12-3683-cr
United States v. Borker

                               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 TO 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 20th day of May, two thousand thirteen.

PRESENT: CHESTER J. STRAUB,
         REENA RAGGI,
                    Circuit Judges,
         BRIAN M. COGAN,
                    District Judge.*

-------------------------------------------------------------------------------------
UNITED STATES OF AMERICA,
                   Appellee,
               v.                                                                       No. 12-3683-cr

VITALY BORKER, a/k/a Stanley Bolds, a/k/a Tony
Russo,
                    Defendant-Appellant.
-------------------------------------------------------------------------------------

APPEARING FOR APPELLANT:                                   DOMINIC F. AMOROSA, ESQ., New York,
                                                           New York.

APPEARING FOR APPELLEE:                                    DANIEL W. LEVY (Danya Perry, Iris Lan, on the
                                                           brief), Assistant United States Attorneys, for Preet
                                                           Bharara, United States Attorney for the Southern
                                                           District of New York, New York, New York.


           *
         The Honorable Brian M. Cogan, of the United States District Court for the Eastern
District of New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (Richard J. Sullivan, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on September 10, 2012, is AFFIRMED.

       Defendant Vitaly Borker appeals from a judgment of conviction sentencing him to

four concurrent terms of 48 months’ incarceration, following a guilty plea to two counts of

threatening interstate communications, see 18 U.S.C. § 875(c), and one count each of mail

fraud, see id. § 1341, and wire fraud, see id. § 1343. Borker argues that the district court

committed procedural error in calculating his Guidelines range by (1) denying him a

three-level credit for acceptance of responsibility under U.S.S.G. § 3E1.1; (2) applying a

six-level enhancement for conduct evincing an intent to carry out his threats under U.S.S.G.

§ 2A6.1(b)(1); and (3) applying a six-level enhancement for the amount of loss related to his

fraud under U.S.S.G. § 2B1.1. See United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008)

(en banc) (stating that district court commits procedural error, inter alia, where it

miscalculates applicable Guidelines range). He further challenges the district court’s

restitution award. We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.




                                             2
1.     Acceptance of Responsibility

       Whether a defendant “has accepted responsibility is a factual question,” and the

district court’s resolution of that question will “not be disturbed unless it is without

foundation.” United States v. Taylor, 475 F.3d 65, 68 (2d Cir. 2007) (internal quotation

marks omitted); see also U.S.S.G. § 3E1.1 cmt. n.5 (stating that district court determination

entitled to “great deference on review”). “[A] defendant who falsely denies, or frivolously

contests, relevant conduct that the court determines to be true has acted in a manner

inconsistent with acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.1(A). Here, in

support of his request for a non-incarceratory sentence, Borker represented to the district

court that he had not threatened sexual violence against the victims of the two § 875 crimes.

After conducting a hearing, at which it heard directly from one of the victims as to the sexual

threats made by Borker,1 the district court credited the victim’s account and denied Borker

a § 3E1.1 credit, at least in part, on that basis. On this record, we cannot conclude that the

district court’s decision was “without foundation.” United States v. Taylor, 475 F.3d at 68

(internal quotation marks omitted).2


       1
          After this victim testified, the parties stipulated that the other victim would also
testify that Borker threatened her with sexual assault.
       2
         Borker concedes that his threats against the two victims of the § 875 counts of
conviction were “relevant conduct” to be considered in assessing his acceptance of
responsibility. U.S.S.G. § 3E1.1 cmt. n.1(A). Because we conclude that the district court
acted within its discretion in finding that Borker falsely denied that relevant conduct, we
need not address his argument that the district court improperly considered his homicidal
threats against other testifying victims of Borker as relevant conduct in denying him a §
3E1.1 credit. Borker does not, and cannot, argue that the district court could not consider this

                                               3
       Insofar as Borker continues to attack his victims’ credibility on appeal, not only does

he provide no basis for upsetting the district court’s finding, he also underscores his

persistent refusal to accept responsibility for his crimes, thereby confirming the propriety of

the district court’s denial of § 3E1.1 credit. See United States v. Sewell, 252 F.3d 647,

652–53 (2d Cir. 2001) (upholding denial of § 3E1.1 credit where, inter alia, defendant

attacked victim’s credibility). We reject Borker’s contention that the district court erred in

concluding that the victims were, and thus that Borker was not, credible as to the nature and

severity of Borker’s threats. See United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008)

(stating that when “credibility determinations are at issue, we give particularly strong

deference to a district court finding”). Borker has offered no convincing reason why the

victims would fabricate their testimony, and we can conceive of none.

