                                           NOT PRECEDENTIAL



         UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                 _______________

                       No. 14-1068
                    ________________

            UNITED STATES OF AMERICA

                             v.

                 SERGEY BOLTUTSKIY

         Siarhei Baltutski a/k/a Sergey Boltutskiy,
                                                 Appellant

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
              (D.C. No. 2-11-cr-00553-001)

        District Judge: Honorable Paul S. Diamond
                      _____________

     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                   November 17, 2015

Before: AMBRO, HARDIMAN and SLOVITER, Circuit Judges.

             (Opinion filed: December 7, 2015)
                                   ______________________

                                          OPINION
                                   ______________________

       SLOVITER, Circuit Judge.

       Sergey Boltutskiy appeals a final judgment of the District Court sentencing him to

180 months in prison for conspiring to illegally export night vision devices to Belarus.

Boltutskiy argues that the harshness of his sentence is unsupported by the factual record

and that his sentence is unreasonably disproportionate when compared to sentences

imposed in similar cases.

       We will affirm. The record contains ample support for the findings that the

District Court relied upon in sentencing Boltutskiy. Moreover, he has not carried his

burden to show that his sentence is unreasonably disproportionate.1

                                             I.

       A grand jury indicted Boltutskiy for conspiring with seven others to export night

vision devices to Belarus and for laundering money to facilitate the illegal sale of these


  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  Our decision to affirm obviates the need to consider Boltutskiy’s argument that, if we
were to remand for resentencing, we should assign this case to a different judge.
Nevertheless, we note that there is no merit to Boltutskiy’s argument that he was treated
unfairly by the District Court. Although at times the Court may have expressed
frustration with Boltutskiy’s counsel, “judicial remarks during the course of a trial that
are critical or disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.” Liteky v. United States, 510 U.S.
540, 555 (1994).

                                                  2
devices. These devices make weapons more accurate at night. Because the ability to

shoot weapons accurately in the dark poses a serious threat to the military, it is illegal to

export night vision devices without first obtaining a license. See, e.g., 22 U.S.C. § 2778.

Boltutskiy admitted to exporting night vision devices, but claimed that his purpose for

doing so was to sell the devices to his Belarussian acquaintances who hunt pigs. The

Government’s investigation, however, uncovered evidence showing that Boltutskiy had

facilitated or attempted to facilitate at least $749,000 in illegal sales, and that these sales

were not limited to Belarussian acquaintances. This evidence included email

correspondence with a prospective buyer in Russia who explained that he needed a night

vision device for a Russian security service.

       Boltutskiy eventually pleaded guilty to charges that he conspired to illegally

export night vision devices in violation of 18 U.S.C. § 317 and 50 U.S.C. § 1705, and

further, that he conspired to commit money laundering in violation of 18 U.S.C.

§ 1956(h).

       Prior to sentencing, the U.S. Probation and Pretrial Services Office prepared a

Presentence Investigation Report (“PSR”) in which it concluded that Boltutskiy’s base

level sentencing range was 108 to 135 months. In arriving at this conclusion, the Pretrial

Services Office applied a four-level upward adjustment because it found that Boltutskiy

was responsible for organizing and leading the conspiracies for which he was convicted.

       Boltutskiy objected to the PSR on several grounds. First, he maintained that he

had exported the night vision devices solely for hunting purposes. Second, he denied the

                                                   3
Government’s characterization of him as an international arms dealer. Third, he

disclaimed knowledge of actions taken by his alleged co-conspirators. For its part, the

Government requested that the District Court add three offense levels, which would result

in a range of 151 to 188 months.

        The District Court held an evidentiary hearing in advance of sentencing. At the

hearing, the Government opposed Boltutskiy’s objections to the PSR with testimony from

several witnesses: (1) a U.S. Army Colonel, who testified as an expert about the security

and safety threats posed by night vision devices; (2) a co-conspirator, who provided

details about the conspiracy and Boltutskiy’s role in leading it; and (3) a Special Agent

with the Department of Homeland Security, who discussed evidence from the

investigation into Boltutskiy’s crimes. At Boltutskiy’s request, the Court continued the

hearing to allow him further time to call rebuttal witnesses.

        When the hearing resumed, Boltutskiy presented testimony from the following

witnesses: (1) friends from Belarus, who testified about their use of night vision devices

while hunting; (2) an expert in night vision devices, who opined that the various devices

sold by Boltutskiy would not be optimal for combat; and (3) Boltutskiy himself, who

reiterated that pig hunting was the only purpose for which he intended the devices to be

used.

