United States v. Rybner

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-23-2008
USA v. Rybner
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3156
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Recommended Citation
"USA v. Rybner" (2008). 2008 Decisions. Paper 500.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/500
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3156
UNITED STATES OF AMERICA
v.
ANATOLY RYBNER
a/k/a TONY
Anatoly Rybner,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 06-cr-00779-1)
District Judge: The Honorable Katharine S. Hayden
Submitted Under Third Circuit LAR 34.1(a)
September 9, 2008
BEFORE: SLOVITER, FUENTES, and NYGAARD, Circuit Judges.
(Filed: September 23, 2008)
OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties
and the District Court are familiar with its operative facts, we offer only an abbreviated
recitation to explain why we will affirm the order of the District Court.
While awaiting sentencing for a bank fraud scheme to which he pleaded guilty,
Anatoly Rybner committed more fraud and other crimes. He received a forty-six month
sentence for the first round of fraud, and eventually entered into a second plea agreement
for the later crimes. In the second agreement, he pleaded guilty to one count of bank
fraud and one count of engaging in unlawful monetary transactions. In this agreement he
also stipulated to yet another instance of bank fraud as an uncharged offense. On appeal,
Rybner challenged the legitimacy of the second plea agreement and asserted that, for
numerous reasons, the sentence that he received for those crimes is wrong. He also
argued that his two sentences should be served concurrently rather than consecutively.
We find Rybner’s appeal to be without merit.
Because Rybner received a sentence that was below the sentencing guidelines, he
paradoxically argued on appeal that his plea agreement is invalid, since the agreement
rested upon a sentence “within the guidelines.” While highlighting the specious nature of
this argument, the government conceded that an ambiguity in the agreement can be
argued. Instead the government asserted Rybner’s substantive arguments are meritless.
We agree.
Contrary to Rybner's assertion, the District Court fully considered an array of
evidence in deciding upon the sentence. The District Court reviewed Rybner's
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psychological examination on the record. Moreover, the District Court assessed multiple
factors, including a motion for a downward departure from the government, in deciding
upon the sentence. We conclude that the District Court followed proper procedures for
determining a sentence. United States v. Goff, 501 F.3d 250 (3d Cir. 2007).
Moreover, contrary to Rybner's argument, the District Court did not consider
erroneous facts in determining this sentence. The record makes clear that the District
Court referenced Rybner’s prior bank fraud conviction when it referred to “crimes of a
like nature.” The instant crime was committed while Rybner awaited sentencing for that
crime. The government pointed to this fact, and the District Court properly considered it.
We find no support for Rybner’s contention that the District Court was referencing
another matter.
Finally, Rybner argued that the previous bank fraud and auto fraud crimes should
be served simultaneously, not consecutively. Nonetheless, Rybner entered into an
unconditional guilty plea to the offenses in question, which waived this issue. At the
time, he clearly understood that he would be sentenced separately for the offenses.
Furthermore, in arguing for a lenient sentence, Rybner’s counsel focused upon the fact
that the two sentences would be served consecutively. Therefore, the District Court did
not err in requiring Rybner to serve consecutive sentences.
For all of these reasons, we will affirm the order of the District Court.
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