                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2002

USA v. Rabinovich
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3979




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Recommended Citation
"USA v. Rabinovich" (2002). 2002 Decisions. Paper 378.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/378


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                                               NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                          NO. 01-3979
                           __________

                    UNITED STATES OF AMERICA

                               v.

                       YAKOV RABINOVICH,
                                        Appellant
                           __________

        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                (D.C. Criminal No. 99-cr-00552)
          District Judge: Honorable Herbert J. Hutton
                           __________

           Submitted Under Third Circuit LAR 34.1(a)
                        on June 13, 2002

     Before:   ROTH, RENDELL and ROSENN, Circuit Judges,

                      (Filed July 9, 2002)
                           __________

                      OPINION OF THE COURT
                           __________

RENDELL, Circuit Judge.
     Yakov Rabinovich pled guilty to one count of mail fraud in violation of 18
U.S.C. 1341. As part of his sentence, the District Court ordered him to pay $170,000 in
restitution to six injured insurance companies. On appeal, he challenges the propriety of
that restitution order. We will affirm.
     The District Court exercised jurisdiction pursuant to 18 U.S.C. 3231. We have
jurisdiction under 18 U.S.C. 1291. We review de novo whether the award was
permitted by law, but we consider the appropriateness of the amount by an abuse of
discretion standard. United States v. Simmonds, 235 F.3d 826, 829 (3d Cir. 2000).
Because defendant did not object to the restitution order at the sentencing hearing, we
will review for plain error. United States v. Coates, 178 F.3d 681 (3d Cir. 1999).
     The District Court based its restitution order on the loss amount provided in the
presentence investigation report ("PSI"), and adopted the allocation suggested by the
Assistant U.S. Attorney in her September 24, 2001 letter. On appeal, Rabinovich makes a
general challenge to the restitution order, and specifically raises three alleged deficiencies
to the Court’s calculation and allocation of the restitution: first, the amount in the PSI
was a "guesstimate;" second, the time frame upon which the loss was based was not that
of the "relevant conduct;" and, third, the District Court failed to make the necessary
findings.
     The government contends that Rabinovich did not raise these, or any other
objections to the calculation and allocation of the restitution in the District Court, and we
agree. The Court provided Rabinovich’s counsel many opportunities to dispute the
figures in the presentencing report and the allocation of these amounts presented in the
Assistant U.S. Attorney’s September letter. For example, the Court asked: "Have you any
objection to [the PSI’s] content?" Defense counsel responded: "None, sir." Additionally,
after the probation officer who drafted the PSI agreed with the Court that the restitution
figure was a "guesstimate," the Court immediately asked both defense counsel and the
Assistant U.S. Attorney, "do you wish to comment on any of this?" Defense counsel
responded: "No, your Honor, thank you." App. at 80. Finally, in a letter to the Court on
September 25, 2001, defense counsel specifically stated that the defense did not challenge
the victim allocation set forth in the September 24, 2001 letter. The Court originally
ordered restitution in the amount of $262,000, but thereafter reduced it to $170,000 based
on Rabinovich’s inability to pay the larger amount.
     Accordingly, Rabinovich having been presented with repeated opportunities to
object to the factors underlying the court’s restitution order, and explicitly agreeing with
the District Court’s determination, we find that he waived his right to challenge the
amount of the loss and the relevant time frame. See, e.g., United States v. Cannistraro,
871 F.2d 1210, 1214 (3d Cir. 1989) ("By failing to contest the underlying factors used by
the district court imposing the order of restitution, Cannistraro has waived his right to
contest this order."). Further, his argument that the Court’s restitution order was deficient
because it lacked the necessary findings is subject to plain error review and we find none.
     Accordingly, we will affirm the order of the District Court.
___________________________
TO THE CLERK OF COURT:
     Please file the foregoing Not Precedential Opinion.



                                                                     /s/ Majorie O. Rendell
                                                                     Circuit Judge
