United States v. Morchik , 709 F. App'x 56 ( 2017 )

16-4307
United States v. Morchik
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
20th day of September, two thousand seventeen.
PRESENT: DENNIS JACOBS,
JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 16-4307
OLGA NOVOGORODSKY, OKON UMANA, IGOR KULESHOV,
LEONID ZALKIND, NIAZALY KAIPOV, PAVEL
ZBOROVSKIY, GREGORY KONOPLYA KONOPLYA, IGOR
ISHCHUK,
Defendants,
YEFIM MORCHIK,
Defendant-Appellant.
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FOR APPELLANT: Arkady Bukh, Brooklyn, NY.
FOR APPELLEE: Shannon C. Jones, Peter A.
Norling, Assistant United
States Attorneys, for Bridget
M. Rohde, Acting United
States Attorney for the
Eastern District of New York,
Brooklyn, NY.
Appeal from a judgment of the United States District Court
for the Eastern District of New York (Townes, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of the district court be AFFIRMED.
Defendant-appellant Yefim Morchik pleaded guilty to one
count of conspiracy to receive and pay health care kickbacks,
in violation of 18 U.S.C. § 371. He arranged for Medicare and
Medicaid beneficiaries to take medically unnecessary ambulette
transportation to a clinic, where they received unnecessary
services; the ambulette company and clinic fraudulently billed
the government and paid kickbacks to the patients (the ambulette
company also paid kickbacks to the clinic). The United States
District Court for the Eastern District of New York sentenced
Morchik principally to 34 months’ imprisonment. Morchik
appeals his sentence, asserting that it was procedurally and
substantively unreasonable and that it was tainted by his
counsel’s ineffective assistance. We assume the parties’
familiarity with the underlying facts, the procedural history,
and the issues presented for review.
We review a district court’s sentence for procedural and
substantive reasonableness, which amounts to review for abuse
of discretion. United States v. Cavera, 550 F.3d 180, 187 (2d
Cir. 2008) (en banc). “A district court commits procedural
error where it fails to calculate the Guidelines range . . . ,
makes a mistake in its Guidelines calculation, or treats the
Guidelines as mandatory.” Id. at 190. It also errs
procedurally if it does not consider the factors set forth in
18 U.S.C. § 3553(a), rests its sentence on a clearly erroneous
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finding of fact, or fails to adequately explain its chosen
sentence. Id.A sentence is substantively unreasonable if it “cannot be
located within the range of permissible decisions.” Id. at
189. “[O]nly those sentences that are so ‘shockingly high,
shockingly low, or otherwise unsupportable as a matter of law’
that allowing them to stand would ‘damage the administration
of justice’” are substantively unreasonable. United States v.
Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (quoting United
States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)).
1. Morchik claims that his below-Guidelines sentence is
substantively unreasonable because it is higher than the
sentences of certain co-defendants he claims were more culpable
than he. Assuming that more culpable co-defendants received
lighter sentences, that alone would not render Morchik’s
sentence substantively unreasonable, and he cites no authority
in support. Although district courts may consider the need to
avoid sentencing disparity among co-defendants, such
consideration is not required. See United States v. Williams,
524 F.3d 209, 216 (2d Cir. 2008).1
Given the seriousness of Morchik’s offense, we cannot
conclude that a sentence of 34 months’ imprisonment is
substantively unreasonable.
2. Morchik argues procedural error on three grounds, none
of which is persuasive. First, he claims that the district
court failed to consider his cooperation efforts and that his
breach of the cooperation agreement was caused by a
co-defendant’s threats. The record reflects just the
opposite. The district court held a lengthy Fatico hearing at
which it heard extensive testimony regarding Morchik’s attempts
to cooperate and the purported threats against him. And at
sentencing, Morchik and his attorney argued that these
1
District courts must consider the need to avoid unwarranted
nationwide sentencing disparities. See 18 U.S.C.
