     13-0118
     United States v. Katsman

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 13th day of January, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-0118
16
17       IGOR KATSMAN,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        JONATHAN I. EDELSTEIN, Edelstein
22                                             & Grossman, New York, New York.
23
24       FOR APPELLEE:                         MICHAEL H. WARREN, for Loretta
25                                             E. Lynch, United States Attorney
26                                             for the Eastern District of New
27                                             York, Brooklyn, New York.
28

                                                  1
1         Appeal from a judgment of the United States District
2    Court for the Eastern District of New York (Johnson, J.).
3
4         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5    AND DECREED that the judgment of the district court be
6    AFFIRMED.
7
8        Katsman appeals from the judgment of the United States

9    District Court for the Eastern District of New York

10   (Johnson, J.), convicting him of conspiracy to defraud the

11   Internal Revenue Service in violation of 18 U.S.C. § 371

12   (two counts) and aggravated identity fraud in violation of

13   18 U.S.C. § 1028A.   On appeal, Katsman challenges the 120

14   month sentence as procedurally erroneous and substantively

15   unreasonable.   We assume the parties’ familiarity with the

16   underlying facts, the procedural history, and the issues

17   presented for review.

18       1.    Organizer-Leader Enhancement

19       The offense level may be enhanced for an “organizer or

20   leader of a criminal activity that involved five or more

21   participants or was otherwise extensive.”   U.S.S.G. § 3B1.1

22   (2012).   “[T]he sentencing court’s findings of fact as to a

23   defendant’s role in the offense will be overturned only if

24   they are clearly erroneous.   The district court’s conclusion

25   that [a defendant is] a manager, supervisor, organizer, or

26   leader, for purposes of U.S.S.G. § 3B1.1(a), however,

27   involves a legal interpretation of the Guidelines and is


                                   2
1    reviewed de novo.”     United States v. Wisniewski, 121 F.3d

2    54, 57-58 (2d Cir. 1997) (internal quotation marks and

3    citations omitted).1

4        Katsman argues that the district court improperly

5    conflated his essential role in the conspiracy with being

6    its leader, and that he did not direct the actions of his

7    “clientele.”      This enhancement entails the following

8    considerations:

 9       the exercise of decision making authority, the nature
10       of participation in the commission of the offense, the
11       recruitment of accomplices, the claimed right to a
12       larger share of the fruits of the crime, the degree of
13       participation in planning or organizing the offense,
14       the nature and scope of the illegal activity, and the
15       degree of control and authority exercised over others.
16
17   U.S.S.G. § 3B1.1 cmt. 4; see United States v. Beaulieau, 959

18   F.2d 375, 379-80 (2d Cir. 1992).     Katsman played an

19   instrumental role by providing his partners the checks to be

20   cashed, directing at least one individual to delay filing a

21   currency transaction report, purchasing the identification

22   documents, and instructing his partners to assign each shell

23   company to a particular client to lessen the risk of

24   exposure.   Given the scope of the offense to commit tax


         1
           The district court adopted the facts recited in the
     presentence report. Where a presentence report states
     enough facts for meaningful appellate review, a district
     court may thus satisfy its obligation to make factual
     findings. See United States v. Skys, 637 F.3d 146, 157 (2d
     Cir. 2011).
                                     3
1    fraud, the nature of Katsman’s necessary facilitation, and

2    his direction over his partners, we find no error in the

3    district court’s application of the organizer-leader

4    enhancement.

5        To the extent Katsman argues that the four-level

6    enhancement overstates the size of his criminal enterprise,

7    the presentence report identifies eight medical supply

8    companies involved in the conspiracy.       While Katsman rightly

9    argues that an ordinary customer-vendor relationship does

10   not establish a conspiracy, see United States v. Hawkins,

11   547 F.3d 66, 72 (2d Cir. 2008), there was sufficient

12   evidence in this case of a conspiracy.       Indeed, Katsman pled

13   guilty to two conspiracy charges.

14       2.   Government’s Release From the Plea Agreement

15       When interpreting a plea agreement, “courts construe

16   plea agreements strictly against the Government.”       United

17   States v. Ready, 82 F.3d 551, 559 (2d Cir. 1996), superseded

18   on other grounds as stated in United States v. Cook, 722

19   F.3d 477, 481 (2d Cir. 2013).       Furthermore, “courts may

20   apply general fairness principles to invalidate particular

21   terms of a plea agreement.”     Id.    In the plea agreement, the

22   Government agreed not to advocate for a position within the

23   acknowledged Guidelines range in the absence of any

24   subsequent information relevant to sentencing.       Katsman

                                     4
1    contends that these principles of interpretation require us

2    to hold that the relevant information must be material and

3    significant.   Even if we accept this argument, Katsman’s

4    creation of a Facebook page to denounce a cooperating

5    witness was material and significant, at least insofar as it

6    demonstrates Katsman’s character and even the extent to

7    which he is accepting responsibility.   Regardless of truth,

8    publicizing the cooperation of another person in the

9    criminal process can have serious consequences.    No case

10   supports the argument that a fact is material only if it

11   shows a criminal offense or the factual predicate of a

12   sentencing enhancement.

13       3.   Vindictiveness

14       Katsman argues that the increase in sentence at

15   resentencing was presumptively vindictive in light of North

16   Carolina v. Pearce, 395 U.S. 711, 725-26 (1969).    However,

17   “before a defendant may invoke the Pearce presumption, there

18   must be a ‘reasonable likelihood that the increase in

19   sentence is the product of actual vindictiveness on the part

20   of the sentencing authority.’”    United States v. Singletary,

21   458 F.3d 72, 76 (2d Cir. 2006) (quoting Alabama v. Smith,

22   490 U.S. 794, 799 (1989)) (emphasis in Singletary).     Katsman

23   cannot show such a reasonable likelihood.   His resentencing

24   was conducted by a different district judge, the

                                   5
1    resentencing was not the result of a successful appeal, and

2    the resentencing judge was aware of Katsman’s conduct on

3    Facebook and the Government’s request to add the organizer-

4    leader enhancement.

5        4.   Substantive Unreasonableness

6        Substantive reasonableness is reviewed for abuse of

7    discretion.   United States v. Leslie, 658 F.3d 140, 142 (2d

8    Cir. 2011).   Katsman played a crucial role in this

9    conspiracy.   Furthermore, the district court appropriately

10   considered Katsman to be an organizer in the scheme and knew

11   of Katsman’s later conduct on Facebook.   Part of Katsman’s

12   sentence–-24 months–-was also mandatory as a result of the

13   identity fraud charge.   18 U.S.C. § 1028A(a)(1); (b)(2).

14   Furthermore, the sentence was within the Guidelines range.

15   The district court did not abuse its discretion in imposing

16   this sentence.

17
18        For the foregoing reasons, and finding no merit in
19   Katsman’s other arguments, we hereby AFFIRM the judgment of
20   the district court.
21
22                               FOR THE COURT:
23                               CATHERINE O’HAGAN WOLFE, CLERK
24




                                   6
