13-3151-cr (L)
United States v. Khandrius, Shelikhova

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE 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 (WITH 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 Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
26th day of May, two thousand fifteen.

Present:    PIERRE N. LEVAL,
            ROSEMARY S. POOLER,
                  Circuit Judges,
            J. GARVAN MURTHA,1
                  District Judge.
_____________________________________________________

UNITED STATES OF AMERICA,

                                  Appellee,

                          v.                                          13-3151-cr(L),
                                                                      13-4594-cr(Con)

YURI KHANDRIUS, IRINA SHELIKHOVA,

                        Defendants-Appellants.2
_____________________________________________________

Appearing for Appellants:         Elkan Abramowitz, Morvillo Abramowitz Grand Iason & Anello
                                  P.C. (Lawrence S. Bader, Eric M. Ruben, on the brief), New York,
                                  N.Y., for Defendant-Appellant Khandrius.


        1
       The Honorable, J. Garvan Murtha, United States District Court for the District of
Vermont, sitting by designation.
        2
            The Clerk of Court is directed to amend the caption as above.
                              Randolph Z. Volkell, Merrick, N.Y., for Defendant-Appellant
                              Shelikhova.

Appearing for Appellee:       Sarah M. Hall, Trial Attorney (David C. James, Assistant U.S.
                              Attorney, Loretta E. Lynch, U.S. Attorney for the Eastern District
                              of New York, on the brief), Brooklyn, N.Y., in the appeal of
                              Defendant-Appellant Khandrius.

                              Susan Corkery, Assistant U.S. Attorney (Loretta E. Lynch, U.S.
                              Attorney for the Eastern District of New York, on the brief),
                              Brooklyn, N.Y., in the appeal of Defendant-Appellant Shelikhova.

Appeal from the United States District Court for the Eastern District of New York (Gershon, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court as to Defendant-Appellant Khandrius
be and it hereby is VACATED and the case is REMANDED for resentencing. Attorney
Randolph Z. Volkell’s motion, pursuant to Anders v. California, 386 U.S. 738 (1967), to
withdraw from his representation of Defendant-Appellant Shelikhova is GRANTED, and the
government’s motion to dismiss Shelikhova’s appeal is GRANTED.

        Defendant-Appellant Yuri Khandrius appeals from the August 9, 2013 judgment of
conviction entered by the United States District Court for the Eastern District of New York
(Gershon, J.), which principally sentenced him to 96 months’ imprisonment. Khandrius pleaded
guilty to one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349,
one count of conspiracy to pay health care kickbacks, in violation of 18 U.S.C. § 371, and one
count of health care fraud, in violation of 18 U.S.C. § 1347.

         Defendant-Appellant Irina Shelikhova pleaded guilty, under a plea agreement, to one
count of conspiracy to commit money laundering, in violation of 18 U.S.C. 1956(h), under the
same superseding indictment charging Khandrius. In its November 22, 2013 judgment, the
district court principally sentenced Shelikhova to 180 months’ imprisonment. Randolph Z.
Volkell, Shelikhova’s appellate counsel appointed under the Criminal Justice Act, has filed an
Anders motion seeking permission to withdraw as counsel, to which Shelikhova responded pro
se. The government has moved to dismiss the appeal based on Shelikhova’s waiver of her
appellate rights.

        We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

Khandrius’s Appeal

I. Studley
        We review criminal sentences for procedural reasonableness under an abuse of discretion
standard. United States v. Chu, 714 F.3d 742, 746–47 (2d Cir. 2013). “A district court commits

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procedural error where it fails to calculate (or improperly calculates) the Sentencing Guidelines
range . . . .” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012). “The district court’s
interpretation of the Guidelines is a question of law, which we review de novo. As to the facts
that support the application of a Guideline, the burden of proving such facts is on the
government, the standard for proving such facts is a preponderance of the evidence, and we
review the district court’s factual conclusions for clear error.” United States v. Archer, 671 F.3d
149, 161 (2d Cir. 2011) (internal citation omitted).