       We further reject Borker’s argument that he did not deny relevant conduct before the

district court because he disputed only the “exact language” of his charged threats, Appellant

Br. 21, not the threats themselves. By disputing that he used language threatening sexual

violence, Borker in effect denied the severity of his crime in a way that was “inconsistent

with acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.1(A); see United States v.

Brennan, 395 F.3d 59, 75 (2d Cir. 2005) (affirming denial of § 3E1.1 reduction where

defendant, inter alia, “sought to minimize or conceal the extent of his guilt”).



testimony of uncharged threats in assessing the credibility of his denials as to the charged
relevant conduct. See United States v. Gomez, 580 F.3d 94, 105 (2d Cir. 2009). Nor can he
question the district court’s discretion to consider such evidence in otherwise making an
independent decision as to the sentence warranted pursuant to 18 U.S.C. § 3553(a). See
United States v. Cavera, 550 F.3d at 188–90.

                                              4
       Borker’s remaining § 3E1.1 arguments merit little discussion. First, the district court

was not bound by statements indicating Borker’s entitlement to § 3E1.1 credit, because it

made those statements before Borker himself disputed the nature and severity of the threats

at issue. Second, the record belies Borker’s contentions that the district court attempted to

coerce him into making admissions in violation of due process and that the district court

failed adequately to consider his mental health issues in imposing sentence. Third, insofar

as Borker argues that the district court’s factfinding violated the Sixth Amendment as

construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), he is wrong, because the district

court certainly recognized the Guidelines to be advisory. See United States v. Booker, 543

U.S. 220, 245 (2005) (Remedial Op., Breyer, J.); see also United States v. Awan, 607 F.3d

306, 312 (2d Cir. 2010) (“When finding facts relevant to sentencing for Guidelines

calculation purposes, the district court [is] required to use the preponderance of the evidence

standard.” (alteration in original; internal quotation marks omitted)).

2.     Evidence of Intent To Carry Out Threats

       Borker argues that the district court erred in applying a six-level enhancement in

calculating his Guidelines range on both § 875 counts of conviction because the record did

not show that either “offense involved any conduct evidencing an intent to carry out” his

threats. U.S.S.G. § 2A6.1(b)(1). We need not address the merits of this claim because even

if we were to resolve it in Borker’s favor, he would not be entitled to resentencing. The

district court clearly stated on the record that its sentence was not “going to be driven by the

guidelines.” Tr. 15:17–18, J.A. 289. Indeed, it stated that, regardless of whether the

                                               5
six-level enhancement under § 2A6.1(b)(1) applied, it would have imposed the same

48-month sentence because of “the nature of these threats,” “the sheer volume of them,” and

the fact that the threats were made as “part of a business model.” Tr. 15:24–16:1, J.A. 289.3

Thus, any § 2A6.1(b)(1) error was necessarily harmless. See United States v. Coppola, 671

F.3d 220, 251 & n.28 (2d Cir. 2012) (concluding that any error in Guidelines range

calculation would have been “harmless because the district court would certainly [have]

impose[d] the challenged sentence in any event”); United States v. Jass, 569 F.3d 47, 68 (2d

Cir. 2009) (holding error harmless where record indicated clearly that district court would

nevertheless have imposed same sentence).

3.     Loss Amount

       Borker claims that, because the district court erred in calculating a total loss amount

of between $30,000 and $70,000 on the mail and wire frauds, it incorrectly applied a

six-level Guidelines enhancement under U.S.S.G. § 2B1.1. “In calculating the amount of

loss under the Guidelines, a sentencing court ‘need only make a reasonable estimate of the

loss.’” United States v. Rigas, 583 F.3d 108, 120 (2d Cir. 2009) (quoting U.S.S.G. § 2B1.1

cmt. n.3(C)); see United States v. Bryant, 128 F.3d 74, 75 (2d Cir. 1997) (“[T]he Guidelines

do not require that the sentencing court calculate the amount of loss with certainty or

precision.”). Thus, our review of the district court’s loss calculation is limited to determining

whether its “method of calculating the amount of loss was legally acceptable,” United States


       3
        The record belies Borker’s argument that the district court failed to justify its
imposition of the same sentence irrespective of the Guidelines.

