13-631-cr
United States v. Chervin

                             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
30th day of January, two thousand fourteen.

Present:    AMALYA L. KEARSE,
            ROSEMARY S. POOLER,
            REENA RAGGI,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                           -v-                                              13-631-cr

VADIM CHERVIN, AKA SEALED DEFENDANT 7, AKA VADIK,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:         Frederick H. Cohn (Angela Lipsman, on the brief), New York,
                                 N.Y.

Appearing for Appellee:          Joshua A. Naftalis, New York, N.Y., and Diane Gujarati, White
                                 Plains, N.Y., Assistant United States Attorneys (Preet Bharara,
                                 United States Attorney for the Southern District of New York, on
                                 the brief).

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

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
        Defendant-Appellant Vadim Chervin was convicted of one count of conspiracy to
commit mail fraud and health care fraud, in violation of 18 U.S.C. § 1349, and one count of
health care fraud, in violation of 18 U.S.C. § 1347. He was sentenced principally to 57 months of
imprisonment. Chervin now appeals from his February 14, 2013 judgment of conviction, which
was filed on February 19, 2013. On appeal, Chervin asserts that his sentence was unreasonable
because it was disproportionate to the sentences of other individuals who were involved in the
fraud at issue in this case. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

        “[W]e review a sentence for reasonableness,” which “is akin to review for abuse of
discretion.” United States v. Fernandez, 443 F.3d 19, 26–27 (2d Cir. 2006). There are two
components that are included in the court’s review of sentencing: procedural review and
substantive review. See United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010).

        In this case, the district court committed no procedural error at sentencing. “[A]ssuming
arguendo that 18 U.S.C. § 3553(a)(6) can support a reduced sentence designed to eliminate or
diminish disparity between the sentences imposed on co-defendants, those co-defendants would
have to be similarly situated.” Fernandez, 443 F.3d at 31–32 (footnote omitted).1 Chervin has not
shown that he was similarly situated to his co-defendants for various reasons, including that he
was the only defendant in this case to go to trial and he did not accept responsibility. While the
record does not contain materials stating the degree to which Chervin’s co-defendants accepted
responsibility, it is undisputed that many of them pleaded guilty and, therefore, even if their
acceptance of responsibility was limited they admitted sufficient facts to show their guilt. In
addition, some of the co-defendants in this case were convicted of crimes different than the ones
for which Chervin was convicted. Accordingly, assuming that Section 3553(a)(6) can be used to
challenge disparities in sentences among co-defendants, Chervin has failed to show that he was
similarly situated to his co-defendants such that any disparity between his sentence and theirs
would be unreasonable.

         Chervin also argues that the district court did not sufficiently explain the disparities in the
sentences among the co-defendants in this case. “We have held that section 3553(a)(6) requires a
district court to consider nationwide sentence disparities, but does not require a district court to
consider disparities between co-defendants.” United States v. Frias, 521 F.3d 229, 236 (2d Cir.
2008). In any event, we may presume that the district court considered Chervin’s disparities
argument because it reviewed his January 3, 2013 letter regarding sentencing, which referenced
that argument. See Fernandez, 443 F.3d at 29 (there is a “strong presumption that the sentencing
judge has considered all arguments properly presented to her”).2 Accordingly, Chervin has not


        1
         Section 3553(a)(6) of Title 18 of the United States Code instructs the sentencing court
to consider “the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.”
        2
         We note that the district court referred to a sentencing letter that it had received from
defendant as one dated January 12, 2013, not January 3, 2013. However, when the district court
asked at the hearing whether it had in its possession all of the parties’ sentencing submissions,
Chervin did not state that the court was missing any of his submissions.

                                                   2
shown that the district court’s failure to explain the disparities among the co-defendants’
sentences at the hearing meant that the district judge did not fulfill his duty to consider Chervin’s
argument.

        Nor was Chervin’s sentence substantively unreasonable. Chervin has offered no
persuasive argument as to why the district court’s alleged failure to place more weight on the
disparities among the co-defendants’ sentences rendered Chervin’s sentence substantively
unreasonable. Chervin was involved in a scheme that defrauded insurance companies out of
more than one million dollars and he failed to accept responsibility for his actions. Based on that
conduct, Chervin’s sentence at the low end of the Guidelines range was not “shockingly high,
shockingly low, or otherwise unsupportable as a matter of law.” Dorvee, 616 F.3d at 183
(internal quotation marks omitted).

       Finally, we are unclear why Chervin has asserted that he was not permitted to review the
sentencing minutes of his co-defendants. The district court record reveals that the district court
granted Chervin’s application to obtain the minutes of those sentencing proceedings. See
Endorsed Letter at 1, United States v. Chervin, No. 10-cr-00918-RPP-7 (S.D.N.Y. June 19,
2013), ECF No. 564 (“Application [‘to enlarge the record’ and for ‘authorization to obtain the
sentencing minutes’] granted. So ordered. Robert P. Patterson U.S.D.J.”).

        We have considered the remainder of Chervin’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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