        At the close of the hearing, the Court overruled Boltutskiy’s objections to the PSR,

granted the Government’s request for an upward variance, and sentenced Boltutskiy to

180 months in prison. In doing so, the Court emphasized the national security threat

                                                 4
created by the illegal export of night vision devices, Boltutskiy’s lack of remorse, and the

need for deterring conduct that jeopardizes the safety of American service members. The

Court later issued a detailed order restating and elaborating on the reasons for its

decision.

       Boltutskiy timely appealed.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                            III.

       Boltutskiy’s first argument is that the Court should not have adopted the PSR’s

recommendation that he receive an upward adjustment for his role in leading the money

laundering conspiracy. According to Boltutskiy, the Court never engaged in fact finding

regarding whether he led the money laundering conspiracy; instead, he claims, the Court

found only that he led the conspiracy to export night vision devices.

       Boltutskiy concedes that he did not raise this issue before the District Court, and

thus that we must review it for plain error. “Under this standard we must find that (1) an

error was committed, (2) the error was plain, i.e., clear or obvious, and (3) the error

affected the defendant’s substantial rights.” United States v. Knight, 266 F.3d 203, 206

(3d Cir. 2001).

       This argument fails under the first prong of the plain error test because the District

Court did not err. Contrary to Boltutskiy’s claim, the Court did in fact make findings on

                                                   5
the record about his role in the conspiracy and then based the upward adjustment on those

findings. It applied a four-level upward adjustment, concluding that “the Government

proved beyond a preponderance that Defendant headed the conspiracy.” App. at 16.

Although the Court did not initially specify the particular conspiracy to which it was

referring, it continued: “The Government presented credible evidence that Defendant

directed co-conspirators Yasev, Osin, Shapakovsky, Belski, Tsishuk, Stashynski, and

Dubouskaya to purchase and export devices, and to transfer or wire funds to pay for the

devices.” App. at 16 (emphases added). Moreover, Boltutskiy’s role in leading the

money laundering scheme was among the reasons cited in the PSR for recommending the

upward adjustment: “[t]he defendant provided money for the purchase of items, shipping

fees, and commission fees for other participants . . . [and] directed others regarding what

items should be purchased and how much money should be spent on the purchase of

devices.” PSR ¶ 57. By adopting the PSR’s recommendations, the Court adopted its

findings and based the upward adjustment on Boltutskiy’s role in leading the money

laundering conspiracy.

                                           IV.

       Boltutskiy’s second argument is that Court’s imposition of a substantial upward

variance was erroneous because it was based on unsupported factual findings. The

Court’s decision to impose an upward variance was based largely on three particular

factual findings: (1) Boltutskiy exported a very large number of night vision devices; (2)

the scope of his involvement in the conspiracy was broad; and (3) the conspiracy posed

                                                 6
serious safety and national security threats. Boltutskiy argues that these three findings

are unsupported by the record.

       We review the District Court’s factual findings for clear error. United States v.

Jacobs, 167 F.3d 792, 797 (3d Cir. 1999) (“Factual findings in relation to sentencing

issues are reviewed for clear error.”). This standard of review is highly deferential and

permits reversal only where the factual findings at issue are “completely devoid of

minimum evidentiary support displaying some hue of credibility” or are without “rational

relationship to the supportive evidentiary data.” United States v. Antoon, 933 F.2d 200,

204 (3d Cir. 1991) (quoting Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972)).

Here, the Government had the burden at sentencing to prove any disputed fact by a

preponderance of the evidence. See United States v. Grier, 475 F.3d 556, 568 (3d Cir.

2007). As discussed below, the District Court’s factual findings were not clearly

erroneous.

                                            A.

       The first factual finding that Boltutskiy disputes is that the number of devices he

illegally exported was “very large.” App. at 21. He claims that the record does not

support this characterization, and further, that the District Court was wrong when it stated

that he exported “hundreds” of devices. Appellant’s Br. at 29-30. He also argues that the

Court erred by holding him responsible for “all” of the actions taken by his co-

conspirators, as opposed to just those actions that were “reasonably foreseeable” in light

of the conspiracy. Appellant’s Br. at 31-35.

