NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 24-3429 D.C. No. Plaintiff - Appellee, 2:14-cr-00083-DJC-4 v. MEMORANDUM* RUSLAN KIRILYUK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of California Daniel J. Calabretta, District Court, Presiding
Submitted October 22, 2025 ** San Francisco, California
Before: CLIFTON, OWENS, and BUMATAY, Circuit Judges. Dissent by Judge BUMATAY. Ruslan Kirilyuk appeals from his 236-month sentence for wire fraud (18
U.S.C. § 1343), mail fraud (18 U.S.C. § 1341), aggravated identity theft (18 U.S.C.
§ 1028A), and failure to appear (18 U.S.C. § 3146). As the parties are familiar
* 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). with the facts, we do not recount them here. We affirm.
The district court sentenced Kirilyuk according to § 2B1.1 of the then-
operative 2023 Sentencing Guidelines. The Guidelines provided for graduated
offense level enhancements based on the amount of “loss,” but did not define
“loss.” U.S.S.G. § 2B1.1 (2023). Commentary to the Guidelines defined “loss” as
the “greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A) (2023).
Following this commentary, the district court used the $3.4 million intended loss in
Kirilyuk’s case, not the $1.4 million actual loss, to calculate his § 2B1.1 sentencing
enhancement. Kirilyuk objected that, in his view, the district court erred because
intended loss is an impermissible interpretation of “loss” under the Guidelines.
Because the error was preserved below, we review this issue de novo. United
States v. Trumbull, 114 F.4th 1114, 1117 (9th Cir. 2024).
“The Supreme Court has said that the commentary to the Guidelines ‘is akin
to an agency’s interpretation of its own legislative rules.’” Id. (quoting Stinson v.
United States, 508 U.S. 36, 45 (1993)). “As a result, we apply Kisor v. Wilkie, 588
U.S. 558 (2019), to determine whether to defer to the commentary’s interpretation
of a Guideline.” Id. at 1117–18 (footnote omitted) (citing United States v. Castillo,
69 F.4th 648, 655–56 (9th Cir. 2023)).
The first step under Kisor is to ask whether the meaning of “loss” in
U.S.S.G. § 2B1.1 is “genuinely ambiguous” after “exhaust[ing] all the ‘traditional
2 24-3429 tools of construction.’” Castillo, 69 F.4th at 655 (quoting Kisor, 588 U.S. at 575).
If “loss” is unambiguous, a court should not defer to the commentary. Id. Kirilyuk
argues that “loss” unambiguously refers only to actual loss. But we held otherwise
in United States v. Yafa, 136 F.4th 1194 (9th Cir. 2025). There, we concluded that
“because no single meaning of ‘loss’ is evident from § 2B1.1’s text, even after
employing the traditional tools of interpretation, a genuine ambiguity exists.”
Yafa, 136 F.4th at 1198.
Step two under Kisor requires asking whether the commentary’s
interpretation of the Guidelines is “reasonable,” or whether it “come[s] within the
zone of ambiguity the court has identified after employing all its interpretive
tools.” Id. (alteration in original) (quoting Kisor, 588 U.S. at 575–76). Text,
structure, history, and purpose—the court’s traditional interpretive tools—indicate
that “intended loss” falls within the zone of ambiguity that Yafa identified.
Kirilyuk insists that the plain and ordinary meaning of “loss” includes only
actual loss. But we have “often recognized ‘intended loss’ as part and parcel of the
plain meaning of the term ‘loss.’” United States v. Hackett, 123 F.4th 1005, 1012
(9th Cir. 2024) (canvassing Ninth Circuit precedent). See also United States v.
Diop, No. 24-3774, 2025 WL 2602277, at *2 (9th Cir. Sept. 9, 2025) (concluding
“‘intended loss’ is a permissible interpretation of ‘loss.’”).
This has also been the consistent position of the Sentencing Commission.
3 24-3429 The Sentencing Guidelines for fraud were originally laid out in § 2F1.1, which set
offense levels based on the “estimated, probable or intended loss.” U.S.S.G.
§ 2F1.1(b)(1) (1987). In 2001, the provision for fraud was consolidated into the
provision for theft, § 2B1.1, but nowhere did the Commission indicate an intent to
change the longstanding understanding that loss, in fraud cases, could refer to
intended or actual loss. See U.S.S.G. § 2B1.1 (2001). And in response to the
disagreement among courts over whether the commentary definition of “loss”
impermissibly expanded § 2B1.1, the Commission clarified its intent by moving
the “loss” definition from the commentary into the Guidelines themselves. See
U.S.S.G. § 2B1.1(b)(1)(A) (2024).
Other provisions of the Guidelines also indicate that “loss” may encompass
“intended loss” as well as “actual loss.” U.S.S.G. § 1B1.3(a)(3) describes the
relevant sentencing factors as including not only “all harm that resulted from the
[defendant’s] acts and omissions” but also “all harm that was the object of such
acts and omissions.” In general, “the sentences of defendants convicted of federal
offenses should reflect the nature and magnitude of the loss caused or intended by
their crimes.” U.S.S.G. § 2B1.1 cmt. background (2023) (emphasis added). This
is because “loss serves as a measure of the seriousness of the offense and the
defendant’s relative culpability.” Id. Kirilyuk’s interpretation “would hamstring
courts in fulfilling this purpose” by preventing them from adequately assessing a
4 24-3429 defendant’s culpability. Yafa, 136 F.4th at 1198. Thus, the commentary’s
treatment of “loss” as including “intended loss” is reasonable.