§ 3553(a)(6). However, Morchik has not shown that the district
court failed to do so. Nor has he shown that his sentence
created such a disparity.
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circumstances warranted leniency. Prior to imposing the
sentence, the district court stated that it had “taken into
consideration [Morchik’s] cooperation,” the “statements made
to the Court,” and the § 3553(a) factors. App’x at 261-62.
Thus, the court appears to have thoroughly considered Morchik’s
cooperation efforts and his stated reasons for breaching his
cooperation agreement. The finding that Morchik’s “dishonesty
and refusal to testify in this case almost negates” his
cooperation, id. at 262, is well supported by the record and
does not constitute an abuse of discretion.
Second, Morchik contends that the district court failed to
consider his medical conditions, which include high blood
pressure, heart disease, arthritis, sleep apnea, anxiety,
insomnia, depression, kidney stones, and psoriasis. However,
the district court was apprised of Morchik’s poor health by the
presentence report and his statement at sentencing, and the
court explicitly considered both. “[W]e will not conclude that
a district judge shirked her obligation to consider the
§ 3553(a) factors simply because she did not discuss each one
individually or did not expressly parse or address every
argument relating to those factors that the defendant
advanced.” United States v. Fernandez, 443 F.3d 19, 30 (2d Cir.
2006) abrogated on other grounds by Rita v. United States, 551
U.S. 338 (2007). There is no indication that the court
misconstrued either the health-related evidence or the court’s
ability to consider it. Morchik complains that the district
court relied on incomplete information because it did not have
access to his medical records. But the fault (if any) lies with
his trial counsel (who chose not to submit the records), not
the district court.
Finally, Morchik argues that his Guidelines calculation is
based on an inflated loss amount. Specifically, he contends
that the $2,080,944 in fraudulent Medicare/Medicaid billing
attributed to him by the district court (spanning nearly three
years) improperly includes: (1) several months of billing that
predated his employment at the ambulette company; and (2)
several months of billing that postdated the last kickback he
paid to the clinic. Morchik did not raise this challenge below.
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We therefore review for plain error.2 United States v.
Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007). We identify no
such error. The fraudulent billing was separate from the
kickback payments, and Morchik fails to explain why fraudulent
billing should not be attributed to him merely because it
postdated his last kickback payment to the clinic. He also
makes no attempt to provide (or even estimate) the amounts
billed during the disputed months. He has not demonstrated
that these (unspecified) amounts have an effect on the
Guidelines calculation: that calculation was based on a loss
amount of over $1.5 million, see U.S.S.G. § 2B1.1(b)(1)(I); so
the calculation would remain the same unless the loss
incorrectly attributed to him was at least $580,944 ($2,080,944
minus $1.5 million). Morchik has not established the prejudice
necessary for plain error.
3. Morchik claims ineffective assistance of counsel. We
decline to review this claim on the record now before us. This
case does not present the type of circumstances under which such
a claim, raised for the first time on direct appeal, may be
decided. See Massaro v. United States, 538 U.S. 500, 504 (2003)
(“[I]n most cases a motion brought under § 2255 is preferable
to direct appeal for deciding claims of ineffective
assistance.”); United States v. Salameh, 152 F.3d 88, 161 (2d
Cir. 1998) (per curiam) (observing this Court’s “baseline
aversion to resolving ineffectiveness claims on direct
review”). Morchik may pursue his ineffective assistance claim
in a § 2255 petition. See United States v. Morris, 350 F.3d
32, 39 (2d Cir. 2003).
2
Under plain error review, a defendant must “demonstrate that
(1) there was error, (2) the error was plain, (3) the error
prejudicially affected his substantial rights, and (4) the
error seriously affected the fairness, integrity or public
reputation of judicial proceedings.” United States v. Cook,
722 F.3d 477, 481 (2d Cir. 2013).
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For the foregoing reasons, and finding no merit in
Morchik’s other arguments, we hereby AFFIRM the judgment of the
district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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