16‐297
U.S. v. Pinhasov
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.
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 15th day of February, two thousand
nineteen.
PRESENT: AMALYA L. KEARSE,
DENNIS JACOBS,
ROBERT D. SACK,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 16‐297
ALIK PINHASOV,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR DEFENDANT‐APPELLANT: DANIEL M. PEREZ, Law Offices of
Daniel M. Perez, Newton, NJ
(Nicholas J. Pinto, New York, NY, on
the brief).
FOR APPELLEE: RUSSELL CAPONE, Assistant
United States Attorney (Sarah K.
Eddy, Assistant United States
Attorney, on the brief), for Geoffrey
S. Berman, United States Attorney
for the Southern District of New
York, New York, NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Forrest, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Alik Pinhasov appeals his sentence and restitution order
following a guilty plea in the Southern District of New York (Forrest, J.). He also
argues that his lawyer rendered ineffective assistance by failing to adequately
investigate the loss amount associated with his fraudulent scheme. We assume
the parties’ familiarity with the underlying facts, the procedural history, and the
issues presented for review.
1. Pinhasov argues that his sentence of 48 months’ imprisonment‐‐seven
months above the top of his guidelines range of 33 to 41 months‐‐is substantively
and procedurally unreasonable. We review the procedural and substantive
reasonableness of a sentence for abuse of discretion. United States v.
Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008).
We find no procedural error. Over the course of a lengthy and thoughtful
colloquy, the court properly calculated the guidelines range, observed that the
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range was not presumptively reasonable, and considered the relevant 18 U.S.C. §
3553(a) factors. Most of the purported procedural errors Pinhasov identifies are
substantive complaints, and his examples of erroneous factual findings either
reflect an accurate assessment of the facts or do not involve a factual finding.
Nor is the sentence substantively unreasonable. Pinhasov argues that the
court placed undue emphasis on certain facts and considerations; but a court’s
reliance on section 3553(a) factors to vary its sentence upwards is not an abuse of
discretion when, as here, the court articulates reasons for treating the case as
atypical. See United States v. Sindima, 488 F.3d 81, 87 (2d Cir. 2007). Judge
Forrest explained that an above‐guidelines sentence was appropriate because the
guidelines did not adequately reflect the degree of harm Pinhasov inflicted on
the victims, his lack of remorse, his breach of the victims’ trust in an industry (the
diamond trade) that depends on trust, or his multiple bail violations. The court
also noted that the loss amount was not inflated because it comprised multiple
instances of fraud over time and many different diamonds.
2. Pinhasov’s supplemental pro se brief argues that the calculation of the
loss amount for purposes of sentencing and restitution does not reflect his
substantial repayments to the fraud victims. In support, Pinhasov adduces
copies of checks, account statements, notes, and other materials allegedly
reflecting repayments. Because Pinhasov neither raised these arguments nor
presented this evidence at the time of sentencing or prior to the restitution order,
we review the court’s calculation of the loss amount for plain error. United
States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012).
As to the guidelines calculation, Pinhasov’s argument is foreclosed by his
plea agreement, which waives his right to appeal any sentencing calculation
consistent with the parties’ stipulation that, among other thing, the loss amount
was more than $1,000,000 and less than $2,500,000. App’x 10–12. The waiver
was voluntary and knowing: Pinhasov’s plea colloquy included a discussion of
the loss amount contained in the stipulation and the consequences of both the
loss amount and the appeal waiver. Id. at 30–34.
Pinhasov’s challenge to the restitution order (which is not the subject of the
appeal waiver) presents a jurisdictional complication. Pinhasov filed his notice
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of appeal after judgment was entered on January 26, 2016, which was 76 days
before the order of restitution was entered on April 11, 2016. See App’x 3, 4, 99–
106. He did not file a second or amended notice of appeal, which would be
required in the normal course for him to challenge the restitution order.
Manrique v. United States, 137 S. Ct. 1266, 1274 (2017) (“[A] defendant who
wishes to appeal an order imposing restitution in a deferred restitution case must
file a notice of appeal from that order.”). However, the government has not
objected to the failure to file a second or amended notice of appeal. See id.
(“Courts do not have discretion to overlook such an error, at least where it is called
to their attention.”) (emphasis added).
The circumstances raise the question of whether we have jurisdiction to
entertain an appeal of a deferred restitution order when (i) the defendant failed
to file a second or amended notice of appeal and (ii) the government did not
object. This question need not be answered here, however, because even if we do
have jurisdiction, Pinhasov has not demonstrated plain error. At sentencing,
Pinhasov’s counsel acknowledged that the loss amount “was calculated without
deducting payments . . . made to some of the victims,” but stated that the
ultimate loss figure would fall within the $1,000,000 to $2,500,000 range to which
the parties stipulated, App’x 52, and that the difference would not be “dramatic,”
id. at 54; see also id. at 55. The government predicted that the final restitution
amount may reflect a difference “of a couple hundred thousand dollars,” id. at
54, and Pinhasov’s counsel agreed, id. at 55. About three months later, the court
ordered Pinhasov to pay restitution in the amount of $2,314,438.40, id. at 4, about
$300,000 less than the restitution amount recommended by probation. The
district court did not err by ordering restitution within the parties’ agreed loss‐
amount range.
3. Pinhasov also argues that he received ineffective assistance of counsel
because his lawyer inadequately investigated the loss amount for the purposes of
sentencing and restitution. Although we ordinarily defer review of such a claim
to a collateral proceeding, we may review on direct appeal where, as here, “the
factual record is fully developed and resolution of the Sixth Amendment claim
on direct appeal is beyond any doubt or in the interest of justice.” United States
v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (internal quotation marks omitted). A
defendant claiming ineffective assistance must (1) demonstrate that his counsel’s
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performance “fell below an objective standard of reasonableness” in light of
“prevailing professional norms,” Strickland v. Washington, 466 U.S. 668, 688
(1984), and (2) “affirmatively prove prejudice” arising from counsel’s allegedly
deficient representation, id. at 693.
Pinhasov’s attorney’s decision not to investigate the alleged repayments
did not fall below an objective standard of reasonableness. The duty to
investigate does not “compel defense counsel to investigate comprehensively
every lead or possible defense.” Greiner v. Wells, 417 F.3d 305, 321 (2d Cir.
2005). When there is “reason to believe that pursuing certain investigations
would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.” Strickland, 466 U.S.
at 691.
Pinhasov’s evidence in support of his ineffectiveness claim consisting of 73
pages of loose, unverified documents, is not reliable‐‐particularly given his
fraudulent conduct, which included writing bad checks. Indeed, several of the
same checks Pinhasov adduces to argue that he paid back his victims were cited
by one of those victims as examples of bad checks written by Pinhasov to keep
his scheme afloat. Moreover, Pinhasov admits that his payments to victims were
often made in the form of cash and diamonds, sometimes under duress, and
without precise contemporaneous records (to say the least). See, e.g., Supp. Brief
11 (describing repayment after victim’s “cohorts[] kidnapped Mr. Pinhasov in
Mumbai, India and held him at knife point” until they received a diamond).
Under these circumstances, a reasonable attorney could conclude that such
investigation would be futile.
We have considered the Appellant’s remaining arguments and find them
to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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