13-4842-cr 

United States v. Shteyman 

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 “summary 

order”). A party citing a summary order must serve a copy of it on any party not represented by 

counsel.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 

2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 19th 3 day of May, two thousand fifteen. 

4 

5 PRESENT: 

6 RALPH K. WINTER,

7 CHESTER J. STRAUB, 

8 SUSAN L. CARNEY, 

9 Circuit Judges.

10 __________________________________________ 

11 

12 UNITED STATES OF AMERICA, 

13 

14 Appellee, 

15 

16 v. No. 13-4842-cr 

17 

18 DMITRY SHTEYMAN,

19 

20 Defendant-Appellant,

21 

22 ALEKSEY SHTEYMAN, MAXSIM SHVEDKIN, SARA

23 KALANTAROV, ILYA GERSHKOVICH, PELAGEYA

24 KOTELSKY, EVGENY GIL, YEFIM KORNFELD,

25 VALENTINA MUSHINSKAYA, SHELYA PINSKAYA, 

26 VLADMIR RUBIN, JESSE A. STOFF, M.D., BILLY N. 

27 GERIS, M.D., AND MARIA NAKHBO, 

28 

 Defendants.

* 29 

 

* The Clerk of Court is respectfully directed to amend the official caption to conform with the above. 
 

2 

1 __________________________________________

2 

3 FOR DEFENDANT-APPELLANT: MARTIN J. SIEGEL, New York, NY (Jillian 

4 S. Harrington, Monroe Township, NJ, on 

5 the brief). 

6 

7 FOR APPELLEE: SANGITA K. RAO, Attorney, Appellate 

8 Section, Criminal Division, U.S. 

9 Department of Justice, Washington, DC 

10 (Loretta E. Lynch, United States Attorney 

11 for the Eastern District of New York, 

12 Leslie R. Caldwell, Assistant Attorney 

13 General, Sung-Hee Suh, Deputy Assistant 

14 Attorney General, and Catherine Votaw 

15 and Ellen R. Meltzer, Attorneys, Fraud 

16 Section, Criminal Division, U.S. 

17 Department of Justice, on the brief). 

18 

19 Appeal from a judgment of the United States District Court for the Eastern District 

20 of New York (Johnson, J.). 

21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

22 ADJUDGED, AND DECREED that the judgment of the District Court entered on 

23 December 20, 2013, is AFFIRMED. 

24 Defendant-Appellant Dmitry Shteyman appeals from a judgment of the United States 

25 District Court for the Eastern District of New York (Johnson, J.) sentencing him to 97 

26 months’ imprisonment to be followed by a 3-year term of supervised release and ordering 

27 him to pay $1,489,909.40 in restitution to the Centers for Medicare & Medicaid Services. 

28 (Shteyman was separately ordered to forfeit $1,489,909.40 to the United States.) The 

29 sentence was based on Shteyman’s conviction, following a guilty plea, of conspiring to 

30 commit health care fraud, see 18 U.S.C. §§ 1347, 1349. On appeal, Shteyman contends that 

31 the District Court committed procedural and substantive error in imposing this sentence. 

32 We assume the parties’ familiarity with the underlying facts and the procedural history of the 

33 case, to which we refer only as necessary to explain our decision. 

34 In a sentencing appeal, “the role of the Court of Appeals is limited to examining a 

35 sentence for reasonableness, which is akin to review under an ‘abuse of discretion’ 
 

3 

1 standard.” United States v. Byors, 586 F.3d 222, 225 (2d Cir. 2009). “Reasonableness review 

2 involves consideration of both the length of the sentence (substantive reasonableness) and 

3 the procedures used to arrive at the sentence (procedural reasonableness).” United States v. 

4 Mazza-Alaluf, 621 F.3d 205, 213 (2d Cir. 2010) (internal quotation marks omitted). When a 

5 sentencing challenge was not raised in the district court, the challenge “will be deemed 

6 forfeited on appeal and addressed only upon a showing that the court committed plain 

7 error.” United States v. Coriaty, 300 F.3d 244, 252 (2d Cir. 2002) (internal quotation marks 

8 omitted). 

9 

10 I. Procedural Challenges 

11 When imposing sentence, a district court is required to consider a number of factors, 

12 including “the nature and circumstances of the offense and the history and characteristics of 

13 the defendant” and “the need to avoid unwarranted sentence disparities among defendants 

14 with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(1), 

15 (6). In addition, “[t]he court, at the time of sentencing, [must] state in open court the 

16 reasons for its imposition of the particular sentence . . . .” Id. § 3553(c). A court “errs 

17 procedurally if it does not consider the § 3553(a) factors” or “fails adequately to explain its 

18 chosen sentence.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). 

19 Shteyman contends that the District Court committed procedural error in both of these 

20 respects. Because Shteyman raises these arguments for the first time on appeal, we review 

21 for plain error. 

22 We “presume, in the absence of record evidence suggesting otherwise, that a 

23 sentencing judge has faithfully discharged h[is] duty to consider the statutory factors” laid 

24 out in 18 U.S.C. § 3553(a). Cavera, 550 F.3d at 193 (internal quotation marks omitted). 

