United States v. Yakov Drabovskiy , 435 F. App'x 319 ( 2011 )

Case: 10-30297 Document: 00511515806 Page: 1 Date Filed: 06/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 21, 2011
No. 10-30297
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
YAKOV G. DRABOVSKIY,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:09-CR-146-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Yakov G. Drabovskiy appeals his sentences following his convictions on 20
counts of failure to depart in violation of 8 U.S.C. § 1253(a)(1)(B). The district
court sentenced him within his advisory Guidelines range to concurrent terms
of 78 months of imprisonment and three years of supervised release for each
count. Drabovskiy contends that his sentence is substantively unreasonable.
He does not challenge his sentence for procedural error.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-30297 Document: 00511515806 Page: 2 Date Filed: 06/21/2011
No. 10-30297
The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Drabovskiy contends that his sentence did not adequately account for the fact
that he was originally admitted to the United States as a refugee from the
former Soviet Union and that his instant criminal behavior was motivated by his
genuine fear that he would be killed based on his religion if removed to Russia.
Noting that he already had been detained in the custody of the United States
Immigration and Customs Enforcement for about 36 months because of the same
conduct that led to his instant criminal convictions, he argues that his sentence
should be reduced by 36 months, which would result in a 42-month sentence that
he contends would constitute appropriate punishment and serve as adequate
deterrence. Drabovskiy also asserts that his criminal history consisted only of
offenses involving the writing of fraudulent prescriptions and that he posed little
risk of recidivism because he no longer possessed a medical license.
“[T]he sentencing judge is in a superior position to find facts and judge
their import under [18 U.S.C.] § 3553(a) with respect to a particular defendant.”
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). “The
fact that the appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.”
Gall, 552 U.S. at 51. Drabovskiy’s sentence is presumed reasonable because it
was within his Guidelines range, see United States v. Diaz, 637 F.3d 592, 603
(5th Cir. 2011), and Drabovskiy has not shown sufficient reason for this court to
disturb that presumption.
AFFIRMED.
2