13-4842-cr United States v. Shteyman

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not ha ve 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 (wit h the notation “summary order”). A party citing 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 Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 19 th day of May, two thousand fifteen. 3
4 PRESENT: 5 R ALPH K. W INTER , 6 C HESTER J. S TRAUB , 7 S USAN L. C ARNEY , 8 Circuit Judges

. 9

_____________ _______________ ______________ 10
11 U NITED S TATES OF A MERICA , 12
13 Appellee
, 14
15 v. No. 13-4842-cr 16
17 D MITRY S HTEYMAN , 18
19 Defendant-Appellant
, 20
21 A LEKSEY S HTEYMAN , M AXSIM S HVEDKIN , S ARA 22 K ALANTAROV , I LYA G ERSHKOVICH , P ELAGEYA 23 K OTELSKY , E VGENY G IL , Y EFIM K ORNFELD , 24 V ALENTINA M USHINSKAYA , S HELYA P INSKAYA , 25 V LADMIR R UBIN , J ESSE A. S TOFF , M.D., B ILLY N. 26 G ERIS , M.D., AND M ARIA N AKHBO , 27
28 Defendants

. * 29

* The Clerk of Court is respectfully directed to amen d the official caption to conform with the above.2 _____________ _______________ ______________ 1
2 FOR DEFENDANT-APPELLANT: M ARTIN J. S IEGEL , New York, NY (Jillian 3 S. Harrington, Monroe Township, NJ, on 4 the brief ). 5
6 FOR APPELLEE: S ANGITA K. R AO , Attorney, Appellate 7 Section, Criminal Division, U.S. 8 Department of Justice, Washington, DC 9 (Loretta E. Lynch, United States Attorney 10 for the Eastern District of New York, 11 Leslie R. Caldwell, Assistant Attorney 12 General, Sung-Hee Suh, Deputy Assistant 13 Attorney General, and Catherine Votaw 14 and Ellen R. Meltzer, Attorneys, Fraud 15 Section, Criminal Division, U.S. 16 Department of Justice, on the brief ). 17
18 Appeal from a judgment of the United Stat es District Court for the Eastern District 19 of New York (Johnson, J. ). 20
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 21 ADJUDGED, AND DECREED that the judgment of the District Court entered on 22 December 20, 2013, is AFFIRMED

. 23
Defendant-Appellant Dmitry Shteyman appeals from a judgment of the United States 24
District Court for the Eastern Di strict of New York (Johnson, J. ) sentencing him to 97 25 months’ imprisonment to be followed by a 3-yea r term of supervised release and ordering 26 him to pay $1,489,909.40 in restitution to the Centers for Medicare & Medicaid Services. 27 (Shteyman was separately ordered to forfeit $1,489,909.40 to the United States.) The 28 sentence was based on Shteyman’s conviction, following a guilty plea, of conspiring to 29 commit health care fraud, see 18 U.S.C. §§ 1347, 1349. On a ppeal, Shteyman contends that 30 the District Court committed procedural and subs tantive error in imposing this sentence. 31 We assume the parties’ familiarity with the underlying facts and the procedural history of the 32 case, to which we refer only as n ecessary to explain our decision. 33
In a sentencing appeal, “the role of the Court of Appeals is limited to examining a 34 sentence for reasonableness, which is akin to review under an ‘abuse of discretion’ 353 standard.” United States v. Byors , 586 F.3d 222, 225 (2d Cir. 200 9). “Reasonableness review 1 involves consideration of both the length of the sentence (substantive reasonableness) and 2 the procedures used to arrive at the sentence (procedural reasonableness).” United States v. 3 Mazza-Alaluf , 621 F.3d 205, 213 (2d Cir. 2010) (inter nal quotation marks omitted). When a 4 sentencing challenge was not raised in the di strict court, the challenge “will be deemed 5 forfeited on appeal and addr essed only upon a showing that the court committed plain 6
error.” United States v. Coriaty , 300 F.3d 244, 252 (2d Cir. 2002) (internal quotation marks 7 omitted). 8

