§ 371 and
1546. The Kroshnevs pled guilty to these charges, and the indictments were consolidated for sentencing before Judge Norma L. Shapiro. At sentencing, Judge Shapiro followed the three

- step process outl ined in United
States v. Gunter , 462 F.3d 237 (3d Cir. 2006). 2 She first calculated the Kroshnevs‘

2 Gunter set out a three

- step process for district judges to follow when sentencing a defendant post

- United States v. Booker , 543 U.S. 220 (2005): (1) ―calculate a defend ant‘s4

advisory ranges under the United States Sentencing Guideline s (―Guidelines‖ or ―U.S.S.G.‖)

. 3 With an offense level of eight and criminal history category o f I, Tatyana‘s Guidelines‘ range was zero to six months‘ imprisonment. Vitaliy‘s offense level of ten and criminal history category I yielded a Guidelines‘ range of six to twelve months‘ imprisonment. The G overnment , however, at the second Gunter step, s ought an upward departure from the Guidelines‘ calculation for both Tatyana and Vitaliy on the basis of U.S.S.G. § 2B1.1 application note 19(A), which instructs that such a departure may be warranted when the ―guideline substantially understates the seriou sness of the offense

. ‖
T he Government alternatively requested that Judge Shapiro vary above the Guidelines‘
ranges at the third, and final, step of the sentencing process

. She agreed with the Government that the fact s warranted an upward departure and he ard argument from both parties before imposing sentence. In determining the extent of the departure, Judge Shapiro accepted the Government‘s suggestion of using U.S.S.G. § 2L2.1 by analogy; in contrast to the Guideline applicable to the Kroshnevs‘ fraud o ffense , which only includes enhancements for the number of ―victims‖ and amount of ―loss‖ caused by the fraud , § 2L2.1

— concerning trafficking in fraudulent immigration documents

— increases the offense level Guidelines sentence precisely as they would have before Booker ‖; (2) ―formally rul [ e ] on the motions of both parties and stat [ e ] on the record whether they are granting a departure and how that departure affects the Guidelines calculation‖; and (3) ― exercise [] [ their ] discretion by considering the relevant [ § 3553(a) ] factors in setting the sentence they impose.‖ 462 F.3d at 247 (alterations in original) (internal citations and quotation marks omitted). 3 Section 2B1.1(a)(2) provides the base offense level for fraud, which was supplemented by §§ 3B1.1 ( role as leader ) and 3E1.1 (acceptance of responsibility); Vitaliy‘s additional false statement offense was incorporat ed via the grouping rules in § 3D1 .2 (b)

.5

calculation based on the number of documents invol ved. The analogous enhancement to the Kroshnev s‘ conduct, an offense involving 100 or more documents, re sulted in a nine

level increase

. Applying the enhancement to the Kroshnevs ‘ fraud offense resulted in an offense level of 17 , and a corresponding Guid elines‘ advisory range of 24

– 30 months‘ imprisonment. At step three , Judge Shapiro concluded that a sentence at the bottom of the enhanced advisory range would be appropriate for Tatyana , and thus imposed a sentence of 24 months ‘ imprisonment

. Vitaliy wa s sentenced to 30 months‘ imprisonment , however, the difference stemming primarily from his additional crimes

. On appeal , both Tatyana and Vitaliy challenge the procedural and substantive reasonableness of their respective sentences. 4
III. We review dist rict courts‘ sentence s for procedural and substantive reasonableness under an abuse of discretion standard. Gall v. United States , 552 U.S. 38, 46 (2007) (citing Booker , 543 U.S. at 260

– 62)

. The burden rests on the challenging party to show unreasonablen ess , and we give due deference to the sentencing court ‘ s judgment. United States v. Cooper , 437 F.3d 324, 330

– 32 (3d Cir. 2006) , abrogated on other grounds , Kimbrough v. United States , 552 U.S. 85 (2007)

. In reviewing a sentence , we ― first ensure that th e district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the

4 The District Court had jurisdiction pursua nt to 18 U.S.C. § 3231. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 3742.6

Guidelines range, treating the Guidelines as manda tory, failing to consider the § 3553(a) factors, selecting a sentence based on clearl y erroneous facts, or failing to adequately explain the chosen sentence