                                                 7
       The Court’s finding was not clearly erroneous. When Boltutskiy pleaded guilty,

he admitted the factual basis for the plea, which included the statement that he “conspired

with fellow Belarussians to purchase and illegally export a large number of high-tech

night-vision devices with military applications.” Supp. App. at 9 (emphasis added). One

of his co-conspirators testified that he shipped “[b]etween 75 and 100” night vision

devices to Boltutskiy. App. at 133. Special Agent Zuchman provided testimony

concerning itemized lists of specific sales that Boltutskiy was responsible for facilitating

as part of the conspiracy. These lists include over a hundred devices collectively worth

hundreds of thousands of dollars that Boltutskiy and/or his co-conspirators sold or

attempted to sell. The Court found this evidence credible and additionally noted that, by

pleading guilty to the conspiracy, Boltutskiy became responsible for the actions of his co-

conspirators. Although it may have been an exaggeration to characterize the number of

devices as in the “hundreds,” the Court on two occasions during the hearing

acknowledged that this number was likely in the “dozens.” See App. at 195 (“Dozens, I

will say dozens of these weapons.”); 196-97 (“[W]hen I said hundreds, I misspoke. I will

say dozens.”). But even if it was erroneous to occasionally mention “hundreds” of

devices, such a mistake is not a clear factual error that merits reversal under our

deferential standard of review.

       Finally, contrary to Boltutskiy’s claim, the Court did not hold him responsible for

“all” his co-conspirators’ actions. Rather, in accordance with the Supreme Court’s

decision in Pinkerton v. United States, 328 U.S. 640 (1946), the District Court made clear

                                                 8
that Boltutskiy was responsible for the “reasonably foreseeable” consequences of the

conspiracy. App. at 14-15 (quoting United States v. Ramos, 147 F.3d 281, 286 (3d Cir.

1998)). In sum, the Court’s finding that Boltutskiy shipped a “very large” number of

night vision devices is not clearly erroneous.

                                            B.

       The second factual finding that Boltutskiy disputes is that he could be fairly

characterized as an “international arms dealer.” App. at 20. According to the Court, this

characterization is warranted because Boltutskiy purchased numerous night vision

devices, arranged for their illegal export, wired money internationally, and facilitated

sales of these devices in foreign countries. Boltutskiy claims the record does not support

the finding that he was an international arms dealer.

       The Court did not clearly err in so characterizing Boltutskiy. His argument to the

contrary boils down to a dispute over whom the Court should have believed: Boltutskiy,

who claimed he was exporting night vision devices for pig hunting; or the Government,

who claimed he was exporting them for the broader purpose of profiting off the

international black market. The Court plainly believed the Government, finding that it

“presented considerable evidence to refute Defendant’s absurd contention that he

knowingly broke federal law and smuggled out three quarters of a million dollars in

military grade, export-controlled hardware solely so he and his friends could sport hunt.”

App. at 18 (emphasis in original).



                                                 9
       Ample evidence supports this factual finding. First, Boltutskiy pleaded guilty to

knowingly violating federal law by exporting a large number of “night vision devices

with military applications.” Supp. App. at 9. Second, the Government’s expert witness,

Colonel McDonnell, provided testimony undercutting Boltutskiy’s claim that the devices

at issue would have been inappropriate for use in combat. Third, the Government

presented emails exchanged between Boltutskiy and vendors in foreign countries other

than Belarus showing that his export scheme was not limited to his friends. For example,

Boltutskiy corresponded with a prospective Russian customer who stated, “I don’t know

you.” Supp. App. at 77. He also corresponded with a prospective Russian customer who

explained that he needed a particular device for “one of the support units of the CK,” a

term that refers to a Russian security service. App. at 358.

       This evidence does not lose its persuasive weight merely because of testimony

from Boltutskiy’s expert, Dr. Ostromek, who testified that many of the night vision

devices at issue were dual use items, i.e., designed for both military and non-military

uses. The fact that the devices could be used for hunting does not eliminate the security

risk posed by the fact that they could also be used in combat. As such, the Court’s

characterization of Boltutskiy as an international arms dealer is not clearly erroneous.

                                            C.

       The third finding that Boltutskiy disputes is that his conspiracy to illegally export

night devices posed a serious threat to our national security. The District Court found



                                                 10
that “serious harm . . . could result from the [night vision] devices falling into the hands

of individuals whose interests are inimical to those of the United States.” App. at 21.

       The record contains extensive support for the Court’s finding regarding national

security. As Colonel McDonnell explained, the safety and efficacy of U.S. military

operations depend on its superior night vision technology, which is one of its greatest

tactical advantages. He expressed three concerns: “The first is that the devices fall into

the hands of the enemies and they’re used against our troops. Secondly is that

countermeasures are developed to defeat the capabilities of the devices. And third is that

the devices are taken apart, reverse engineered and then mass produced.” App. at 76. As

Special Agent Zuchman put it, “night vision devices, in the hands of the wrong people,

take away the greatest capability of the Armed Forces of the U.S.” App. at 174.

       In seeking to undermine this evidence, Boltutskiy identifies particular features of

the night vision devices at issue and argues that these features would make the devices

useless in combat. For example, his expert, Dr. Ostromek, testified that the night vision

devices at issue reflect light off their lenses and give off a traceable electronic signal.

