United States v. Volynskiy, 431 F. App'x 8

Volynskiy pled guilty to conspiracy to commit wire fraud and to damage/access a protected computer, money laundering, and three counts of access device fraud.
The district court sentenced Volynskiy to 37 months, at the low end of a 37–46 month Guidelines range.
Volynskiy challenges the calculation of total loss used for the Guidelines range and the court’s authority to impose a non-Guidelines sentence.
The court considered arguments about immigration consequences and potential deportation as factors at sentencing.
The court expressly stated it weighed relevant sentencing factors and concluded a non-Guidelines sentence was not warranted.
The government agreed restitution/forfeiture relied on actual losses; the district court ordered $30,000 restitution and forfeiture.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Loss calculation accuracy	United States argues loss totaled over $200,000; $90,000 disputed.	Volynskiy contends loss calculation overstates intended loss due to lack of PINs.	No reversible error; loss finding supported; harmless even excluding disputed amount.
Authority to depart from Guidelines	United States argues district court correctly exercised departure authority.	Volynskiy claims misapprehension of authority to depart.	Presumption of proper authority; no clear error that the court misunderstood its departure power.
Immigration consequences as basis for departure	United States allowed to consider immigration impacts in sentencing.	Volynskiy contends extraordinary immigration consequences warrant departure.	No procedural error; district court did address immigration status and weighed it; no undue weight error.
Individualized sentencing determination	Court properly weighed Volynskiy’s characteristics and circumstances.	Court failed to give greater weight to certain personal factors on appeal.	No procedural error; court had ample information and acted within discretion.
Substantive reasonableness	Low-end sentence insufficiently accounts for youth/rehabilitation and deportation risk.	Sentence reflects seriousness of crimes and general deterrence; reasonable.	Sentence within the range of permissible decisions; not substantively unreasonable.

United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (reasonableness review akin to abuse of discretion; substantial discretion at sentencing)
United States v. Canova, 485 F.3d 674 (2d Cir. 2007) (considering both substantive and procedural reasonableness)
United States v. Quinones, 511 F.3d 289 (2d Cir. 2007) (waiver and loss-amount considerations in sentencing challenges)
United States v. Uddin, 551 F.3d 176 (2d Cir. 2010) (intent and loss calculations provisions)
United States v. Restrepo, 999 F.2d 640 (2d Cir. 1993) (immigration consequences in sentencing considerations)
Kimbrough v. United States, 552 U.S. 85 (2007) (policy disagreement with Guidelines as basis to vary)
United States v. Mazza-Alaluf, 621 F.3d 205 (2d Cir. 2010) (deference to district court in weighing sentencing factors)
United States v. Jones, 531 F.3d 163 (2d Cir. 2008) (considerable discretion in sentencing decisions)
United States v. Ravelo, 370 F.3d 266 (2d Cir. 2004) (loss calculation principles for intended loss)
United States v. Glick, 142 F.3d 520 (2d Cir. 1998) (guidelines enhancements and loss considerations)
United States v. Parker, 577 F.3d 143 (2d Cir. 2009) (scope of reasonable sentences within guidelines range)