United States v. Dragomir Taskov , 564 F. App'x 292 ( 2014 )

FILED
NOT FOR PUBLICATION MAR 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10336
Plaintiff - Appellee, D.C. No. 2:10-cr-00217-PMP-
PAL-1
v.
DRAGOMIR TASKOV, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Argued and Submitted February 10, 2014
Stanford, California
Before: O’SCANNLAIN and MURGUIA, Circuit Judges, and MUELLER, District
Judge.**
Dragomir Taskov appeals from the final judgment of the district court
following a jury trial. Taskov was convicted on two counts of receipt or interstate
transportation of a stolen vehicle, 18 U.S.C. § 2315, one count of interstate
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kimberly J. Mueller, District Judge for the U.S.
District Court for the Eastern District of California, sitting by designation.
transport of a stolen vehicle, 18 U.S.C. § 2314, and one count of insurance fraud,
18 U.S.C. § 1341. He was sentenced to 82 months in prison. On appeal, Taskov
challenges numerous rulings made by the district court before and during trial, the
administration of the trial by the district court, and his sentence. He also moves to
supplement the record on appeal with transcripts of conversations intercepted by
law enforcement officials. We grant Taskov’s motion to supplement the record
and affirm the final judgment of the district court.
Taskov challenges numerous rulings made by the district court before and
during his trial; these challenges are without merit. First, he offers no evidence
that evidence introduced at trial was obtained as the result of unlawful wiretapping.
Second, he fails to demonstrate that he was subjected to vindictive prosecution,
prosecutorial misconduct, or untimely production of discovery, so he cannot show
that he was entitled to a dismissal or declaration of mistrial. Third, he does not
point to any evidence impermissibly admitted by the district court in contravention
of Federal Rule of Evidence 404(b).
The issues Taskov raises for the first time on appeal are similarly unavailing.
He fails to demonstrate that he was deprived of his right to a speedy trial,
particularly in light of his assent to three of the four continuances that resulted in
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his trial’s postponement. Further, he makes no showing that he was prejudiced by
any bias shown by the district judge.
Taskov also raises three specific challenges to his sentence. As to his claim
that his sentence is disproportionately severe compared to those of his co-
defendants, Taskov cannot show that his sentence is unreasonable. He is not
similarly situated to his co-defendants, whom the district court observed had
pleaded guilty, assisted the government, and, unlike Taskov, had not testified
falsely at trial. A “claim[] that the disparity between the sentence [the defendant]
received and those received by his co-conspirators was unwarranted . . . fails
[where] none of [his] co-conspirators was similarly situated to [the defendant].”
United States v. Carter, 560 F.3d 1107, 1121 (9th Cir. 2009).
Similarly, the district court did not err in determining that Taskov was an
organizer of a criminal enterprise involving five or more participants for the
purpose of calculating his Guideline range. Taskov offers no basis for concluding
that the district court clearly erred in its findings that the counts of conviction alone
implicated five or more participants and that Taskov played a role central to the
conduct charged in the indictment, which is “evidence ‘that the defendant
exercised some control over others involved in the commission of the offense or
was responsible for organizing others for the purpose of carrying out the crime.’”
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United States v. Yi, 704 F.3d 800, 807 (9th Cir. 2013) (quoting United States v.
Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007)).
Taskov also challenges the district court’s consideration of acquitted conduct
in fashioning his sentence. Taskov was charged with 34 counts related to his
alleged involvement in a conspiracy that committed numerous criminal acts. He
was acquitted on the conspiracy count. At sentencing, the district court explicitly
stated that it was considering acquitted conduct in calculating Taskov’s sentence.
It is unclear precisely what role acquitted conduct played in Taskov’s
ultimate sentence, because the district court also stated that it arrived at Taskov’s
below-Guideline sentence1 of 82 months by taking the 41-month sentence of co-
conspirator Dimitar Dimitrov and doubling it, justified primarily by its finding that
Taskov had given false testimony at trial. Even if the district court relied on its
own findings that Taskov had committed conduct underlying counts on which he
had been acquitted, such reliance is permitted. See United States v. Mercado, 474
F.3d 654, 657-58 (9th Cir. 2007) (holding that there is “no Sixth Amendment
violation when sentencing judges consider conduct underlying acquitted counts”).
Taskov has not shown that Mercado is “‘clearly irreconcilable’ with intervening
1
The district court determined that Taskov was subject to a Guideline range
of 135-168 months.
4
Supreme Court precedent,” so his argument that Mercado should be overturned
may only be considered by this court sitting en banc. Biggs v. Sec'y of Cal. Dep't
of Corr. & Rehab., 717 F.3d 678, 689 (9th Cir. 2013) (quoting Miller v. Gammie,
335 F.3d 889, 899-900 (9th Cir. 2003) (en banc)).
Finally, we note our concern that the district court calculated Taskov’s
sentencing range under the Guidelines based on findings by a preponderance of the
evidence, rather than by the more rigorous clear and convincing evidence standard.
“When . . . the combined impact of contested sentencing enhancements is
disproportionate relative to the offense of conviction, the district court must apply
the clear and convincing evidence standard of proof. There is no bright-line rule
for determining when the clear and convincing evidence standard applies. Instead,
we look at the totality of the circumstances. . . .” United States v. Riley, 335 F.3d
919, 925-26 (9th Cir. 2003) (citing United States v. Jordan, 256 F.3d 922, 927-29
(9th Cir. 2001)).
Here, the district court found by a preponderance of the evidence that
Taskov had committed both conduct of which he had been acquitted and conduct
for which he had never been charged. Because Taskov “failed to object to the
district court’s application of the preponderance standard, we review for plain
error.” Id. at 925 (citing Fed. R. Crim. P. 52(b)). Under this standard, we will
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reverse the district court only if “the error ‘seriously affects the fairness, integrity,
or public reputation of judicial proceedings.’” Id. (quoting Johnson v. United
States, 520 U.S. 461, 466-67 (1997)).
Although it appears likely that the district court should have found all
conduct supporting Taskov’s sentencing enhancements by clear and convincing
evidence, we need not decide the issue because the district court did not plainly err.
A great deal of the conduct that the district court found by a preponderance of the
evidence was in fact supported by the conduct underlying the counts on which
Taskov was convicted after the jury found him guilty beyond a reasonable doubt.
As a result, the difference between the sentence based only on those enhancements
supported by the convicted conduct and Taskov’s actual 82-month sentence does
not amount to a doubling nor to a four-point or greater increase under the
Guidelines. Consequently, “[e]ven if the district court’s application of a
preponderance standard of review were an error, it would not be ‘plain.’” United
States v. Garro, 517 F.3d 1163, 1169 (9th Cir. 2008) (quoting Jordan, 256 F.3d at
926); see also United States v. Armstead, 552 F.3d 769, 777-78 (9th Cir. 2008);
Riley, 335 F.3d at 926, 927.
Taskov’s motion to supplement the record is GRANTED. The final
judgment of the district court is AFFIRMED.
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