     13-2204
     USA v. Breynin

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 23rd day of April, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-2204
16
17       ALEKSEY BREYNIN,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLEE:                         Amy Busa and Amanda Hector,
22                                             Assistant United States
23                                             Attorneys, Of Counsel, for
24                                             Loretta E. Lynch, United States
25                                             Attorney for the Eastern
26                                             District of New York, Brooklyn,
27                                             New York.
28

                                                  1
 1   FOR APPELLANT:             Colleen P. Cassidy, Of Counsel,
 2                              Federal Defenders of New York,
 3                              Inc., New York, New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Eastern District of New York (Cogan, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   REMANDED to the district court.
11
12        Aleksey Breynin appeals from a judgment of conviction
13   entered on June 24, 2013, sentencing him chiefly to 24
14   months’ imprisonment. He primarily challenges the district
15   court’s imposition of certain sentencing enhancements. We
16   assume the parties’ familiarity with the underlying facts,
17   the procedural history, and the issues presented for review.
18
19        On January 3, 2012, Breynin pleaded guilty to one count
20   of conspiracy to commit wire fraud, in violation of 18
21   U.S.C. § 1349, for his involvement in a multi-year scheme in
22   which he and co-conspirators in Eastern Europe used account
23   information stolen from credit card holders in the United
24   States to purchase merchandise that was ultimately shipped
25   to various locations in Eastern Europe.
26
27        At sentencing, the district court accepted the
28   Government’s request for two two-level enhancements to
29   Breynin’s U.S. Sentencing Guidelines base offense level of
30   16, finding that Breynin’s offense involved “trafficking of
31   any unauthorized access devices,” U.S.S.G. §
32   2B1.1(b)(11)(B)(I), and that “a substantial part of the
33   scheme was committed outside of the United States,” U.S.S.G.
34   § 2B1.1(b)(10)(B). Consequently, Breynin’s total offense
35   level was 20 and his Guidelines range was 33 to 41 months’
36   imprisonment. Absent these enhancements, the Guidelines
37   range would have been 21 to 27 months.
38
39        Breynin claims that these enhancements were imposed in
40   error. Of particular importance to this appeal is whether
41   the purchase of credit card numbers, without more, can be
42   considered “trafficking” in access devices within the
43   meaning of U.S.S.G. § 2B1.1(b)(11)(B)(i). Resolution of
44   this close question would require us to make new law, which
45   we are reluctant to do unless it would likely make a
46   difference in Breynin’s ultimate sentence. See United
47   States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (“Where we

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 1   identify procedural error in a sentence, but the record
 2   indicates clearly that the district court would have imposed
 3   the same sentence in any event, the error may be deemed
 4   harmless, avoiding the need to vacate the sentence and to
 5   remand the case for resentencing.”).
 6
 7        The district court acknowledged that the application of
 8   the contested enhancements was a “close call,” Tr. of
 9   Sentencing, at 60, May 29, 2013, but indicated that it was
10   inclined to impose a 24-month sentence regardless of whether
11   the enhancements applied. See id. at 61 (“I think I’d end
12   up giving the same sentence no matter how the [G]uidelines
13   came out in this case.”). Accordingly, we remand the case
14   pursuant to the procedure outlined in United States v.
15   Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), to solicit the
16   district court’s view as to whether it is confident that it
17   would impose the same sentence regardless of the disputed
18   enhancements. The district court may also conduct such
19   further sentencing proceedings as it deems appropriate.
20
21        The panel retains jurisdiction to hear Breynin’s appeal
22   once the district court has responded. We respectfully
23   invite the district court to act with celerity, at the
24   latest within seventy-five calendar days of the date of this
25   decision.
26
27        For the foregoing reasons, we hereby REMAND the case to
28   the district court. After the district court has made its
29   determination, either party may restore jurisdiction to this
30   Court by filing with the Clerk a letter (along with a copy
31   of the relevant order or transcript) advising the Clerk that
32   jurisdiction should be restored. The returned appeal will
33   be assigned to this panel and an additional notice of appeal
34   will not be needed.
35
36                              FOR THE COURT:
37                              CATHERINE O’HAGAN WOLFE, CLERK
38




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