United States v. Voloshin

14-4364-cr
United States v. Voloshin
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 ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 4th day of March, two thousand sixteen.
PRESENT:
RALPH K. WINTER,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges,
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 14-4364-cr
JOHN VOLOSHIN,
Defendant-Appellant.
_____________________________________
For Appellee: DAVID T. HUANG, for Deirdre M. Daly,
United States Attorney for the District of
Connecticut, New Haven, CT.
For Defendant-Appellant: LAWRENCE GERZOG, New York, New York.
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Appeal from a judgment of the United States District Court for the District of
Connecticut (Chatigny, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant John Voloshin appeals from that provision of a judgment
sentencing him to a term of supervised release for violating his original term of supervised
release. We assume the parties’ familiarity with the underlying facts and the procedural history
of this case.
A sentence imposed for a supervised release violation is reviewed for reasonableness,
United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005), both substantive and procedural,
United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007). “Reasonableness review is
similar to review for abuse of discretion and may require reversal when the district court’s
decision ‘cannot be located within the range of permissible decisions’ or is based on a legal error
or clearly erroneous factual finding.” Villafuerte, 502 F.3d at 206 (quoting United States v.
Sindima, 488 F.3d 81, 85 (2d Cir. 2007)).
When, as here, a defendant fails to object to a purported sentencing error, we review for
plain error. Id. at 208. Reversal for plain error should “be used sparingly, solely in those
circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady,
456 U.S. 152, 163 n.14 (1982).
On appeal, Voloshin contends that the 27-month term of supervised release is
procedurally and substantively unreasonable. As for procedural reasonableness, Voloshin argues
that the district court did not provide any reasons for imposing a term of supervised release.
“[T]he law in this circuit is well established that, in the absence of record evidence suggesting
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otherwise, we presume ‘that a sentencing judge has faithfully discharged her duty to consider the
statutory factors.’” United States v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008) (quoting
United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006), abrogated on other grounds by Rita
v. United States, 551 U.S. 338 (2007)). Voloshin does not point to any record evidence to rebut
this presumption, and we have “declined to prescribe any ‘specific verbal formulations . . . to
demonstrate the adequate discharge of the duty to ‘consider’ matters relevant to sentencing.’” Id.(quoting United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005)). The record evidence,
moreover, demonstrates that the court was aware of, and considered, the relevant statutory
factors set forth in 18 U.S.C. §§ 3583 and 3553(a).
Voloshin argues that his supervised release term is substantively unreasonable for two
reasons. First, he asserts that the only risk of recidivism is “because of the imposition of an
additional term of supervised release,” i.e., “[t]here is only a risk of further reporting violations
so long as such reporting requirements exist.” Blue at 10 (emphasis in original). Voloshin offers
no case law or other legal support for this position. Indeed, 18 U.S.C. § 3583(c) required the
district court to consider the factor set forth in 18 U.S.C. § 3553(a)(2)(C): “the need for the
sentence imposed . . . to protect the public from further crimes of the defendant.” As
demonstrated by the nature of Voloshin’s supervised release violation, the risk of recidivism, and
therefore the potential harm to the public, was considerable.
Second, Voloshin argues that his sentence was substantively unreasonable because his
supervised release violation bore no relation to his original crime of conviction. We are not
persuaded. “Though supervised release is ‘part of the penalty for the initial offense,’ . . . the
imposition of supervised release and the sanctions for violation are authorized by a statute and
Guidelines scheme that is separate from the regime that governs incarceration for the original
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offense, . . . and the supervised release scheme serves purposes distinct from the goals of the
original punishment[.]” United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005) (quoting
Johnson v. United States, 529 U.S. 694, 700 (2000)). In other words, the punishment “that
ensues from revocation is partly based on new conduct, is wholly derived from a different
source, and has different objectives altogether; it is therefore a different beast.” Id. The district
court was not required to draw any connection to the original offense when it imposed an
additional term of supervised release.
Voloshin also challenges imposition of the condition that he not engage in the purchase
or sale of real estate without prior approval from the probation office. We review challenges to
conditions of supervised release for abuse of discretion. United States v. MacMillen, 544 F.3d
71, 74 (2d Cir. 2008). Sentencing courts may impose conditions that are “reasonably related” to
the nature and circumstances of the offense, the history and characteristics of the defendant, the
need for deterrence, the need to protect the public from further crimes of the defendant, and the
need to provide the defendant with training, medical care, or other correctional treatment. 18
U.S.C. § 3583(d); U.S.S.G. § 5D1.3(b); United States v. Myers, 426 F.3d 117, 124 (2d Cir.
2005). A condition need only be reasonably related “‘to any one or more of the specified
factors.’” Myers, 426 F.3d at 124 (quoting United States v. Abrar, 58 F.3d 43, 46 (2d Cir.
1995)). Voloshin’s underlying conviction involved fraud relating to real estate. He violated his
supervised release by creating false documents and making misrepresentations in relation to a
fake employment opportunity in a real estate investment firm. The challenged condition was
thus reasonably related to the nature and circumstances of the offense and Voloshin’s history and
characteristics, as further demonstrated by his supervised release violation.
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We have considered all of Voloshin’s arguments and conclude that they are without
merit. We therefore AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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