     13-4842-cr
     United States v. Shteyman

                                  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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 19th day of May, two thousand fifteen.
 4
 5   PRESENT:
 6                       RALPH K. WINTER,
 7                       CHESTER J. STRAUB,
 8                       SUSAN L. CARNEY,
 9                               Circuit Judges.
10   __________________________________________
11
12   UNITED STATES OF AMERICA,
13
14                               Appellee,
15
16                               v.                                                         No. 13-4842-cr
17
18   DMITRY SHTEYMAN,
19
20                               Defendant-Appellant,
21
22   ALEKSEY SHTEYMAN, MAXSIM SHVEDKIN, SARA
23   KALANTAROV, ILYA GERSHKOVICH, PELAGEYA
24   KOTELSKY, EVGENY GIL, YEFIM KORNFELD,
25   VALENTINA MUSHINSKAYA, SHELYA PINSKAYA,
26   VLADMIR RUBIN, JESSE A. STOFF, M.D., BILLY N.
27   GERIS, M.D., AND MARIA NAKHBO,
28
29                               Defendants.*
     *   The Clerk of Court is respectfully directed to amend the official caption to conform with the above.
 1   __________________________________________
 2
 3   FOR DEFENDANT-APPELLANT:                           MARTIN J. SIEGEL, New York, NY (Jillian
 4                                                      S. Harrington, Monroe Township, NJ, on
 5                                                      the brief).
 6
 7   FOR APPELLEE:                                      SANGITA K. RAO, Attorney, Appellate
 8                                                      Section, Criminal Division, U.S.
 9                                                      Department of Justice, Washington, DC
10                                                      (Loretta E. Lynch, United States Attorney
11                                                      for the Eastern District of New York,
12                                                      Leslie R. Caldwell, Assistant Attorney
13                                                      General, Sung-Hee Suh, Deputy Assistant
14                                                      Attorney General, and Catherine Votaw
15                                                      and Ellen R. Meltzer, Attorneys, Fraud
16                                                      Section, Criminal Division, U.S.
17                                                      Department of Justice, on the brief).
18
19          Appeal from a judgment of the United States District Court for the Eastern District
20   of New York (Johnson, J.).

21          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
22   ADJUDGED, AND DECREED that the judgment of the District Court entered on
23   December 20, 2013, is AFFIRMED.

24          Defendant-Appellant Dmitry Shteyman appeals from a judgment of the United States
25   District Court for the Eastern District of New York (Johnson, J.) sentencing him to 97
26   months’ imprisonment to be followed by a 3-year term of supervised release and ordering
27   him to pay $1,489,909.40 in restitution to the Centers for Medicare & Medicaid Services.
28   (Shteyman was separately ordered to forfeit $1,489,909.40 to the United States.) The
29   sentence was based on Shteyman’s conviction, following a guilty plea, of conspiring to
30   commit health care fraud, see 18 U.S.C. §§ 1347, 1349. On appeal, Shteyman contends that
31   the District Court committed procedural and substantive error in imposing this sentence.
32   We assume the parties’ familiarity with the underlying facts and the procedural history of the
33   case, to which we refer only as necessary to explain our decision.

34          In a sentencing appeal, “the role of the Court of Appeals is limited to examining a
35   sentence for reasonableness, which is akin to review under an ‘abuse of discretion’
                                                   2
 1   standard.” United States v. Byors, 586 F.3d 222, 225 (2d Cir. 2009). “Reasonableness review
 2   involves consideration of both the length of the sentence (substantive reasonableness) and
 3   the procedures used to arrive at the sentence (procedural reasonableness).” United States v.
 4   Mazza-Alaluf, 621 F.3d 205, 213 (2d Cir. 2010) (internal quotation marks omitted). When a
 5   sentencing challenge was not raised in the district court, the challenge “will be deemed
 6   forfeited on appeal and addressed only upon a showing that the court committed plain
 7   error.” United States v. Coriaty, 300 F.3d 244, 252 (2d Cir. 2002) (internal quotation marks
 8   omitted).

 9

10     I.   Procedural Challenges

11          When imposing sentence, a district court is required to consider a number of factors,
12   including “the nature and circumstances of the offense and the history and characteristics of
13   the defendant” and “the need to avoid unwarranted sentence disparities among defendants
14   with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(1),
15   (6). In addition, “[t]he court, at the time of sentencing, [must] state in open court the
16   reasons for its imposition of the particular sentence . . . .” Id. § 3553(c). A court “errs
17   procedurally if it does not consider the § 3553(a) factors” or “fails adequately to explain its
18   chosen sentence.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).
19   Shteyman contends that the District Court committed procedural error in both of these
20   respects. Because Shteyman raises these arguments for the first time on appeal, we review
21   for plain error.

