United States District Court, E.D. California
ORDER OVERRULING DEFENDANT'S OBJECTIONS TO THE
GARLAND E. BURRELL, JR. SENIOR UNITED STATES DISTRICT JUDGE
Ruslan Kirilyuk objects to findings in the Presentence Report
(“PSR”). The United States opposes the
objects to paragraph 7 in the PSR arguing “[t]here is
no evidence that [he] opened a fake American Express merchant
account in the name of [L.D.] using the high school
transcript that was introduced at trial.” Def's
Obj. at 5:7-9. The United States rejoins:
To the extent Kirilyuk argues the evidence did not show he
personally took all of the steps to steal and misuse
L.D.'s identity, the government agrees. However, Kirilyuk
was convicted beyond a reasonable doubt by the jury for his
participation in this unlawful use of L.D.'s personally
identifying information. This finding was well supported by,
among other pieces of evidence, the recovery of
Kirilyuk's fingerprint from L.D.'s student transcript
that was used to open the merchant account. Moreover, to the
extent that others also assisted in the crime, Kirilyuk is
responsible for the reasonably foreseeable acts taken by his
coconspirators in furtherance of the criminal agreement. See,
e.g., 18 U.S.C. § 2; Ninth Cir. Crim. Jury Inst. 5.1;
U.S.S.G. § 1B1.3. Therefore, while Kirilyuk was not the
only person who was involved in the scheme, the PSR correctly
states that he used the name and social security number of
L.D. to open the account. If any change is to be made to the
language in the PSR, the government suggests that it be
revised to state that Kirilyuk and his co-defendants used the
name and social security number of L.D.”
Gov't's Sen. Memo and Response to Objs. at 3:17-28,
United States is correct. This objection is overruled.
objects to paragraph 17 in the PSR arguing he never made the
statement attributed to him in the paragraph. The
government's following response to this objection
accurately states the evidentiary record concerning the
objection: Kirilyuk “objects to a statement made in a
chat by his coconspirators. This chat was a contemporaneous
statement made in the course of the conspiracy by
Kirilyuk's coconspirators. It was . . . admitted at trial
and it belongs in the PSR because it describes Kirilyuk's
interactions with his coconspirators. [The statement] is very
probative of Kirilyuk's position as the leader of the
fraud scheme whose leadership style was not always
appreciated by his coconspirators.” Sentencing Memor.
and Resp. to Objs. at 4:28, 5:1-2 and 4-5, ECF 385.
Therefore, the objection to paragraph 17 is overruled.
objects to the $59, 956, 500 intended loss amount in
paragraph 29 of the PSR. However, clear and convincing
evidence in the trial and sentencing records supports this
paragraph. The evidentiary record includes the following
A Federal Bureau of Investigation (FBI) investigation
revealed a criminal network which operated 71 false online
businesses to commit credit card fraud from 2011 to 2014. The
investigation identified Mihran Melkonyan, Rouslan Akhmerov,
Aleksandr Maslov, and Ruslan Kirilyuk as conspirators.
Melkonyan, Akhmerov, Maslov, and Kirilyuk operated the
fraudulent online businesses by submitting fraudulent charges
to stolen American Express credit card and debit card
accounts. The FBI found that approximately 119, 913 stolen
American Express credit cards or debit cards were used, which
resulted in 190, 321 transactions being submitted to American
Express. Each transaction usually was within the price range
of $15 to $30. American Express approved approximately 84,
032 of these charges, which resulted in $1, 418, 959 in
fraudulent charges being approved, but the intended loss was
more than $3.4 million.
Paragraph 5 in the PSR at 5.
the method used to calculate the intended loss stated in
paragraph 29 of the PSR is supported by the advisory
guidelines; specifically, “[e]ach device is valued at
$500.” PSR at paragraph 29; See United States v.
Dobadzhyan, 677 Fed.Appx. 454, 455(9th Cir. 2017) (“In
cases, such as this one, involving altered or counterfeit
instruments, U.S.S.G. § 2B1.1(b)(1) sets increases in
criminal offense levels based on the amount of loss [; and a]
court may impose a charge of $500 per counterfeit access
device number. U.S.S.G. § 2B1.1, cmt. n.3(F)(i); United
States v. Popovski, 872 F.3d 552, 553, (7th Cir. 2017) cert.
denied 138 S.Ct. 1017 (2018)(“Application Note 3(F)(i)
to § 2B1.1 provides: ‘In a case involving any
counterfeit access device or unauthorized access device, loss
includes any unauthorized charges made with the counterfeit
access device or unauthorized access device and shall be not
less than $500 per access device.'”).
United States is correct in the following assertions in its
brief: “[The intended] loss amount was shown through a
variety of links, including transaction signatures, items
recovered in search warrants, linked bank accounts, common IP
addresses, witness testimony, and other evidence.
Corroborated testimony further established that Kirilyuk was
a knowing participant in [the] full scheme.” United
States' Sentencing Memor. and Resp. to Objs. at 5:12-15.
objection to paragraph 29 is overruled.
also objects to paragraph 30 in the PSR arguing it
erroneously contains an increase in his sentencing offense
level “for [the] number of victims [, and that the]
‘victim impact', paragraph makes it clear that only
AMEX suffered any actual loss. AMEX made all cardholders
whole. For the purposes of this adjustment,
‘victim' is a term of art which means a person who
has suffered any part of ‘actual loss.'”
Def.'s Obj. at 14:12-14, ECF 388. The Ninth Circuit
states in United States v. Pham, 545 F.3d 712, 719 (9th Cir.
2008) (internal quotations omitted): “there may be
situations in which a person could be considered a victim
under the Guidelines even though he or she is ultimately
reimbursed.” This ...