         Under the Guidelines, relevant conduct of co-conspirators may be considered by the
sentencing court. See U.S.S.G. § 1B1.3(a)(1)(B). In order to hold the defendant accountable for
jointly undertaken criminal activity, the district court must make two particularized findings: “1)
that the acts were within the scope of the defendant’s agreement and 2) that they were
foreseeable to the defendant.” United States v. Studley, 47 F.3d 569, 574 (2d Cir. 1995). In
Studley we identified several factors relevant to determining the scope of the defendant’s
agreement: (1) “whether the participants pool[ed] their profits and resources, or whether they
work[ed] independently”; (2) “whether the defendant assisted in designing and executing the
illegal scheme”; and (3) “what role the defendant agreed to play in the operation, either by an
explicit agreement or implicitly by his conduct.” Id. at 575.

        The district court asserted a finding that Khandrius’s conduct evidenced an implicit
agreement sufficiently broad to include all of the conspiracy’s activities. Relying principally on
Khandrius’s awareness of the scope of the conspiracy and his interest in being paid by the clinic,
the district court concluded that the entire intended loss amount, nearly $77.5 million in
fraudulent Medicare billing, was properly attributable to Khandrius under the Guidelines. We
disagree.

        The findings of the district court are insufficient to satisfy the first of the Studley prongs.
For instance, the court noted that Khandrius played “a big role” in the scheme, including by
posing as a doctor and failing to correct individuals who erroneously identified him as such. But
to whatever extent the clinic’s fraudulent billing depended on Khandrius’s impersonation of Dr.
Drivas, even important participation in one aspect of a conspiracy with awareness of others does
not necessarily establish responsibility for the whole of the conspiracy’s activities. “[T]he scope
of conduct for which a defendant can be held accountable under the sentencing guidelines is
significantly narrower than the conduct embraced by the law of conspiracy.” United States v.
Getto, 729 F.3d 221, 234 n.11 (2d Cir. 2013) (internal quotation marks omitted). In addition, the
court gave undue weight to Khandrius’s knowledge of the fraud, including his awareness that a
suspiciously high volume of patients passed through the clinic and that some patients received
cash kickbacks. But as we have emphasized, neither “knowledge of another participant’s
criminal acts,” nor “aware[ness] of the scope of the overall operation” alone is enough to deem
the defendant responsible for the acts of co-conspirators. Studley, 47 F.3d at 575. Finally, the
court determined that Khandrius expanded the variety of diagnostic tests he conducted in order
to increase his compensation. Khandrius was not paid on a commission basis. As in Studley,
there is no indication here that Khandrius’s pay “was directly tied to the activities of the other
[conspirators],” id., nor that he “shared in the profits” of the overall operation, id. at 572
(emphasis added). That Khandrius was paid as a clinic employee is insufficient to establish that
the entire scope of the scheme orchestrated by his employers fell within his agreement.

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         Nor does our review of the record reveal sufficient evidence to support a particularized
finding that Khandrius’s agreement to participate in this conspiracy encompassed the whole of
its activities.

        The government contends that Khandrius bore the burden to prove that the fraud loss
caused by the conspiracy fell outside the scope of his agreement. We find this argument
unavailing. The case cited by the government in support of its contention, United States v.
Negron, 967 F.2d 68, 72 (2d Cir. 1992), stands only for the proposition that the defendant carries
the burden with respect to the second Studley prong—the foreseeability of co-conspirators’
conduct—which is not at issue on this appeal. In addition, a 1992 amendment to the Guidelines,
removing language from the commentary on which the Negron court relied, erodes that holding.
Compare U.S.S.G. § 1B1.3, Applic. Note 1 (1991) with U.S.S.G. § 1B1.3, Applic. Note 1
(1993). Indeed, this alteration clarified that the duty to make particularized findings as to both
the defendant’s agreement and the foreseeability of co-conspirators’ acts lies with the sentencing
court, and we have expressly stated that the burden rests with the government to establish, by a
preponderance of the evidence, the scope of the defendant’s agreement. Studley, 47 F.3d at 574,
576; see United States v. Rizzo, 349 F.3d 94, 99 (2d Cir. 2003) (noting that under Section 1B1.3
the government “[i]s required to prove” that a third party’s acts are within the scope of
defendant’s agreement and reasonably foreseeable to the defendant).3 We see no reason to alter
the allocation of this burden.