25 Shteyman, focusing on § 3553(a)(6), attempts to rebut this presumption by pointing to the 

26 prison sentences of his co-defendants and the mean and median prison sentences for fraud 

27 in the Second Circuit and nationally in 2013, all of which were shorter than Shteyman’s 
 

4 

sentence.1 1 None of this evidence, however, demonstrates the existence of an unwarranted 

2 disparity and, in turn, a lack of consideration by the District Court: Section 3553(a)(6) “does 

3 not require a district court to consider disparities between co-defendants” at all. United States 

4 v. Frias, 521 F.3d 229, 236 (2d Cir. 2008). And the proffered statistics “provide no details 

5 underlying the sentences” and are thus “unreliable to determine unwarranted disparity.” 

6 United States v. Irving, 554 F.3d 64, 76 (2d Cir. 2009) (internal quotation marks omitted). In 

7 the absence of persuasive evidence of an unwarranted disparity or any other evidence that 

8 the court did not consider the need to avoid such disparities, Shteyman has failed to show 

9 that the court committed error, let alone plain error. 

10 Shteyman also suggests that the District Court committed procedural error by failing 

11 adequately to explain its chosen sentence in open court. Generally, “a brief statement of 

12 reasons will . . . suffice where the parties have addressed only straightforward, conceptually 

13 simple arguments to the sentencing judge.” Cavera, 550 F.3d at 193 (internal quotation 

14 marks omitted). In some cases, “the ‘open court’ requirement may be satisfied by the 

15 district court adopting the PSR in open court.” United States v. Molina, 356 F.3d 269, 277 (2d 

16 Cir. 2004). The arguments presented by the parties to the District Court here were 

17 straightforward and simple: the government focused on Shteyman’s leadership role in the 

18 scheme, while Shteyman’s counsel focused on Shteyman’s family circumstances, medical 

19 conditions, and pursuit of further studies while detained awaiting sentencing. Given the 

20 nature of the arguments before the court, the district judge did not plainly err by merely 

21 adopting the PSR in open court and stating generally that he was considering the § 3553(a) 

22 factors. 

23 

 

1 If Shteyman were “assert[ing] that the district court failed to accord the § 3553(a)(6) factor sufficient 

mitigating weight, he [would be] rais[ing] a substantive challenge.” Mazza-Alaluf, 621 F.3d at 214. Because 

Shteyman makes his argument within the rubric of procedural unreasonableness, we take him to be arguing 

that the District Court did not adequately consider the § 3553(a)(6) factor, rather than that the court did not 

accord the factor sufficient weight. We address Shteyman’s substantive challenges separately in Part II. 
 

5 

1 II. Substantive Challenges 

2 Shteyman also contends that his sentence was substantively unreasonable. In so 

3 doing, he points to a number of factors, including the District Court’s failure to reduce his 

4 offense level by a third point under U.S.S.G. § 3E1.1(b) based on his claimed extraordinary 

5 acceptance of responsibility.

6 To the extent that Shteyman contends that the court erred in its Guidelines 

7 calculation, this is really a procedural argument, see Cavera, 550 F.3d at 190, and it is without 

8 merit. A government motion is “a necessary prerequisite” to a court’s reducing an offense 

9 level by a third point under U.S.S.G. § 3E1.1(b) unless the government has acted in bad faith 

10 with respect to a plea agreement or has refused to move for the reduction based on an 

11 unconstitutional motive. United States v. Lee, 653 F.3d 170, 173 (2d Cir. 2011) (internal 

12 quotation marks omitted). Here, the government never moved for the reduction and 

13 Shteyman does not argue that either exception applies. In this posture, the District Court 

14 was without power to award the third point and thus did not err in declining to do so. 

15 None of Shteyman’s truly substantive arguments has merit, either. Substantive 

16 reasonableness review “provide[s] a backstop for those few cases that, although procedurally 

17 correct, would nonetheless damage the administration of justice because the sentence 

18 imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of 

19 law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Shteyman points to his 

20 cooperation with the government, his acceptance of responsibility, his medical conditions, 

21 his parents’ ill health, the nature of his past crimes, the volume of supportive letters 

22 submitted on his behalf, his pursuit of further studies, and his co-defendants’ lesser 

23 sentences as reasons for concluding that his sentence was substantively unreasonable. But 

24 these factors do not demonstrate that his sentence was shockingly high or unsupportable as 

25 a matter of law, particularly when considered in light of Shteyman’s leading role in the 

26 multimillion-dollar conspiracy to defraud the federal government and evidence that 

27 Shteyman was not fully honest with the government in the course of his promised 

28 cooperation. 
 

6 

1 * * * 

2 We have considered Shteyman’s remaining arguments and find them to be without 

3 merit. For the reasons set out above, we AFFIRM the judgment of the District Court. 

4 

5 FOR THE COURT: 

6 Catherine O’Hagan Wolfe, Clerk of Court