United States v. Nikomarova

15-2639
United States v. Nikomarova
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 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of July, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 REENA RAGGI,
8 DENNY CHIN,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 15-2639
16
17 GALA NIKOMAROVA,
18 Defendant-Appellant.
19
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21
22 FOR APPELLANT: LOUIS R. AIDALA, New York, NY.
23
24 FOR APPELLEE: KARL METZNER (Daniel C. Richenthal
25 and Michael A. Levy, on the brief),
26 Assistant United States Attorney,
27 for Preet Bharara, United States
1
1 Attorney for the Southern District
2 of New York, New York, NY.
3
4 Appeal from a judgment of the United States District Court
5 for the Southern District of New York (Forrest, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
8 DECREED that the judgment of the district court be AFFIRMED.
9
10 Gala Nikomarova appeals from the judgment of the United
11 States District Court for the Southern District of New York
12 (Forrest, J.) convicting her of (i) conspiracy to commit health
13 care and mail fraud, (ii) health care fraud, and (iii) bribery.
14 Nikomarova was sentenced principally to 18 months’
15 imprisonment, which Nikomarova challenges as unreasonable. We
16 assume the parties’ familiarity with the underlying facts, the
17 procedural history, and the issues presented for review.
18 1. Our review of the substantive reasonableness of a
19 sentence is “particularly deferential”: we will set aside
20 sentences as substantively unreasonable “only in exceptional
21 cases where the trial court’s decision cannot be located within
22 the range of permissible decisions”; that is, if the sentence
23 “shocks the conscience,” if it “constitutes a manifest
24 injustice,” or if “allowing [it] to stand would damage the
25 administration of justice.” United States v. Aldeen, 792 F.3d
26 247, 255 (2d Cir. 2015) (internal quotation marks omitted).
27 The district court had sound reasons for imposing a
28 custodial sentence of 18 months. Nikomarova was a significant
29 player in a years-long health care fraud that defrauded the
30 public of over $1 million. True, she cooperated with the
31 government and provided substantial assistance, for which she
32 received a 5K1.1 letter, but the weight to give this
33 cooperation, which consisted largely of assisting the
34 government in prosecuting her own clients, was a matter
35 committed to the district court’s sound discretion.
36 Nikomarova’s resulting sentence of 18 months’ imprisonment –
37 nearly six years below the bottom of her guidelines range – was
38 not outside the broad range of reasonable sentences available
39 to the district court in such circumstances. Thus, her
40 substantive unreasonableness claim fails on the merits.
2
1 2. We review a sentence for procedural reasonableness
2 under a “deferential abuse-of-discretion standard.” Gall v.
3 United States, 552 U.S. 38, 41 (2007). That means a district
4 court’s application of the Sentencing Guidelines is reviewed
5 de novo and its factual findings are reviewed for clear error.
6 United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011). A
7 sentence is procedurally unreasonable if the district court
8 “fails to calculate (or improperly calculates) the Sentencing
9 Guidelines range, treats the Sentencing Guidelines as
10 mandatory, fails to consider the § 3553(a) factors, selects a
11 sentence based on clearly erroneous facts, or fails adequately
12 to explain the chosen sentence.” Aldeen, 792 F.3d at 251
13 (quoting United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013)).
14 Nikomarova fails to demonstrate any procedural error. The
15 district court clearly stated that it considered the
16 government’s 5K1.1 letter and Nikomarova’s substantial
17 assistance in concluding that a below-guidelines sentence of
18 18 months’ imprisonment was sufficient but not greater than
19 necessary.
20 Accordingly, and finding no merit in Nikomarova’s other
21 arguments, we hereby AFFIRM the judgment of the district court.
22 FOR THE COURT:
23 CATHERINE O’HAGAN WOLFE, CLERK
24
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