UNITED STATES of America, Appellee, v. Aleksey VOLYNSKIY, Defendant-Appellant.
No. 10-1523-cr.
United States Court of Appeals, Second Circuit.
April 20, 2011.
Seetha Ramachandran (Katherine Polk Failla, on the brief), Assistant United States Attorneys, of Counsel, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
PRESENT: JOSEPH M. McLAUGHLIN, REENA RAGGI, PETER W. HALL, Circuit Judges.
SUMMARY ORDER
Defendant Aleksey Volynskiy stands convicted on pleas of guilty to one count each of (1) conspiracy to commit wire fraud and to intentionally damage and access a protected computer for personal gain, see
1. Procedural Error
a. Total Loss Amount
Volynskiy submits that the district court miscalculated the total loss amount applicable to his Guidelines range by $90,000—based on $500 for each of 180 credit card numbers Volynskiy provided to a cooperating witness. See
Assuming, arguendo, that Volynskiy did not waive this argument by declining to request a hearing as to loss amount, see United States v. Quinones, 511 F.3d 289, 321 (2d Cir.2007), we identify no clear error in the district court‘s factual finding as to Volynskiy‘s intent, see United States v. Uddin, 551 F.3d 176, 180 (2d Cir.), cert. denied, — U.S. —, 129 S.Ct. 2886, 174 L.Ed.2d 581 (2009). Even if Volynskiy could not use the counterfeit cards without PIN numbers, such fraudulent use was clearly his ultimate intent. Indeed, Volynskiy stated that he understood that co-conspirators could obtain access numbers. Moreover, the impossibility of Volynskiy using the credit cards fraudulently because he was unknowingly dealing with a cooperator is immaterial; intended loss includes harm “that would have been impossible or unlikely to occur.”
In any event, the alleged error is harmless because even without the disputed $90,000, the total loss amount exceeded $200,000, the amount triggering a two-level enhancement under
b. Authority to Impose a Non-Guidelines Sentence
Volynskiy next contends that the district court misapprehended its authority to depart or impose a non-Guidelines sentence based on various grounds. See United States v. Sanchez, 517 F.3d 651, 661 (2d Cir.2008) (error in determining authority to vary from Guidelines may be procedurally unreasonable). We must “presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged his duty to consider the statutory factors enumerated in
In urging otherwise, Volynskiy submits that the district court mistakenly thought double-counting was required for it to depart based on the enhancement for trafficking unauthorized credit cards, see
Volynskiy next contends that the district court misapprehended its sentencing discretion because it “failed to appreciate” the extraordinary immigration consequences Volynskiy faces, namely, separation from his family, detention in an immigration facility after imprisonment, and potential statelessness if Russia and Ukraine deny him citizenship. Appellant‘s Br. at 24; see United States v. Restrepo, 999 F.2d 640, 643-44 (2d Cir.1993) (leaving open in pre-Booker context whether extraordinary immigration consequences warrant departure); see also Kimbrough v. United States, 552 U.S. 85, 107-08 (2007); United States v. Cavera, 550 F.3d at 191 (noting that “a district court may vary from the Guidelines range based solely on a policy disagreement with the Guidelines” affecting many offenders). We disagree. Even if the district court did not expressly reference each consequence, it addressed Volynskiy‘s immigration status at sentence and found his collateral consequences common among aliens in criminal cases. See United States v. Fernandez, 443 F.3d at 34 (declining to require specific articulation by district court to demonstrate understanding of sentencing authority). To the extent this reduces Volynskiy‘s argument to a complaint about the weight the district court assigned his immigration consequences, we identify neither procedural error nor an abuse of discretion. See United States v. Mazza-Alaluf, 621 F.3d 205, 214 (2d Cir.2010) (noting “considerable deference” given to district court “in assigning weight to relevant sentencing factors“).
The same conclusion obtains with respect to Volynskiy‘s charge that the district court failed to make an individualized sentencing determination because the court did not assign greater weight to the factors Volynskiy identifies on appeal. See Kimbrough v. United States, 552 U.S. at 111; United States v. Verkhoglyad, 516 F.3d 122, 131-32 (2d Cir.2008) (identifying no procedural error when district court “possessed ample information to assess” defendant‘s personal characteristics and appeared to view them favorably). As a result, we identify no procedural unreasonableness in Volynskiy‘s sentence.
2. Substantive Unreasonableness
Volynskiy submits that his sentence is substantively unreasonable because it fails adequately to account for his youth, rehabilitation, attempt to cooperate, and eventual deportation. Volynskiy further submits that the district court placed undue weight on the need for general deterrence. We will “set aside a district court‘s substantive determination only in
In imposing a sentence at the low end of the Guidelines range, the experienced district judge expressly considered the factors cited by Volynskiy. He nevertheless declined to impose a non-Guidelines sentence because of the serious nature of Volynskiy‘s crimes, his important role and long involvement in the scheme, and the need for general deterrence of international hackers. On this record, the district court acted well within its “considerable sentencing discretion” in imposing the challenged term of incarceration. United States v. Jones, 531 F.3d 163, 174 (2d Cir.2008). Accordingly, we reject Volynskiy‘s substantive challenge as without merit.
3. Conclusion
We have considered Volynskiy‘s other arguments on appeal and conclude that they are without merit. Accordingly, we AFFIRM the judgment of conviction.