USA V. PYOTR BONDARUK ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10176
Plaintiff-Appellee, D.C. No.
2:11-cr-00450-TLN-2
v.
PYOTR BONDARUK, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted November 16, 2022**
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and LASNIK,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
Pyotr Bondaruk challenges the 71-month sentence imposed on resentencing
following his convictions for conspiracy to commit mail fraud in violation of 18
U.S.C. § 1349, making false statements to a federally insured financial institution
in violation of 18 U.S.C. § 1014, and money laundering in violation of 18 U.S.C.
§ 1957. The district court sentenced him to 71-months at his original sentencing
hearing. We affirmed the conviction but vacated the sentence and remanded to the
district court for “resentencing considering the factors relevant to a minor role
adjustment under Sentencing Guidelines § 3B1.2(b), comment, n.3(c).” United
States v. Palamarchuk, 791 Fed. App’x 658, 663 (9th Cir. 2019). The district court
again imposed a 71-month sentence at resentencing. We have jurisdiction under 28
U.S.C. § 1291, and we affirm. Because the parties are familiar with the factual and
procedural history of the case, we need not recount it here.
Bondaruk contends that the district court procedurally erred at resentencing
by (1) relying on erroneous facts regarding his restitution obligations; (2) improperly
considering his status as a lifetime sex offender; and (3) failing to adequately explain
the sentence. We review for plain error, United States v. Valencia-Barragan, 608
F.3d 1103, 1108 (9th Cir. 2010), and conclude there is none. While the record shows
that initially the court incorrectly believed restitution claims existed, this
misapprehension was corrected by the government during the sentencing hearing.
Furthermore, as the district court could have adjusted the sentence after learning that
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no restitution claims existed, but chose not to, Bondaruk cannot establish plain error.
See United States v. Ochoa, 809 F.3d 453, 458 (9th Cir. 2015) (explaining that
district courts may “alter a sentence” during a hearing in response to “evolving
circumstances during sentencing hearings”); United States v. Ameline, 409 F.3d
1073, 1078 (9th Cir. 2005) (en banc) (To establish plain error, defendant must show
a “reasonable probability” that he would have received a different sentence absent
the error.). Bondaruk’s sex offender status was a valid fact for the court to consider
in selecting the sentence. See 18 U.S.C. § 3553(a)(1) (instructing courts to consider
the “history and characteristics” of the defendant at sentencing). Finally, the record
reflects that the court considered the relevant 18 U.S.C. § 3553(a) factors and
adequately explained its reasons for the sentence. See United States v. Carty, 520
F.3d 984, 992–96 (9th Cir. 2008) (en banc).
Bondaruk next contends that the sentence is substantively unreasonable. The
within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) sentencing factors and the totality of the circumstances. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Gutierrez-Sanchez, 587 F.3d 904,
908 (9th Cir. 2009) (“The weight to be given the various factors in a particular case
is for the discretion of the district court.”). The district court did not abuse its
discretion in considering Bondaruk’s criminal history and role in the offense, even
when those factors were already reflected in the Guidelines range. See United States
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v. Dunn, 728 F.3d 1151, 1160 (9th Cir. 2013); United States v. Christensen, 732 F.3d
1094, 1100–01 (9th Cir. 2013).
Finally, Bondaruk contends that the district court erred by orally ordering
restitution at the resentencing hearing. We again review for plain error, United States
v. Begay, 33 F.4th 1081, 1096 (9th Cir. 2022) (en banc), and find none. It is true that
the district court likely erred in verbally ordering general restitution (without
specifying victims or amount) after learning that there were no existing or expected
restitution claims. United States v. Doe, 374 F.3d 851, 854 (9th Cir. 2004)
(explaining that the Mandatory Victims Restitution Act (MVRA) “specifically
makes an order of restitution contingent on the identification of specific victims”).
However, the district court’s written judgment, which did not contain a restitution
order, superseded the court’s oral order at the resentencing hearing. United States v.
Colace, 126 F.3d 1229, 1231 (9th Cir. 1997) (“[W]hen the oral sentence is illegal,
the correction procedure of [Federal] Rule [of Criminal Procedure] 35(c) applies,
and the correction supersedes the erroneous oral sentence.”). Thus, Bondaruk’s
arguments that the oral restitution order was invalid under the MVRA are unavailing
as the oral order was superseded by the written order, which did not include a
restitution order. Additionally, Bondaruk’s challenge fails under plain error review
because he has not shown that the alleged error affected his substantial rights, as he
has not been ordered to pay any amount in restitution. See Ameline, 409 F.3d at
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1078. Finally, the procedural arguments raised by Bondaruk are foreclosed by this
court’s precedent. See United States v. Moreland, 622 F.3d 1147, 1171–72 (9th Cir.
2010) (finding MVRA deadlines are procedural rather than jurisdictional and finding
no reversible error where restitution order was imposed for the first time at
defendant’s resentencing hearing).
AFFIRMED.
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