     Case: 12-30380       Document: 00512201067         Page: 1     Date Filed: 04/08/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            April 8, 2013
                                     No. 12-30380
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

ANTON KRASNOV,

                                                  Defendant-Appellant

Cons. w/ No. 12-30461

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

DENYS ZADOROZHNYI,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:11-CR-220-1
                             USDC No. 2:11-CR-220-5


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*


       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
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                                No. 12-30380 c/w
                                 No. 12-30461

       Anton Krasnov and Denys Zadorozhnyi, along with three additional
codefendants, were charged with various counts of conspiracy and bank fraud.
Both pleaded guilty to a single count of conspiring to commit bank fraud.
Krasnov received a two-year prison sentence, substantially higher than his
guidelines imprisonment range of zero to six months, and Zadorozhnyi was
sentenced to 30 months of imprisonment, also substantially higher than his 6 to
12 months guidelines range. Both appeal their sentences.
       Many of Krasnov and Zadorozhnyi’s arguments rest on the premise that
the district court impermissibly departed upward in imposing their sentences.
Based upon this perception, they argue that departure would not have been
justified under certain provisions of the Sentencing Guidelines relevant to
departures. They also argue that whether they are likely to pay restitution
cannot justify a departure. Finally, they contend that they did not receive the
required notice that the court was considering an upward departure and were
not given an opportunity to comment on the court’s reasons for departing.
Krasnov and Zadorozhnyi did not raise any arguments at sentencing related to
the departure provisions in the Guidelines; thus, our review is for plain error
only. See United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011).
       At sentencing, the district court explained that it had taken into account
the Sentencing Guidelines as well as the 18 U.S.C. § 3553(a) factors and
specifically the seriousness of each defendant’s actions and their lack of criminal
history. The district court also adopted the victim’s argument that severe
sentences were necessary for deterrence. It did not refer to the sentences as
departures from the Guidelines or cite to any departure provision in the
Guidelines. Because the district court accounted for the guidelines ranges but
imposed sentences outside of those ranges based on the § 3553(a) factors, the



R. 47.5.4.

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sentences constitute variances rather than departures. See United States v.
Mejia-Huerta, 480 F.3d 713, 721 (5th Cir. 2007). Thus, the court was not
compelled to give notice that it intended to impose an above-guidelines sentence
or to consider the criteria for the departures described in the Guidelines and
committed no error. See id. at 722-23. The reference to “departures” is the
statement of reasons appears to be an inadvertent error, given that the section
used to describe the sentence is the one used for variances, not departures.
      In their reply brief, Krasnov and Zadorozhnyi argue for the first time that
the district court committed procedural error by failing to provide sufficient
reasons to justify the sentences. Issues raised for the first time in a reply brief
are abandoned; thus, we decline to consider the procedural reasonableness of the
sentences. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). In any event,
the district court addressed the reasons for the sentence sufficiently for us to
review them.
      By objecting at sentencing, Krasnov and Zadorozhnyi have preserved the
issue of the substantive reasonableness of their sentences. We review a sentence
for reasonableness under an abuse of discretion standard, taking into account
the totality of the circumstances. Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). Where,
as here, the district court varies upward from the guidelines range, we must
determine whether the sentence “unreasonably fails to reflect” the § 3553(a)
sentencing factors. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      Krasnov and Zadorozhnyi take issue with the district court’s rationale for
imposing their sentences, contending that it took into account purportedly
improper factors, failed to account for their minor roles in the offense and the
need to avoid unwarranted sentencing disparities, placed too much emphasis on
the need for deterrence, and held them accountable for larger losses than they
caused. Although the sentences imposed by the district court were substantially

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higher than the advisory guidelines ranges, the district court was in the best
position to judge Krasnov and Zadorozhnyi and their circumstances, and the
reasons given by the district court sufficiently support the sentences. See United
States v. Williams, 517 F.3d 801, 812-13 (5th Cir. 2008). The court engaged in
a thorough discussion, showing that it had carefully examined the record. It tied
the reasons for its sentences to specific, relevant facts, including the nature and
circumstances of the offense—specifically the seriousness of the crime and the
impact that it had on the victim—the need for deterrence, and the circumstances
of the defendants. The court specifically accounted for the defendants’ youth and
minor roles in the overall criminal scheme. It considered no improper factors.
The court made an individualized assessment and was free to conclude, as it did,
that in Krasnov and Zadorozhnyi’s cases, the guidelines ranges gave insufficient
weight to some of the sentencing factors. See § 3553(a); Williams, 517 F.3d at
809. Krasnov and Zadorozhnyi have not shown that the court failed to take into
account a factor that should have received significant weight, gave significant
weight to an irrelevant or improper factor, or made a clear error of judgment in
balancing the sentencing factors. See Smith, 440 F.3d at 708.
      Finally Krasnov and Zadorozhnyi contend that their trial attorneys
rendered ineffective assistance.     However, we generally do not consider
ineffective assistance claims on direct appeal, and the record is not sufficiently
developed for us to address them here. See United States v. Cantwell, 470 F.3d
1087, 1091 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.




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