         Accordingly, we vacate Khandrius’s sentence and remand the case to the district court
with instruction to sentence Khandrius without considering the acts of co-conspirators, unless the
district court makes particularized findings that the scope of his agreement to undertake jointly
the conspiracy’s activities was broad enough to cover the acts of individual co-conspirators and
that these acts were foreseeable to him.

II. Fatico
        Khandrius also challenges the district court’s denial of his request for a hearing pursuant
to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979). We review the denial of an evidentiary
hearing for an abuse of discretion. United States v. Ghailani, 733 F.3d 29, 54 (2d Cir. 2013).

        While a district court must afford the defendant an opportunity to rebut disputed factual
allegations relevant to sentencing, neither the Due Process Clause nor the Guidelines require the


       3
         We note, however, that Rizzo’s treatment of the evidentiary burden with respect to
foreseeability under Section 1B1.3 is at odds with other of our cases applying post-1992 versions
of the Guidelines. See, e.g., United States v. Martinez-Rios, 143 F.3d 662, 677–78 (2d Cir.
1998); United States v. Mulder, 273 F.3d 91, 119 (2d Cir. 2001); United States v. Firment, 296
F.3d 118, 122 (2d Cir. 2002). In these cases we relied on Negron and its progeny for the
proposition that the defendant must prove that the acts of co-conspirators were not foreseeable.
However, these decisions did not address the effect, if any, of the 1992 amendment. While we
harbor doubt as to the continued viability of Negron, we need not resolve this apparent tension
today, as this line of precedent does not control the burden of proof at issue here.

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district court to hold a formal evidentiary hearing. United States v. Phillips, 431 F.3d 86, 93 (2d
Cir. 2005). Khandrius, however, argues that in declining to hold a Fatico hearing the district
court erred by (1) viewing the issue of the scope of his agreement as a legal, rather than factual,
dispute, and (2) leaving disputes of fact regarding the scope of his agreement unresolved.

        Upon review of the sentencing transcript, we are satisfied that the district court properly
apprehended the factual nature of Khandrius’s request for a Fatico hearing and did not abuse its
discretion in denying this request. Through a sentencing memorandum and at the sentencing
hearing Khandrius objected to the scope of the conduct attributed to him. This opportunity to
challenge the government’s evidence was sufficient to satisfy due process. See id.

Shelikhova’s Appeal

       As to Shelikhova, we have reviewed her attorney’s Anders motion and brief,
Shelikhova’s pro se response, and the government’s motion to dismiss her appeal. We agree with
Shelikhova’s counsel and the government that there are no meritorious issues to be raised on
appeal because (1) Shelikhova’s guilty plea was valid; (2) her waiver of appellate rights was
knowing and voluntary; and (3) her plea agreement clearly specified that she would not appeal a
“term of imprisonment of 240 months or below.” We are satisfied that counsel here diligently
searched the record and properly concluded that an appeal would be frivolous. See United States
v. Burnett, 989 F.2d 100, 104 (2d Cir. 1993). We therefore grant both motions.

        We have considered the remainder of appellants’ arguments and find them to be without
merit. Accordingly, the judgment of the District Court as to Defendant-Appellant Khandrius is
VACATED and the case is REMANDED for resentencing consistent with this order. Attorney
Volkell’s motion to withdraw from representation of Defendant-Appellant Shelikhova is
GRANTED, and the government’s motion to dismiss Shelikhova’s appeal is GRANTED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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