IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30384

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SERGEY TOROPKIN,

Defendant-Appellant

Cons. w/No. 12-30388

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KRISTINA RUCHKINA,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 2:11-CR-220-3

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

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.

United States Court of Appeals

Fifth Circuit

F I L E D

March 21, 2013

Lyle W. Cayce

Clerk
No. 12-30384

c/w No. 12-30388

* 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.

R. 47.5.4.

2

PER CURIAM:*

Sergey Toropkin and Kristina Ruchkina appeal the sentences imposed

following their guilty plea convictions for conspiring to commit bank fraud in

violation of 18 U.S.C. §§ 371 and 1344(2). 

Ruchkina contends that her above-guidelines sentence is substantively

unreasonable because it was based on the potential impact ofthe offense conduct

on the corporate victim and the district court’s belief that restitution would

never be made. The parties have advised the court that Ruchkina has completed

her term of imprisonment and has been removed to Russia. For that reason, her

appeal is moot. See United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th

Cir. 2007). 

Toropkin contends that his above-guidelines sentence is procedurally

unreasonable because the district court failed to meaningfully consider the 18

U.S.C. § 3553(a) factors and provide sufficient justification for the chosen

sentence. Because he failed to object on these grounds in the district court, we

review for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357,

361 (5th Cir. 2009). 

The sentencing record reflects that the district court considered the

§ 3553(a) factors and sufficiently articulated its reasons for imposing the

above-guidelines sentence. Although the district court did not list the relevant

§ 3553(a) factors at sentencing, the court explicitly stated that it had considered

those factors in determining the particular sentence to be imposed. See United

States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (holding that a checklist

recitation of the § 3553(a) factors is neither necessary nor sufficient for a

non-guidelines sentence to be reasonable). The district court noted that
No. 12-30384

c/w No. 12-30388

3

Toropkin was subject to a statutory maximum of five years of imprisonment and

a guidelines imprisonment range of zero to six months. The district court heard

the parties’ recommendations that he be sentenced within the guidelines range

with credit for time served. The district court also heard counsel’s arguments

in mitigation of punishment, including that Toropkin had no criminal record in

the United States or Russia, that he was one year away from graduating from

college, that he was very sorry for his actions, and that he had cooperated with

the Government. Despite Toropkin’s youth, lack of criminal history, and minor

role in the larger conspiracy, the district court determined that he was a

necessary player, that he took advantage ofthe opportunities afforded to him by

the United States and its citizens, that restitution would likely never be made,

and that a sentence to time served would amount to a “free ticket home.” The

district court also adopted the sentiments expressed by the owner of the

corporate victim, including the impact of Toropkin’s actions on the company and

the need to send a strong message of deterrence. Because the district court

considered the § 3553(a) factors and sufficiently articulated its reasons for

imposing the above-guidelines sentence, Toropkin has shown no error, plain or

otherwise. See United States v. Key, 599 F.3d 469, 474 (5th Cir. 2010).

Toropkin also contends his above-guidelines sentence is substantively

unreasonable because (1) the sentence failed to account for the nature and

circumstances of the offense, his history and characteristics, and the applicable

guidelines range; (2)the district court improperly considered his inability to pay

restitution as an aggravating factor warranting an upward variance; and (3)the

sentence represented a clear error of judgment in balancing the sentencing

factors. We review the substantive reasonableness of a sentence under a

deferential abuse of discretion standard, taking into account the totality of the

circumstances. Id. at 475.
No. 12-30384

c/w No. 12-30388

4

The sentencing record reflects that the district court considered the

applicable guidelines range as well as Toropkin’s youth, lack of criminal history,

minor role in the larger conspiracy, remorse, and cooperation with the

Government. The district court made an individualized assessment and

concluded that despite the parties’ recommendations, a sentence within the

guidelines range with credit for time served was not appropriate. After taking

into account the Sentencing Guidelines, the seriousness of Toropkin’s actions,

his lack of criminal history, and the other § 3553(a) factors, the district court

sentenced him to two years of imprisonment. Although Toropkin notes that the

corporate victim’s loss was taken into account by the Guidelines, the district

court was not precluded from considering factors already incorporated into the

guidelines calculation. See United States v. Brantley, 537 F.3d 347, 350 (5th Cir.

2008). Further, although district courts may not take into account a defendant’s

socio-economic status when imposing sentence, United States v. Humphrey, 104

F.3d 65, 71 (5th Cir. 1997); U.S.S.G. § 5H1.10, the sentencing record does not

reflect that the district court sentenced Toropkin to a longer term of

imprisonment because he owed restitution that he could not afford to pay.

Instead, the sentencing record reflects that the district court’s focus was on the

corporate victim’s ability to collect the restitution once Toropkin is removed to

Russia. 

Our examination of the record and of the totality of the circumstances

satisfies us that the district court properly relied on the § 3553(a) factors in

deciding to impose an upward variance and in determining the extent of that

variance. See Brantley, 537 F.3d at 349. Toropkin has therefore failed to show

that his sentence is substantively unreasonable.

Accordingly, with regard to Case No. 12-30384,the judgment of the district

court is AFFIRMED, and with regard to Case No. 12-30388, the appeal is

DISMISSED AS MOOT.