According to Boltutskiy, these features would dissuade hostile forces from using the

devices in combat.

       But even Dr. Ostromek acknowledged that, at a minimum, certain of these

particular night vision devices would be better than having no devices at all. He also

acknowledged that, at a minimum, they would be useful to adversaries lacking

sophisticated night vision technology because the devices could be reverse engineered.

                                                  11
More importantly, the Court found Dr. Ostromek’s testimony only partially credible. For

example, the Court did not credit his testimony that the “monocular” night vision devices

involved in the conspiracy would be useless to enemy combatants. App. at 333 (“I

simply don’t credit Dr. O[stromek]’s testimony that people use these monoculars simply

to figure out where they are. I think they help them find targets whether they’re mounted

on guns or not.”). Accordingly, the Court’s finding that Boltutskiy’s conspiracy

presented a safety and security threat was not clearly erroneous.2

                                            V.

       Boltutskiy’s third argument is that his 180-month sentence is disproportionately

harsh, and thus, that it violates the principle that courts should “avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty

of similar conduct.” 18 U.S.C. § 3553(a)(6). In support, he directs us to cases from a

document published by the U.S. Department of Justice that showcases success stories in

apprehending international smugglers, spies, and thieves.

       To demonstrate an unreasonable sentencing disparity, Boltutskiy must carry the

heavy burden of showing that his circumstances “exactly” paralleled the circumstances at

2
  There is no merit to Boltutskiy’s related legal argument that the District Court could not
rely on this safety and security threat in imposing an upward variance. It is true that the
threat was already “built in” to the base level range. Appellant’s Br. at 43-44 (citing
U.S.S.G. § 2M5.2, Note 1). This, however, does not preclude the Court from giving
further consideration to the sentencing factors under 18 U.S.C. § 3553(a). See Koon v.
United States, 518 U.S. 81, 96 (1996) (noting that district courts can rely on factors
already taken into account by the Guidelines if the factors are present in an “exceptional
degree” or the case is otherwise “different from the ordinary case”).

                                                 12
issue in other cases involving disparately lenient sentences. United States v. Charles, 467

F.3d 828, 833 n.7 (3d Cir. 2006). We “should not consider sentences imposed on

defendants in other cases in the absence of such a showing by a party.” United States v.

Vargas, 477 F.3d 94, 100 (3d Cir. 2007), abrogated on other grounds by United States v.

Arrelucea-Zamudio, 581 F.3d 142, 149 (3d Cir. 2009).

       Boltutskiy has not carried his burden to show that his sentence is unreasonably

disproportionate. Although his sentence is indeed harsh when compared to the cases he

cites from the DOJ document, he has not shown that any of these cases are “exactly

parallel” to his. For example, he cites a case where the defendant was convicted of

violating a statute carrying a maximum penalty of twenty years. See Appellant’s Br. at

56 (citing United States v. Assi, 428 F. App’x 570, 571 (6th Cir. 2011) (discussing

penalty imposed under 18 U.S.C. § 2339B)). In contrast, Boltutskiy was convicted of

violating three statutes that collectively carry a maximum penalty of forty-five years.

Moreover, several of the specific cases he cites involve defendants who appear to have

been apprehended before succeeding in their attempts to export prohibited technology,

whereas in this case, Boltutskiy was found to have actually exported numerous night

vision devices. And, as the Government points out, the base level sentencing range

proposed by the Pretrial Services Office in this case—i.e., before any upward variance—

is higher than all but one of the sentences imposed in the specific cases cited by

Boltutskiy.



                                                13
       We will “tolerate statutory sentencing disparities” as long as the District Court

exercised its discretion reasonably and applied the Sentencing Guidelines correctly.

Charles, 467 F.3d at 833. For example, in United States v. Jimenez, 513 F.3d 62 (3d Cir.

2008), a defendant received a forty-month sentence. Id. at 90. On appeal, he argued that

his sentence was disproportionate in light of a similar case where the defendant received

a twelve-month sentence. Id. We affirmed his sentence and emphasized that the mere

citation of similar cases is not enough to demonstrate an unwarranted sentencing

disparity: “This is not, and cannot be, the law. Although a similar sentence might also be

reasonable here, that does not make [the defendant’s] sentence unreasonable.” Id. at 91.

In accordance with this authority, the District Court in this case regarded the Guidelines

as advisory, and then imposed Boltutskiy’s 180-month sentence after a meaningful

application of its discretionary authority to apply the § 3553(a) sentencing factors.

Boltutskiy’s sentence was not unreasonably disparate.

                                           VI.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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