607 F. App'x 8
2d Cir.2015Background
- Defendants Vadim Trincher and Anatoly Golubchik pleaded guilty to participating in a RICO conspiracy that involved operating an illegal, high‑stakes gambling business and laundering its proceeds; each was sentenced to 60 months’ imprisonment.
- From ~2006–2013 they ran a transnational gambling operation under protection of a high‑level criminal figure; they placed bets in New York for bettors primarily in Russia/Ukraine and laundered profits through Cyprus and U.S. shell companies.
- Approximately $100 million in gambling profits were laundered through the operation.
- The plea agreements stipulated a stipulated Guidelines range (21–27 months) and prohibited either party from seeking Guidelines departures, but expressly permitted either party to seek sentences outside that range based on 18 U.S.C. § 3553(a) and to respond to court inquiries about different Guidelines calculations.
- On appeal defendants challenged: (1) Government breach of the plea agreements by arguing leadership and that Guidelines understated seriousness; (2) the district court’s upward departure/variance; and (3) application of the § 3B1.1(a) leadership enhancement to Trincher.
Issues
| Issue | Government's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Whether the Government breached plea agreements by arguing leadership enhancement and that Guidelines understated offense | Allowed by plea agreements to seek outside‑range sentence under § 3553(a) and to respond to court inquiries; described defendants as leaders as relevant § 3553(a) argument | Gov’t statements advocating leadership enhancement and seriousness of offense breached the plea agreements' Guidelines stipulation | No breach: Government’s remarks were permissible under plea agreements and often responsive to court inquiry |
| Whether the district court erred in upwardly departing/varied because Guidelines covered the “heartland” | Court correctly considered that Guidelines understated seriousness given the scale/sophistication and disparity with lesser‑culpable co‑defendants; departure/variance appropriate under § 5K2.0 and § 3553(a) | Departure/variance was improper because case falls within Guidelines’ heartland and departure was unwarranted | Affirmed: court need not decide departure vs variance because sentence would be same; in any event departure/variance was reasonable and not an abuse of discretion |
| Whether applying the § 3B1.1(a) leader/organizer enhancement to Trincher was improper because alleged participants acted abroad | Gov’t: foreign bookmakers were participants whose conduct was inextricably tied to U.S. offenses and properly counted for the enhancement | Trincher: those bookies acted solely abroad and thus were not “criminally responsible” participants for Guidelines enhancement | Affirmed: foreign actors tied to and indispensable to the U.S. conspiracy are “participants” and enhancement properly applied |
| Whether sentencing disparity with third‑party launderers showed improper calculation under money‑laundering Guidelines | Gov’t: Guidelines do not fully account for severity of laundering by principals who also ran underlying criminal activity; § 3553(a) factors justify above‑Guidelines sentence | Defendants: Guidelines already account for underlying offense; departure/variance unjustified and inconsistent with Commission’s intent | Affirmed: district court reasonably found Guidelines produced anomalous and inadequate results in this atypical, large‑scale operation and imposed a justified upward sentence |
Key Cases Cited
- United States v. Riera, 298 F.3d 128 (2d Cir.) (three‑part test for review of Guidelines departure)
- United States v. Vaval, 404 F.3d 144 (2d Cir.) (permitted government sentencing submissions consistent with plea agreements)
- United States v. Larkin, 629 F.3d 177 (3d Cir.) (government may argue non‑Guidelines factors reflecting offense seriousness under § 3553(a))
- United States v. Dawn, 129 F.3d 878 (7th Cir.) (foreign conduct that produces domestic offense may be considered in sentencing)
- United States v. Farouil, 124 F.3d 838 (7th Cir.) (foreign co‑actor conduct tied to importation can be attributed to defendant for sentencing)
- United States v. Zayas, 758 F.3d 986 (8th Cir.) (agreeing with approach of considering foreign conduct closely tied to domestic offense)
- United States v. Castro‑Valenzuela, [citation="304 F. App'x 986"] (3d Cir.) (foreign conduct used to individualize sentence within range)
- United States v. Azeem, 946 F.2d 13 (2d Cir.) (distinguishing foreign transactions that are not crimes against the U.S. from those that are relevant to sentencing)