     13-2204-cr
     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 17th day of September, 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-cr
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

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 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   AFFIRMED.
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 used account information stolen
23   from credit-card holders in the United States to purchase
24   merchandise that was ultimately shipped to various locations
25   in Eastern Europe.
26
27        At sentencing, the district court accepted the
28   Government’s request for two two-level enhancements to the
29   base offense level of 16, finding that Breynin’s offense
30   involved “trafficking of any unauthorized access device[s],”
31   U.S.S.G. § 2B1.1(b)(11)(B)(I), and that “a substantial part
32   of [the] scheme was committed from outside the United
33   States,” U.S.S.G. § 2B1.1(b)(10)(B). The resulting offense
34   level was 20, and the Guidelines range was 33 to 41 months’
35   imprisonment. Absent these enhancements, the Guidelines
36   range would have been 21 to 27 months.
37
38        Breynin’s appeal raises close questions as to whether
39   these enhancements were imposed in error. To avoid making
40   new law, we remanded the case pursuant to the procedure
41   outlined in United States v. Jacobson, 15 F.3d 19, 22 (2d
42   Cir. 1994), to solicit the district court’s view as to
43   whether it would have imposed the same sentence regardless
44   of the disputed enhancements. Cf. Tr. of Sentencing, at 61,
45   May 29, 2013 (“I think I’d end up giving the same sentence
46   no matter how the [G]uidelines came out in this case.”). An
47   affirmative answer would obviate the need for us to rule on

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 1   Breynin’s procedural challenges by rendering any procedural
 2   error “harmless.” See United States v. Jass, 569 F.3d 47,
 3   68 (2d Cir. 2009).
 4
 5        Our summary order issued April 23, 2014; Judge Cogan
 6   issued a responsive order the next day.1 That order stated
 7   clearly that “[t]he issue did not make a difference in the
 8   determination of the sentence.” 11-cr-471 (BMC), ECF No. 60
 9   (Apr. 24, 2014).
10
11        Given that any procedural error that might have
12   occurred can now be deemed harmless, see Jass, 569 F.3d at
13   68, the only issue remaining is whether the 24-month
14   sentence imposed is substantively reasonable. We hold that
15   it is.
16
17        “In reviewing [a sentence] for substantive
18   reasonableness, we consider the totality of the
19   circumstances, and reverse only in exceptional cases where
20   the trial court’s decision cannot be located within the
21   range of permissible decisions.” United States v. Mason,
22   692 F.3d 178, 181 (2d Cir. 2012) (citation and internal
23   quotation marks omitted). The standard “provide[s] a
24   backstop for those few cases that [would] damage the
25   administration of justice because the sentence imposed was
26   shockingly high, shockingly low, or otherwise unsupportable
27   as a matter of law.” United States v. Rigas, 583 F.3d 108,
28   123 (2d Cir. 2009).
29
30         Absent the disputed enhancements, the Guidelines range
31   would have been 21 to 27 months--Breynin’s 24-month sentence
32   is squarely in the middle of that range. There is no
33   presumption that a sentence within the Guidelines range is
34   reasonable; but “in the overwhelming majority of cases, a
35   Guidelines sentence will fall comfortably within the broad
36   range of sentences that would be reasonable in the
37   particular circumstances.” United States v. Fernandez, 443
38   F.3d 19, 27 (2006). Here, the district court acknowledged
39   Breynin’s ailments and his persecution in his home country
40   of Uzbekistan. Nonetheless, the district court found that
41   these did little to mitigate Breynin’s participation in a


         1
              Judge Cogan’s order directed that we receive a
     copy of it. Our receipt of that order was delayed until
     August 28, 2014, for reasons outside the district court’s
     control.
                                  3
 1   serious offense and his willingness to involve his minor son
 2   in it. Based on our review of the record, and fairly taking
 3   into account Breynin’s lengthy, substantial involvement in
 4   this complex and damaging conspiracy, we cannot conclude
 5   that the district court’s sentence of 24-months is
 6   substantively unreasonable.
 7
 8        For the foregoing reasons, and finding no merit in
 9   Breynin’s other arguments, we hereby AFFIRM the judgment of
10   the district court.
11
12
13                              FOR THE COURT:
14                              CATHERINE O’HAGAN WOLFE, CLERK
15




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