13-2204
USA v. Breynin
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 “SUMMARY 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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of April, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-2204
16
17 ALEKSEY BREYNIN,
18 Defendant-Appellant.
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20
21 FOR APPELLEE: Amy Busa and Amanda Hector,
22 Assistant United States
23 Attorneys, Of Counsel, for
24 Loretta E. Lynch, United States
25 Attorney for the Eastern
26 District of New York, Brooklyn,
27 New York.
28
1
1 FOR APPELLANT: Colleen P. Cassidy, Of Counsel,
2 Federal Defenders of New York,
3 Inc., New York, New York.
4
5 Appeal from a judgment of the United States District
6 Court for the Eastern District of New York (Cogan, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the district court be
10 REMANDED to the district court.
11
12 Aleksey Breynin appeals from a judgment of conviction
13 entered on June 24, 2013, sentencing him chiefly to 24
14 months’ imprisonment. He primarily challenges the district
15 court’s imposition of certain sentencing enhancements. We
16 assume the parties’ familiarity with the underlying facts,
17 the procedural history, and the issues presented for review.
18
19 On January 3, 2012, Breynin pleaded guilty to one count
20 of conspiracy to commit wire fraud, in violation of 18
21 U.S.C. § 1349, for his involvement in a multi-year scheme in
22 which he and co-conspirators in Eastern Europe used account
23 information stolen from credit card holders in the United
24 States to purchase merchandise that was ultimately shipped
25 to various locations in Eastern Europe.
26
27 At sentencing, the district court accepted the
28 Government’s request for two two-level enhancements to
29 Breynin’s U.S. Sentencing Guidelines base offense level of
30 16, finding that Breynin’s offense involved “trafficking of
31 any unauthorized access devices,” U.S.S.G. §
32 2B1.1(b)(11)(B)(I), and that “a substantial part of the
33 scheme was committed outside of the United States,” U.S.S.G.
34 § 2B1.1(b)(10)(B). Consequently, Breynin’s total offense
35 level was 20 and his Guidelines range was 33 to 41 months’
36 imprisonment. Absent these enhancements, the Guidelines
37 range would have been 21 to 27 months.
38
39 Breynin claims that these enhancements were imposed in
40 error. Of particular importance to this appeal is whether
41 the purchase of credit card numbers, without more, can be
42 considered “trafficking” in access devices within the
43 meaning of U.S.S.G. § 2B1.1(b)(11)(B)(i). Resolution of
44 this close question would require us to make new law, which
45 we are reluctant to do unless it would likely make a
46 difference in Breynin’s ultimate sentence. See United
47 States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (“Where we
2
1 identify procedural error in a sentence, but the record
2 indicates clearly that the district court would have imposed
3 the same sentence in any event, the error may be deemed
4 harmless, avoiding the need to vacate the sentence and to
5 remand the case for resentencing.”).
6
7 The district court acknowledged that the application of
8 the contested enhancements was a “close call,” Tr. of
9 Sentencing, at 60, May 29, 2013, but indicated that it was
10 inclined to impose a 24-month sentence regardless of whether
11 the enhancements applied. See id. at 61 (“I think I’d end
12 up giving the same sentence no matter how the [G]uidelines
13 came out in this case.”). Accordingly, we remand the case
14 pursuant to the procedure outlined in United States v.
15 Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), to solicit the
16 district court’s view as to whether it is confident that it
17 would impose the same sentence regardless of the disputed
18 enhancements. The district court may also conduct such
19 further sentencing proceedings as it deems appropriate.
20
21 The panel retains jurisdiction to hear Breynin’s appeal
22 once the district court has responded. We respectfully
23 invite the district court to act with celerity, at the
24 latest within seventy-five calendar days of the date of this
25 decision.
26
27 For the foregoing reasons, we hereby REMAND the case to
28 the district court. After the district court has made its
29 determination, either party may restore jurisdiction to this
30 Court by filing with the Clerk a letter (along with a copy
31 of the relevant order or transcript) advising the Clerk that
32 jurisdiction should be restored. The returned appeal will
33 be assigned to this panel and an additional notice of appeal
34 will not be needed.
35
36 FOR THE COURT:
37 CATHERINE O’HAGAN WOLFE, CLERK
38
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