22          We “presume, in the absence of record evidence suggesting otherwise, that a
23   sentencing judge has faithfully discharged h[is] duty to consider the statutory factors” laid
24   out in 18 U.S.C. § 3553(a). Cavera, 550 F.3d at 193 (internal quotation marks omitted).
25   Shteyman, focusing on § 3553(a)(6), attempts to rebut this presumption by pointing to the
26   prison sentences of his co-defendants and the mean and median prison sentences for fraud
27   in the Second Circuit and nationally in 2013, all of which were shorter than Shteyman’s



                                                     3
 1   sentence.1 None of this evidence, however, demonstrates the existence of an unwarranted
 2   disparity and, in turn, a lack of consideration by the District Court: Section 3553(a)(6) “does
 3   not require a district court to consider disparities between co-defendants” at all. United States
 4   v. Frias, 521 F.3d 229, 236 (2d Cir. 2008). And the proffered statistics “provide no details
 5   underlying the sentences” and are thus “unreliable to determine unwarranted disparity.”
 6   United States v. Irving, 554 F.3d 64, 76 (2d Cir. 2009) (internal quotation marks omitted). In
 7   the absence of persuasive evidence of an unwarranted disparity or any other evidence that
 8   the court did not consider the need to avoid such disparities, Shteyman has failed to show
 9   that the court committed error, let alone plain error.

10           Shteyman also suggests that the District Court committed procedural error by failing
11   adequately to explain its chosen sentence in open court. Generally, “a brief statement of
12   reasons will . . . suffice where the parties have addressed only straightforward, conceptually
13   simple arguments to the sentencing judge.” Cavera, 550 F.3d at 193 (internal quotation
14   marks omitted). In some cases, “the ‘open court’ requirement may be satisfied by the
15   district court adopting the PSR in open court.” United States v. Molina, 356 F.3d 269, 277 (2d
16   Cir. 2004). The arguments presented by the parties to the District Court here were
17   straightforward and simple: the government focused on Shteyman’s leadership role in the
18   scheme, while Shteyman’s counsel focused on Shteyman’s family circumstances, medical
19   conditions, and pursuit of further studies while detained awaiting sentencing. Given the
20   nature of the arguments before the court, the district judge did not plainly err by merely
21   adopting the PSR in open court and stating generally that he was considering the § 3553(a)
22   factors.

23




     1 If Shteyman were “assert[ing] that the district court failed to accord the § 3553(a)(6) factor sufficient
     mitigating weight, he [would be] rais[ing] a substantive challenge.” Mazza-Alaluf, 621 F.3d at 214. Because
     Shteyman makes his argument within the rubric of procedural unreasonableness, we take him to be arguing
     that the District Court did not adequately consider the § 3553(a)(6) factor, rather than that the court did not
     accord the factor sufficient weight. We address Shteyman’s substantive challenges separately in Part II.

                                                            4
 1   II.    Substantive Challenges

 2          Shteyman also contends that his sentence was substantively unreasonable. In so
 3   doing, he points to a number of factors, including the District Court’s failure to reduce his
 4   offense level by a third point under U.S.S.G. § 3E1.1(b) based on his claimed extraordinary
 5   acceptance of responsibility.

 6          To the extent that Shteyman contends that the court erred in its Guidelines
 7   calculation, this is really a procedural argument, see Cavera, 550 F.3d at 190, and it is without
 8   merit. A government motion is “a necessary prerequisite” to a court’s reducing an offense
 9   level by a third point under U.S.S.G. § 3E1.1(b) unless the government has acted in bad faith
10   with respect to a plea agreement or has refused to move for the reduction based on an
11   unconstitutional motive. United States v. Lee, 653 F.3d 170, 173 (2d Cir. 2011) (internal
12   quotation marks omitted). Here, the government never moved for the reduction and
13   Shteyman does not argue that either exception applies. In this posture, the District Court
14   was without power to award the third point and thus did not err in declining to do so.

15          None of Shteyman’s truly substantive arguments has merit, either. Substantive
16   reasonableness review “provide[s] a backstop for those few cases that, although procedurally
17   correct, would nonetheless damage the administration of justice because the sentence
18   imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of
19   law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Shteyman points to his
20   cooperation with the government, his acceptance of responsibility, his medical conditions,
21   his parents’ ill health, the nature of his past crimes, the volume of supportive letters
22   submitted on his behalf, his pursuit of further studies, and his co-defendants’ lesser
23   sentences as reasons for concluding that his sentence was substantively unreasonable. But
24   these factors do not demonstrate that his sentence was shockingly high or unsupportable as
25   a matter of law, particularly when considered in light of Shteyman’s leading role in the
26   multimillion-dollar conspiracy to defraud the federal government and evidence that
27   Shteyman was not fully honest with the government in the course of his promised
28   cooperation.

                                                     5
1                                            * * *

2         We have considered Shteyman’s remaining arguments and find them to be without
3   merit. For the reasons set out above, we AFFIRM the judgment of the District Court.

4

5                                                    FOR THE COURT:
6                                                    Catherine O’Hagan Wolfe, Clerk of Court




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