United States v. Dmitry Proshin

438 F.3d 235, 2006 U.S. App. LEXIS 3790, 2006 WL 354309
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 16, 2006
DocketDocket 04-5308-CR
StatusPublished
Cited by8 cases

This text of 438 F.3d 235 (United States v. Dmitry Proshin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dmitry Proshin, 438 F.3d 235, 2006 U.S. App. LEXIS 3790, 2006 WL 354309 (2d Cir. 2006).

Opinion

PER CURIAM.

Dmitry Proshin (defendant or appellant) appeals from a judgment of conviction en *237 tered in the United States District Court for the Southern District of New York (Wood, J.) on September 17, 2004,. following a jury trial. The jury found defendant guilty of conspiring to produce and of producing false identification documents in violation of 18 U.S.C. §§ 2 and 1028. A sentence of 24 months imprisonment was imposed, which defendant has now served, followed by three years supervised release.

Defendant raises several arguments on appeal but we concern ourselves in this per curiam opinion with only one: Whether the district court erred by applying a six-level enhancement when calculating defendant’s sentence. In a separate summary order filed today we address and dispose of the remainder of defendant’s arguments made in his appeal.

The one issue we address arises from the trial court’s finding of fact at sentencing that Proshin’s offenses involved between 25 and 99 false identification documents. Based on that finding the district judge enhanced defendant’s sentence by six levels under United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 2L2.1(b)(2). Proshin argues that there was insufficient evidence for the district court to make a finding that his offense involved between 25 and 99 documents. However, there was ample evidence to support the trial court’s finding which cannot be said to be clearly erroneous. Hence, we affirm the sentence enhancement imposed on defendant.

BACKGROUND

A. Facts at Trial

For a two-year period from at least 2001 to 2003, defendant and various associates assisted illegal immigrants with fraudulently obtaining North Carolina driver’s licenses. Until July 2002 Proshin engaged in this activity from an office he maintained at 37 West 32nd Street in New York City. Later, after July 2002, he worked with a partner, Sergiy Zakalich-nyy, who operated out of an office located at 1807 Kings Highway in Brooklyn, New York.

As part of the government’s case, two illegal aliens, Svetlana Tropina and Shaklo Ibragimova, testified that they used Prosh-in’s services in 2001 to obtain North Carolina learner’s permits. An advertisement placed in a Russian language newspaper led Ms. Ibragimqva to Proshin, while a mutual acquaintance led Ms. Tropina to him. Both Tropina and Ibragimova explained to the jury how Proshin had for a fee of up to $1,500 assisted them in obtaining the out-of-state learner’s permits.

Proshin gave the women North Carolina driver’s manuals to study so they would be prepared to take the licensure test. He then put them in contact with Audrey Shpigel, his partner in North Carolina, with whom Proshin split the fee the women paid him. The aliens, who lived in New York, traveled to Shpigel’s car dealership in North Carolina where he filled out the necessary paperwork. Because North Carolina has a residency requirement for obtaining permits, Shpigel had the women enter his dealership address as their home address. With Proshin and Shpigel’s assistance, both Tropina and Ibragimova were able illegally to obtain North Carolina learner’s permits.

Gidon Zevadia, a government informant, also testified at trial. During taped telephone conversations on January 14, 2003 Zakalichnyy told Zevadia to get in touch with his “partner,” Proshin. Zevadia then recorded telephone conversations with Proshin discussing how Proshin would assist him in obtaining a North Carolina license. On February 11, 2003 Zevadia met with Proshin at a pre-arranged location in Brooklyn so that Proshin could *238 drive him to North Carolina. When Zeva-dia refused to pay Proshin’s fee in advance, Proshin refused to go. Prior to that refusal, Proshin had called Zakalieh-nyy to discuss Zevadia’s failure to pay the fee.

On August 14, 2003 the FBI searched the office of Zakaliehnyy, Proshin’s partner, at 1807 Kings Highway and discovered 27 federal tax identification cards, two North Carolina driver’s manuals, and a computer harddisk containing a file with Proshin’s name and his Manhattan office address. The government presented evidence that North Carolina required federal tax identification cards from license applicants. The prosecution also presented records of telephone calls from Proshin to his partners Zakaliehnyy and Shpigel. From January 2001 to April 2003 Proshin called Zakalichnyy’s cellular telephone 351 times and the 1807 Kings Highway office 148 times. Proshin also called Shpigel over 180 times from January 2002 to April 2003.

B. Conviction and Sentencing

The jury found Proshin guilty on both counts of the indictment:' (1) conspiracy to produce, without lawful authority, false identification documents in violation of 18 U.S.C. § 1028, and (2) production, without lawful authority, of false identification documents in violation of 18 U.S.C. §§ 2 and 1028. At sentencing the district court found that Proshin’s offenses involved between 25 and 99 fraudulent identification documents and thereby imposed the six-level enhancement to his sentence, which is the issue we discuss in this writing.

DISCUSSION

A. Standard of Review

We review the district court’s factual finding that Proshin’s offenses involved between 25 and 99 documents for clear error. See United States v. Crosby, 397 F.3d 103, 114 (2d Cir.2005). A finding of fact is clearly erroneous only if, after viewing all the evidence, we are left with a “definite and firm conviction that a mistake has been committed.” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). We are “mindful that where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” United States v. Shepardson, 196 F.3d 306, 309 (2d Cir.1999).

B. 25 to 99 Documents Linked to Defendant

Proshin contends the government failed to prove that his offenses involved between 25 and 99 fraudulent identification documents by a preponderance of the evidence. He intimates that the evidence established at most three fraudulent documents — the permits obtained for Tropina and Ibragi-mova, and the attempted procurement for Zevadia.

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Bluebook (online)
438 F.3d 235, 2006 U.S. App. LEXIS 3790, 2006 WL 354309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dmitry-proshin-ca2-2006.