9

I. Procedural Challenges 10
When imposing sentence, a district court is re quired to consider a number of factors, 11 including “the nature and circumstances of the offense and the history and characteristics of 12
the defendant” and “the need to avoid unwa rranted sentence disparities among defendants 13 with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(1), 14 (6). In addition, “[t]he cour t, at the time of sentencing, [must] state in open court the 15 reasons for its imposition of the particular sentence . . . .” Id. § 3553(c). A court “errs 16 procedurally if it does not consider the § 3553(a) factors” or “fails adequately to explain its 17
chosen sentence.” United States v. Cavera , 550 F.3d 180, 190 (2d Cir. 2008) (en banc). 18 Shteyman contends that the District Court committed procedural erro r in both of these 19 respects. Because Shteyman ra ises these arguments for the first time on appeal, we review 20 for plain error. 21
We “presume, in the absence of record evidence suggesting otherwise, that a 22 sentencing judge has faithfully discharged h[is] duty to consider the statutory factors” laid 23 out in 18 U.S.C. § 3553(a). Cavera , 550 F.3d at 193 (internal quotation marks omitted). 24 Shteyman, focusing on § 3553(a)(6), attempts to rebut this presumption by pointing to the 25 prison sentences of his co-defendants and the mean and median prison sentences for fraud 26 in the Second Circuit and nationally in 2013, all of which were shorter than Shteyman’s 274 sentence. 1 None of this evidence, however, demons trates the existence of an unwarranted 1 disparity and, in turn, a lack of consideration by the District Court: Section 3553(a)(6) “does 2 not require a district court to consider di sparities between co-defendants” at all. United States 3
v. Frias , 521 F.3d 229, 236 (2d Cir. 2008). And th e proffered statistics “provide no details 4 underlying the sentences” and are thus “unre liable to determine unwarranted disparity.” 5 United States v. Irving , 554 F.3d 64, 76 (2d Cir. 2009) (internal quotation marks omitted). In 6 the absence of persuasive evidence of an unwa rranted disparity or any other evidence that 7
the court did not consider the need to avoid su ch disparities, Shteyman has failed to show 8
that the court committed erro r, let alone plain error. 9
Shteyman also suggests that the District Court committed procedural error by failing 10 adequately to explain its chosen sentence in open court. Generally, “a brief statement of 11 reasons will . . . suffice where the parties have addressed only straightforward, conceptually 12 simple arguments to the sentencing judge.” Cavera , 550 F.3d at 193 (internal quotation 13 marks omitted). In some cases, “the ‘ope n court’ requirement may be satisfied by the 14 district court adopting th e PSR in open court.” United States v. Molina , 356 F.3d 269, 277 (2d 15 Cir. 2004). The arguments presented by the parties to the District Court here were 16 straightforward and simple: the government fo cused on Shteyman’s leadership role in the 17 scheme, while Shteyman’s counsel focused on Shteyman’s family circumstances, medical 18 conditions, and pursuit of further studies while detained awaiting sentencing. Given the 19 nature of the arguments before the court, the district judge did not plainly err by merely 20 adopting the PSR in open court and stating gene rally that he was considering the § 3553(a) 21
factors. 22

23

1 If Shteyman were “assert[ing] th at the district court failed to ac cord 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 II. Substantive Challenges 1
Shteyman also contends that his sentence was substantively unreasonable. In so 2 doing, he points to a number of factors, incl uding the District Court’s failure to reduce his 3 offense level by a third point under U.S.S.G. § 3E1.1(b) base d on his claimed extraordinary 4 acceptance of responsibility. 5
To the extent that Shteyman contends that the court erred in its Guidelines 6 calculation, this is really a procedural argument, see Cavera , 550 F.3d at 190, and it is without 7 merit. A government motion is “a necessary pr erequisite” to a court’s reducing an offense 8 level by a third point under U.S. S.G. § 3E1.1(b) unless the gove rnment has acted in bad faith 9 with respect to a plea agreement or has refu sed to move for the reduction based on an 10
unconstitutional motive. United States v. Lee , 653 F.3d 170, 173 (2d Cir. 2011) (internal 11 quotation marks omitted). Here, the govern ment never moved for the reduction and 12 Shteyman does not argue that either exception ap plies. In this posture, the District Court 13 was without power to award the third point an d thus did not err in declining to do so. 14
None of Shteyman’s truly substantive ar guments has merit, either. Substantive 15 reasonableness review “provide[s] a backstop for those few cases that, although procedurally 16 correct, would nonetheless damage the admi nistration of justice because the sentence 17 imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of 18
law.” United States v. Rigas , 583 F.3d 108, 123 (2d Cir. 200 9). Shteyman points to his 19 cooperation with the government, his acceptance of responsibility, hi s medical conditions, 20 his parents’ ill health, the nature of his p ast crimes, the volume of supportive letters 21 submitted on his behalf, his pursuit of furt her studies, and his co-defendants’ lesser 22 sentences as reasons for concluding that his sentence was substantively unreasonable. But 23
these factors do not demonstrate that his sent ence was shockingly high or unsupportable as 24 a matter of law, particularly when considered in light of Shteyman’s leading role in the 25 multimillion-dollar conspiracy to defraud th e federal government and evidence that 26 Shteyman was not fully honest with the gove rnment in the course of his promised 27 cooperation. 286 * * * 1
We have considered Shteyman’s remainin g arguments and find them to be without 2 merit. For the reasons set out above, we AFFIRM the judgment of the District Court. 3

4

FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court 6