United States v. Kats (Marmilev)

14-4738 United States v. Kats (Marmilev) 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 TO 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 the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 8th day of March, two thousand seventeen. 4 5 PRESENT: 6 PIERRE N. LEVAL, 7 GUIDO CALABRESI, 8 SUSAN L. CARNEY, 9 Circuit Judges. 10 _________________________________________ 11 12 UNITED STATES OF AMERICA, 13 Appellee, 14 15 v. No. 14-4738 16 17 MARK MARMILEV, AKA Marko, AKA Mark Halls, 18 Defendant-Appellant, 19 20 VLADIMIR KATS, AKA Sealed Defendant 1, AKA 21 Ragnar, LIBERTY RESERVE S.A., ARTHUR BUDOVSKY, 22 AKA Arthur Belanchuk, AKA Eric Paltz, AHMED 23 YASSINE ABDELGHANI, AKA Alex, AZZEDDINE EL 24 AMINE, ALLAN ESTEBAN HIDALGO JIMENEZ, AKA 25 Allan Esteban Hidalgo, MAXIM CHUKHAREV, 26 Defendants. 27 _________________________________________ 28 29 FOR DEFENDANT-APPELLANT: Mary Anne Wirth, Bleakley Platt & 30 Schmidt, LLP, White Plains, NY. 1 2 FOR APPELLEE: Christine Magdo, Assistant United States 3 Attorney, for Preet Bharara, United States 4 Attorney for the Southern District of New 5 York, New York, NY. 6 7 Appeal from a judgment of the United States District Court for the Southern District 8 of New York (Cote, J.). 9 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 10 ADJUDGED, AND DECREED that the December 12, 2014 judgment of the District 11 Court is VACATED IN PART (only as to the $250,000 fine) and the case is 12 REMANDED for further proceedings consistent with this order. 13 Criminal defendant Mark Marmilev pleaded guilty to count two of an indictment that 14 charged him with, among other crimes, conspiring to operate an unlicensed money 15 transmitting business (as defined by 18 U.S.C. § 1960), in violation of 18 U.S.C. § 371. The 16 District Court then sentenced him to 60 months’ imprisonment, three years’ supervised 17 release, and a fine of $250,000. Marmilev argues on appeal that the District Court erred in 18 imposing a fine above the Sentencing Guidelines range of $17,500-$175,000 without 19 (1) giving him advance notice of the court’s contemplation of an above-Guidelines fine; 20 (2) affording him an opportunity to present evidence regarding his ability to pay the fine; 21 (3) making findings as to his ability to pay; and (4) giving any explanation of its deviation 22 from the Guidelines range. He asks that we vacate the portion of the judgment that imposes 23 the $250,000 fine, remand the case for reconsideration of the fine, and instruct the District 24 Court to take evidence and make findings regarding his ability to pay the fine. He further 25 asks us to instruct the District Court that, if it again imposes an above-Guidelines fine, it 26 should state its reasons for doing so. We assume the parties’ familiarity with the underlying 27 facts and the procedural history of the case, to which we refer only as necessary to explain 28 our decision. 29 The government concedes that the District Court failed to state its reasons for 30 imposing an above-Guidelines fine, and consents to vacating the fine and remanding to 31 enable the District Court to complete the record by stating its reasons. See United States v. 2 1 Aldeen, 792 F.3d 247, 251-55 (2d Cir. 2015); 18 U.S.C. § 3553(c). However, the government 2 opposes Marmilev’s effort to reopen inquiry into his ability to pay a fine because the 3 government contends Marmilev had the opportunity to proffer evidence of inability to pay 4 and decided not to do so. Given the unusual circumstances of this case, we reject the 5 government’s argument. 6 Because Marmilev did not raise this issue before the District Court, our review is for 7 plain error, Aldeen, 792 F.3d at 253, that is: “error that (1) was plain, (2) affected substantial 8 rights, and (3) seriously affected the fairness, integrity or public reputation of the judicial 9 proceedings,” United States v. Banks, 464 F.3d 184, 189 (2d Cir. 2006) (internal quotation 10 marks and brackets omitted). 