                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1354




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                                                                  NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                        No. 06-1354

                             UNITED STATES OF AMERICA

                                             v.

                                  EVGUENI POJILENKO,
                                               Appellant


                        Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                              (D.C. Crim. No. 02-cr-00254-2)
                          District Court: Hon. R. Barclay Surrick


                      Submitted pursuant to Third Circuit LAR 34.1(a)
                                     January 8, 2007

                   Before: McKEE, AMBRO and FISHER, Circuit Judges.

                               (Opinion filed: April 17, 2007)


                                         OPINION


McKEE, Circuit Judge.

          Evgueni Pojilenko appeals his conviction on five counts charging RICO-

conspiracy, RICO-substantive offenses, extortion, possession with intent to distribute a

controlled substance and conspiracy to distribute. For the reasons that follow, we will

affirm.
       Inasmuch as we write primarily for the parties, we need not set forth a detailed

factual or procedural background. It is sufficient to note that Pojilenko disputes his

sentence based on the district judge’s failure to meaningfully consider new evidence of

his remorse and rehabilitation which occurred in the two year period between his original

sentencing and the re-sentencing hearing, ordered on remand from this Court in

accordance with United States v. Booker, 543 U.S. 220 (2005).

       Following the Supreme Court’s decision in Booker, it is clear that the Sentencing

Guidelines are advisory. Id. at 245. Moreover, given our post-Booker jurisprudence, it is

equally clear that the sentencing court may make factual determinations in applying the

Guidelines so long as the resulting sentence is reasonable and the sentencing factors set

forth at 18 U.S.C. § 3553(a) are given proper consideration. See United States v. Cooper,

437 F.3d 324, 329-30 (3d Cir. 2006).

       Our inquiry is therefore limited to determining if the sentencing court properly

considered the sentencing factors under § 3553(a); and if so, whether the resulting

sentence is reasonable.

              The question is not how we ourselves would have resolved
              the factors identified as relevant by §3553(a) . . . nor what
              sentence we ourselves ultimately might have decided to
              impose on the defendant.

Cooper, 437 F.3d at 330 (citation omitted). This is because the sentencing court is in the

best position to determine the appropriate sentence in light of the particular circumstances

of the case. See id. We must therefore decide whether the District Court imposed the


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sentence it did for reasons that are logical and consistent with the factors set forth in §

3553(a). Id. at 329.

       In imposing Appellant’s sentence, the District Court considered the Guidelines, but

clearly did not treat them as mandatory. Stating that the Guidelines suggest a sentence of

108 to 135 months, the Court nonetheless found that a lower sentence than originally

imposed was not appropriate given the seriousness of Appellant’s crimes, even after

considering “all factors.” The Court explained its concern for the protection of the public,

as well as the need to deter others from the “chilling” activities engaged in by Appellant

and the organization he was affiliated with, including a “brutal beating” and robbery of

one individual and the robbery of two others, as well as the possession with intent to

distribute controlled substances, among other things.

       “Although a within-guidelines range sentence is more likely to be reasonable than

one that lies outside the advisory guidelines range, a within-guidelines sentence is not

necessarily reasonable per se.” Cooper, 437 F.3d at 331. The resulting sentence of 168

months, although lengthy, was certainly not unreasonable. It is clear from the transcript

of the sentencing proceeding that the sentencing court properly applied § 3553(a), and

considered the factors the court deemed relevant to Appellant’s circumstances and

background, as well as the characteristics of the offense.

       Appellant suggests, without citation, that to meet the new reasonableness standard

under Booker, a sentencing judge should be required to consider current information on

the factors listed in § 3553(a). He points out that his Presentence Report was not updated

                                               3
to reflect new information reflecting his newfound remorse and the steps he was taking to

obtain his G.E.D. Nonetheless, Appellant was permitted to present this information to the

Court through Appellant’s Sentencing Memorandum and its accompanying exhibits that

contained eleven letters regarding his good character, a letter from Appellant expressing

his remorse, and a letter from a psychologist who interviewed Appellant during his

incarceration and concluded that Appellant had accepted responsibility for his crimes.

After listening to an oral presentation by Appellant’s counsel and his proffer of the

Memorandum, the judge indicated: “I have read that memorandum and I have read all of

the exhibits that were attached to it.”

       Appellant claims that there is no evidence that the judge gave consideration to the

recent, relevant information about Appellant’s history and characteristics. That claim is

inconsistent with the record. While the judge did not directly address the new evidence of

remorse and rehabilitation when imposing sentence, he did indicate that he had read the

materials presented by Appellant, that he understood the guidelines suggested a sentence

of between 108 to 135 months, and that “all factors being considered,” in light of the

seriousness of Appellant’s crimes he was compelled to impose the original sentence.

       Having reviewed the record as a whole, we conclude that the Court adequately

considered the § 3553(a) factors and reasonably applied them to the circumstances here.

We therefore find the sentence was reasonable.

       For the reasons set forth above, we will affirm the judgment of sentence.



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