— including an explanation for any deviation from the Guidelines range .‖ Gall , 552 U.S. at 51. If a sentence is procedurally sound, we then ―proceed to examine [its] substantive reason ableness

. ‖ United States v. Merced , 603 F.3d 203, 214 (3d Cir. 2010) (citing United States v. Ausburn , 502 F.3d 313, 328 (3d Cir. 2007)). ―  ̳ The touchstone of reasonableness is whether the record as a whole reflects rational and meaningful consideration o f the factors enumerated in § 3553(a). ‘ ‖ Id. (quoting United States v. Grier , 475 F.3d 556, 571 (3d Cir. 2007) (en banc) )

. The Kroshnevs assert that the District Court erred procedurally when imposing an upward departure at step two of the Gunter sentenc ing process . 5 While we have not set a bright line rule that district courts must follow in determining the extent of a permissible departure, we have approved ―analogic reasoning,‖ which permits th e sentencing court to consider G uidelines addressing conduc t analogous to that engaged in by a defendant

. See,
e.g. , United States v. Jacobs , 167 F.3d 792, 800 (3d Cir. 1999). Judge Shapiro used such reasoning, and did so appropriately

. She clearly articulated her reasoning for applying the § 2L2.1 enhancement t o the Kroshnevs‘ offense levels in calculating their Guidelines‘ ranges. She also explained that the number of identification documents obtained through the Kroshnevs‘ scheme was a relevant sentencing consideration and a reasonable measure of an upward de parture to reflect the magnitude and scope of their criminal conspiracy

. Moreover, Judge Shapiro correctly calculated the final Guidelines‘ range on the basis of

5 The Kroshnevs do not dispute the initial calculation of their advisory ranges at step one.7

the § 2L2.1 upward departure before imposing the Kroshnevs‘ respective sentences. Accordingl y, the upward departure s here are without procedural error

. 6
The Kroshnevs also challenge the substantive reasonableness of their sentences, alleging that Judge Shapiro did not give adequate consideration to the § 3553(a) factors at step three of the se ntencing process

. This argument fails as well

. The sentencing record makes clear that, having considered all ―colorable arguments‖ by both parties, Merced , 603 F.3d at 215, Judge Shapiro provided an adequate and reasonable basis for the sentences imposed that reflects meaningful consideration of the relevant sentencing factors. Specifically, she noted the Kroshnevs‘ roles as ringleaders in and financial gain from their criminal scheme. She also remarked on the serious harm that resulted from
their condu ct to public safety generally and to immigrants ( especially the Kroshnevs‘ co defendants, many of whom were likely to be removed as a result of their felony convictions )

. Also recognized was the need for deterrence, particularly in light of the Kroshnevs‘ professed lack of understanding as to the illegality of their activities. In addition , to avoid unwarranted sentencing disparities and to reflect the Kroshnevs‘
conduct as leaders of the scheme , Judge Shapiro determined that their sentences should be hig her than those of their co

- defendants

. And contrary to the Kroshnevs‘ contention,
their likelihood of removal did not receive ―short shrift‖; rather, Judge Shapiro

6 Appellants‘ reliance on United States v. Negroni , 638 F.3d 434 (3d Cir. 2011), and United States v. Grober , 624 F.3d 592 (3d Cir. 2010), is misplaced, as those cases dealt with the propriety of a variance, whereas here the Court elected to depart (and, in doing so, expressly indicated the Guidelines‘ range to which it departed).8

specifically addressed this factor but found that the enlisting of other immigrants and
exp osing them to removal aggravated , rath er than mitigated, their offenses

. * * * * * In sum, the Kroshnevs have not demonstrated procedural error on the part of the District Court nor met the burden for showing their sentences are substantively unreasonable, i.e. , that ―no reasonable sentencing court would have imposed the same
sentence on th [ e ] particular defendant [s] for the reasons the district court provided.‖ United States v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Accordingly, we affirm the sentences imposed

. 7

7 B ecause we conclude the Kroshnevs‘ sentences were procedurally and substantively reasonable on the basis of the upward departure, we do not reach the Government‘s alternative argument that the sentences were reasonable if viewed as variances.