Case: 12-30384 Document: 00512183075 Page: 1 Date Filed: 03/21/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 21, 2013
No. 12-30384
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SERGEY TOROPKIN,
Defendant-Appellant
Cons. w/No. 12-30388
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KRISTINA RUCHKINA,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 2:11-CR-220-3
USDC No. 2:11-CR-220-2
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
Case: 12-30384 Document: 00512183075 Page: 2 Date Filed: 03/21/2013
No. 12-30384
c/w No. 12-30388
PER CURIAM:*
Sergey Toropkin and Kristina Ruchkina appeal the sentences imposed
following their guilty plea convictions for conspiring to commit bank fraud in
violation of 18 U.S.C. §§ 371 and 1344(2).
Ruchkina contends that her above-guidelines sentence is substantively
unreasonable because it was based on the potential impact of the offense conduct
on the corporate victim and the district court’s belief that restitution would
never be made. The parties have advised the court that Ruchkina has completed
her term of imprisonment and has been removed to Russia. For that reason, her
appeal is moot. See United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th
Cir. 2007).
Toropkin contends that his above-guidelines sentence is procedurally
unreasonable because the district court failed to meaningfully consider the 18
U.S.C. § 3553(a) factors and provide sufficient justification for the chosen
sentence. Because he failed to object on these grounds in the district court, we
review for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357,
361 (5th Cir. 2009).
The sentencing record reflects that the district court considered the
§ 3553(a) factors and sufficiently articulated its reasons for imposing the
above-guidelines sentence. Although the district court did not list the relevant
§ 3553(a) factors at sentencing, the court explicitly stated that it had considered
those factors in determining the particular sentence to be imposed. See United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (holding that a checklist
recitation of the § 3553(a) factors is neither necessary nor sufficient for a
non-guidelines sentence to be reasonable). The district court noted that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Case: 12-30384 Document: 00512183075 Page: 3 Date Filed: 03/21/2013
No. 12-30384
c/w No. 12-30388
Toropkin was subject to a statutory maximum of five years of imprisonment and
a guidelines imprisonment range of zero to six months. The district court heard
the parties’ recommendations that he be sentenced within the guidelines range
with credit for time served. The district court also heard counsel’s arguments
in mitigation of punishment, including that Toropkin had no criminal record in
the United States or Russia, that he was one year away from graduating from
college, that he was very sorry for his actions, and that he had cooperated with
the Government. Despite Toropkin’s youth, lack of criminal history, and minor
role in the larger conspiracy, the district court determined that he was a
necessary player, that he took advantage of the opportunities afforded to him by
the United States and its citizens, that restitution would likely never be made,
and that a sentence to time served would amount to a “free ticket home.” The
district court also adopted the sentiments expressed by the owner of the
corporate victim, including the impact of Toropkin’s actions on the company and
the need to send a strong message of deterrence. Because the district court
considered the § 3553(a) factors and sufficiently articulated its reasons for
imposing the above-guidelines sentence, Toropkin has shown no error, plain or
otherwise. See United States v. Key, 599 F.3d 469, 474 (5th Cir. 2010).
Toropkin also contends his above-guidelines sentence is substantively
unreasonable because (1) the sentence failed to account for the nature and
circumstances of the offense, his history and characteristics, and the applicable
guidelines range; (2) the district court improperly considered his inability to pay
restitution as an aggravating factor warranting an upward variance; and (3) the
sentence represented a clear error of judgment in balancing the sentencing
factors. We review the substantive reasonableness of a sentence under a
deferential abuse of discretion standard, taking into account the totality of the
circumstances. Id. at 475.
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Case: 12-30384 Document: 00512183075 Page: 4 Date Filed: 03/21/2013
No. 12-30384
c/w No. 12-30388
The sentencing record reflects that the district court considered the
applicable guidelines range as well as Toropkin’s youth, lack of criminal history,
minor role in the larger conspiracy, remorse, and cooperation with the
Government. The district court made an individualized assessment and
concluded that despite the parties’ recommendations, a sentence within the
guidelines range with credit for time served was not appropriate. After taking
into account the Sentencing Guidelines, the seriousness of Toropkin’s actions,
his lack of criminal history, and the other § 3553(a) factors, the district court
sentenced him to two years of imprisonment. Although Toropkin notes that the
corporate victim’s loss was taken into account by the Guidelines, the district
court was not precluded from considering factors already incorporated into the
guidelines calculation. See United States v. Brantley, 537 F.3d 347, 350 (5th Cir.
2008). Further, although district courts may not take into account a defendant’s
socio-economic status when imposing sentence, United States v. Humphrey, 104
F.3d 65, 71 (5th Cir. 1997); U.S.S.G. § 5H1.10, the sentencing record does not
reflect that the district court sentenced Toropkin to a longer term of
imprisonment because he owed restitution that he could not afford to pay.
Instead, the sentencing record reflects that the district court’s focus was on the
corporate victim’s ability to collect the restitution once Toropkin is removed to
Russia.
Our examination of the record and of the totality of the circumstances
satisfies us that the district court properly relied on the § 3553(a) factors in
deciding to impose an upward variance and in determining the extent of that
variance. See Brantley, 537 F.3d at 349. Toropkin has therefore failed to show
that his sentence is substantively unreasonable.
Accordingly, with regard to Case No. 12-30384, the judgment of the district
court is AFFIRMED, and with regard to Case No. 12-30388, the appeal is
DISMISSED AS MOOT.
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