United States v. Anton Alexander Martynenko ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4437
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Anton Alexander Martynenko
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: February 12, 2018
Filed: April 3, 2018
[Unpublished]
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Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
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PER CURIAM.
Anton Alexander Martynenko pled guilty to production of child pornography,
18 U.S.C. § 2251(a), (e) (Count 1), distribution of child pornography, 18 U.S.C.
§ 2252(a)(2), (b)(1) (Count 2), and advertisement of child pornography, 18 U.S.C.
§ 2251(d)(2)(B), (e) (Count 3). The district court1 sentenced Martynenko to 456
months imprisonment—360 months on Counts 1 and 3 to run concurrently and a
consecutive 120 months on Count 2, followed by a 24 month reduction in the
sentence for reasons not relevant to this appeal. Martynenko appeals his sentence.
For the reasons explained below, we affirm.
First, Martynenko argues the district court failed to explain his sentence
adequately. A district court "must adequately explain the chosen sentence to allow
for meaningful appellate review and to promote the perception of fair sentencing."
Gall v. United States, 552 U.S. 38, 50 (2007). It must be clear from the record that
the sentencing court actually considered the factors listed in 18 U.S.C. § 3553, but the
district court need not elaborate on each factor. See United States v. Hernandez, 518
F.3d 613, 616 (8th Cir. 2008). Failure to explain a sentence adequately is a
procedural error reviewed for plain error when, as here, there was no objection below.
United States v. Chavarria-Ortiz, 828 F.3d 668, 671 (8th Cir. 2016). Under plain
error review, the appellant must show "that a more detailed explanation would have
resulted in a lighter sentence." Id. Here, Martynenko does not even attempt to
demonstrate that he was prejudiced by the district court's limited discussion of the
reasons for his sentence. Thus, even assuming arguendo that the district court's
explanation was inadequate, Martynenko has shown no plain error.
Second, Martynenko argues the sentence is substantively unreasonable because
the district court gave too much weight to uncharged conduct and the sentence is not
"necessary." We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Zayas, 758 F.3d 986, 990 (8th Cir. 2014). "A district
court abuses its discretion when it (1) fails to consider a relevant factor that should
have received significant weight; (2) gives significant weight to an improper or
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
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irrelevant factor; or (3) considers only the appropriate factors but in weighing those
factors commits a clear error of judgment." United States v. Borromeo, 657 F.3d 754,
756 (8th Cir. 2011) (citation omitted). When a defendant fails to object to
consideration of an improper factor at sentencing, we review for plain error. United
States v. O'Connor, 567 F.3d 395, 397 (8th Cir. 2009). If a defendant does not object
to the facts in a presentence report, "the court may accept the facts as true and rely on
the unobjected-to facts" at sentencing. United States v. Douglas, 646 F.3d 1134,
1137 (8th Cir. 2011).
Here, because Martynenko did not object to the facts in the presentence report
that he now complains were irrelevant and unproven, it was not improper for the
district court to rely on them when analyzing the § 3553 factors. Id. Martynenko has
not demonstrated that consideration of those facts gave rise to an error that is plain,
that affected his substantial rights, and that "seriously affects the fairness, integrity
or public reputation of judicial proceedings." O'Connor, 567 F.3d at 397 (citation
omitted). In arguing that his sentence is not "necessary," Martynenko claims that the
United States Sentencing Guidelines treat child pornography offenses too harshly and
that it was an abuse of discretion to deny his request for a sentence below the
guideline range. Given the severity of Martynenko's conduct, we conclude that it was
not an abuse of discretion for the district court to reject his policy disagreements with
the guidelines and sentence him to 38 years—a sentence at the lower end of his
guideline range.
Third, Martynenko argues his sentence violates the Eighth Amendment's
prohibition of cruel and unusual punishment. "We review Eighth Amendment
sentencing challenges de novo." United States v. Meeks, 756 F.3d 1115, 1120 (8th
Cir. 2014). We first compare Martynenko's crime with his sentence; an Eighth
Amendment violation can be found only when this comparison "leads to an inference
of gross disproportionality." United States v. Johnson, 944 F.2d 396, 409 (8th Cir.
1991). In only "an extremely rare case" will a noncapital sentence be "so
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disproportionate to the underlying crime that [it] runs afoul of the Eighth
Amendment." Meeks, 756 F.3d at 1120 (quoting United States v. Baker, 415 F.3d
880, 882 (8th Cir. 2005) (second quotation)). Martynenko engaged in a four year
scheme to entice dozens of minor males to send him nude photographs on social
media, then to distribute those photographs to their acquaintances, blackmailing them
to send more. The victim impact statements demonstrate the devastating effect of the
crimes on their young lives, and two of his victims later committed suicide. The
presentence report describes uncharged relevant conduct to which Martynenko did
not object, including blackmailing minor victims into engaging in coerced sexual
acts. On these facts, a 38 year sentence does not give rise to an inference of gross
disproportionality, and we thus reject Martynenko's Eighth Amendment challenge.
The judgment is affirmed.
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