                                               6
v. Rutkoske, 506 F.3d 170, 178 (2d Cir. 2007) (internal quotation marks omitted), and

whether its factual determinations were clearly erroneous, see United States v. Brennan, 395

F.3d 59, 74 (2d Cir. 2005). Here, after reviewing the parties’ submissions on loss, the district

court credited the government’s position that adding together the amount of money that each

individual victim of Borker’s fraud lost yielded a total loss amount between $30,000 and

$70,000. We have no basis to question that calculation, and we conclude that the district

court’s estimate was reasonable. See U.S.S.G. § 2B1.1 cmt. n.3(A)(i) (defining “[a]ctual

loss” to mean “reasonably foreseeable pecuniary harm that resulted from the offense”).

       In urging otherwise, Borker relies on district court statements questioning whether all

of the victims’ losses derived from fraud. See United States v. Rutkoske, 506 F.3d at 179

(stating that “loss must be the result of the fraud” (internal quotation marks omitted)). Such

statements, however, did not preclude the district court from subsequently determining that

the loss amounts derived from fraud, especially in light of its finding, made after the

statements highlighted by Borker, that Borker operated a “business model that included

defrauding people with repairs and also with respect to new glasses.” Tr. 19:13–14, J.A. 290;

see also U.S.S.G. § 2B1.1 cmt. n.3(C) (stating that “sentencing judge is in a unique position

to assess the evidence and estimate the loss based upon that evidence” and thus “court’s loss

determination is entitled to appropriate deference”).

       Insofar as Borker argues that restocking fees were not properly included in a

calculation of loss attributable to fraud because he disclosed them on his website, the district

court did not clearly err in concluding otherwise. The district court could appropriately have

                                               7
considered as loss even disclosed restocking fees that customers paid only as a result of their

fraudulent inducement to purchase merchandise that was defective or counterfeit. See

U.S.S.G. § 2B1.1 cmt. n.3(C); PSR ¶ 19 (discussing Borker’s fraudulent claim that all “items

are 100% brand new and [a]uthentic, direct from manufacturer” and “come complete with

certificate of authenticity”). In any event, given the small amount attributable to restocking

fees, their exclusion from the total amount of loss would not have reduced the district court’s

estimated loss amount of between $30,000 and $70,000. Thus, any error by the district court

in considering the restocking fees as loss would be harmless. See United States v. Coppola,

671 F.3d at 251 & n.28.

4.     Restitution

       Borker argues that the district court incorrectly included restocking fees and charges

ultimately refunded to victims in its calculation of restitution. See 18 U.S.C. § 3663A.

Borker did not object to the amount of restitution before the district court, and thus we review

his claim only for plain error, which we do not identify here. See United States v. Marcus,

130 S. Ct. 2159, 2164 (2010) (stating plain error exists where (1) there is error that (2) is

clear or obvious, (3) affects substantial rights, and (4) seriously affects the fairness, integrity,

or public reputation of judicial proceedings).

       The district court ordered Borker to pay $46,146.23 in restitution, an amount it

derived from GX-7-REV. That exhibit shows that the government did not include money

refunded to victims in its calculation of the restitution amount, and Borker has offered no

evidence to the contrary. Moreover, for the reasons discussed in section 3, supra, the district

                                                 8
court could have appropriately considered the restocking fees as loss for which Borker owed

restitution. Thus, we identify no error, let alone plain error, in calculating the amount of

restitution. See United States v. Rossi, 592 F.3d 372, 376 (2d Cir. 2010) (stating that

calculating restitution “requires a delicate balancing of diverse, sometimes incomparable,

factors” and thus “it makes little sense for an appellate court, significantly more removed

from the case than the district court, to scrutinize the decision closely” (alterations and

internal quotation marks omitted)).

       We have considered Borker’s remaining arguments and conclude that they are without

merit. The judgment of the district court is AFFIRMED.



                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




                                             9