11 In deciding whether to impose a fine and in what amount, a district court is required 12 to consider “the defendant’s income, earning capacity, and financial resources.” 18 U.S.C. 13 § 3572(a). Under the Sentencing Guidelines, a sentencing court shall impose a fine “except 14 where the defendant establishes that he is unable to pay and is not likely to become able to 15 pay.” U.S.S.G. § 5E1.2(a). A defendant is entitled to an opportunity to be heard regarding his 16 ability to pay a fine. United States v. Elfgeeh, 515 F.3d 100, 136 (2d Cir. 2008) (citing United 17 States v. Marquez, 941 F.2d 60, 65-66 (2d Cir. 1991)). 18 Given the sequence of events, we conclude that, as a practical matter, the defendant 19 had no reasonable opportunity to contest his ability to pay a fine. The presentence report 20 (PSR) recommended against imposition of any fine, stating explicitly that its 21 recommendation was based on Marmilev’s inability to pay. The government’s sentencing 22 submission then made no suggestion that a fine be imposed, apparently accepting the 23 probation department’s finding of inability to pay. And the court made no suggestion prior 24 to the actual imposition of sentence that it either doubted the fact of Marmilev’s inability to 25 pay as asserted in the PSR or was contemplating imposing a fine. The court then imposed a 26 very substantial fine, far above the Guidelines range, without any information contradicting 27 the PSR’s conclusion that Marmilev was unable to pay a fine. 28 It is true that under ordinary circumstances the court is not obligated to warn a 29 defendant that it might impose a fine, and a defendant who claims inability to pay must take 3 1 the initiative to communicate that information to the court. In this case, however, where the 2 defendant had made his case of inability to pay to the probation department, the probation 3 department had accepted his showing and had recommended in the PSR against imposing a 4 fine on that basis, and both the government and the court appeared to accept the PSR’s 5 conclusion on that issue, we believe the defendant could reasonably rely on the expectation 6 that he would not be fined (much less fined above the Guidelines range). He had no reason 7 to burden the court by demanding an evidentiary hearing on a matter that reasonably 8 appeared to be settled. He thus had no reasonable opportunity, as a practical matter, to 9 present evidence of his inability to pay to the court. We have previously found plain error in 10 similar circumstances, and do so here. See Elfgeeh, 515 F.3d at 136-37 (finding plain error 11 where the district court imposed a substantial, above-Guidelines fine—despite the PSR’s 12 conclusion that the defendant was unable to pay a fine—without affording the defendant an 13 opportunity to present evidence, and without making any findings, on ability to pay); see also 14 United States v. Corace, 146 F.3d 51, 57 (2d Cir. 1998) (“[T]he circumstances of this case 15 bearing on inability to pay[, including the PSR’s conclusion that defendant was unable to pay 16 a fine,] were sufficient to oblige the Court, before imposing a fine, to indicate the basis for 17 the Court’s implicit conclusion that the defendant could realistically be expected to pay a fine 18 . . . . In the absence of such explication, the case must be remanded for reconsideration of 19 the fine.”). 20 We accordingly vacate only that part of the sentence pertaining to the fine, leaving 21 the other aspects of the sentence intact. The matter is remanded to the District Court to 22 reconsider whether to impose a fine, and if so, in what amount, and to explain the reasons 23 for its decision in accordance with its obligations under 18 U.S.C. § 3553(c). The defendant 24 shall be permitted to make a showing of inability to pay, and the court should make 25 appropriate findings on that question. 26 *** 4 1 We therefore VACATE IN PART the judgment of the District Court (only as to the 2 $250,000 fine) and REMAND the case for further proceedings consistent with this order. 3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court 5