Step three under Kisor asks whether the Commission’s interpretation
is entitled “to ‘controlling weight.’” Trumbull, 114 F.4th at 1118 (quoting Kisor,
588 U.S. at 576). Kisor instructs courts to assess “whether the interpretation
(1) constitutes the agency’s ‘official position, rather than any more ad hoc
statement not reflecting the agency’s views,’ (2) implicates the agency’s
‘substantive expertise,’ and (3) reflects the agency’s ‘fair and considered
judgment.’” Yafa, 136 F.4th at 1199 (quoting Kisor, 588 U.S. at 576–79).
In this case, the Commission’s interpretation is entitled to controlling
weight. We held in Yafa that “[t]he commentary is issued by the Commission as
its official position.” Id. Given the research and consideration the Commission
gives to § 2B1.1 crimes, “the commentary implicates the Commission’s
substantive expertise and reflects its fair and considered judgment.” Id. The
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 24-3429 D.C. No. Plaintiff - Appellee, 2:14-cr-00083-DJC-4 v. MEMORANDUM* RUSLAN KIRILYUK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of California Daniel J. Calabretta, District Court, Presiding
Submitted October 22, 2025 ** San Francisco, California
Before: CLIFTON, OWENS, and BUMATAY, Circuit Judges. Dissent by Judge BUMATAY. Ruslan Kirilyuk appeals from his 236-month sentence for wire fraud (18
U.S.C. § 1343), mail fraud (18 U.S.C. § 1341), aggravated identity theft (18 U.S.C.
§ 1028A), and failure to appear (18 U.S.C. § 3146). As the parties are familiar
* 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). with the facts, we do not recount them here. We affirm.
The district court sentenced Kirilyuk according to § 2B1.1 of the then-
operative 2023 Sentencing Guidelines. The Guidelines provided for graduated
offense level enhancements based on the amount of “loss,” but did not define
“loss.” U.S.S.G. § 2B1.1 (2023). Commentary to the Guidelines defined “loss” as
the “greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A) (2023).
Following this commentary, the district court used the $3.4 million intended loss in
Kirilyuk’s case, not the $1.4 million actual loss, to calculate his § 2B1.1 sentencing
enhancement. Kirilyuk objected that, in his view, the district court erred because
intended loss is an impermissible interpretation of “loss” under the Guidelines.
Because the error was preserved below, we review this issue de novo. United
States v. Trumbull, 114 F.4th 1114, 1117 (9th Cir. 2024).
“The Supreme Court has said that the commentary to the Guidelines ‘is akin
to an agency’s interpretation of its own legislative rules.’” Id. (quoting Stinson v.
United States, 508 U.S. 36, 45 (1993)). “As a result, we apply Kisor v. Wilkie, 588
U.S. 558 (2019), to determine whether to defer to the commentary’s interpretation
of a Guideline.” Id. at 1117–18 (footnote omitted) (citing United States v. Castillo,
69 F.4th 648, 655–56 (9th Cir. 2023)).
The first step under Kisor is to ask whether the meaning of “loss” in
U.S.S.G. § 2B1.1 is “genuinely ambiguous” after “exhaust[ing] all the ‘traditional
2 24-3429 tools of construction.’” Castillo, 69 F.4th at 655 (quoting Kisor, 588 U.S. at 575).
If “loss” is unambiguous, a court should not defer to the commentary. Id. Kirilyuk
argues that “loss” unambiguously refers only to actual loss. But we held otherwise
in United States v. Yafa, 136 F.4th 1194 (9th Cir. 2025). There, we concluded that
“because no single meaning of ‘loss’ is evident from § 2B1.1’s text, even after
employing the traditional tools of interpretation, a genuine ambiguity exists.”
Yafa, 136 F.4th at 1198.
Step two under Kisor requires asking whether the commentary’s
interpretation of the Guidelines is “reasonable,” or whether it “come[s] within the
zone of ambiguity the court has identified after employing all its interpretive
tools.” Id. (alteration in original) (quoting Kisor, 588 U.S. at 575–76). Text,
structure, history, and purpose—the court’s traditional interpretive tools—indicate
that “intended loss” falls within the zone of ambiguity that Yafa identified.
Kirilyuk insists that the plain and ordinary meaning of “loss” includes only
actual loss. But we have “often recognized ‘intended loss’ as part and parcel of the
plain meaning of the term ‘loss.’” United States v. Hackett, 123 F.4th 1005, 1012
(9th Cir. 2024) (canvassing Ninth Circuit precedent). See also United States v.
Diop, No. 24-3774, 2025 WL 2602277, at *2 (9th Cir. Sept. 9, 2025) (concluding
“‘intended loss’ is a permissible interpretation of ‘loss.’”).
This has also been the consistent position of the Sentencing Commission.
3 24-3429 The Sentencing Guidelines for fraud were originally laid out in § 2F1.1, which set
offense levels based on the “estimated, probable or intended loss.” U.S.S.G.
§ 2F1.1(b)(1) (1987). In 2001, the provision for fraud was consolidated into the
provision for theft, § 2B1.1, but nowhere did the Commission indicate an intent to
change the longstanding understanding that loss, in fraud cases, could refer to
intended or actual loss. See U.S.S.G. § 2B1.1 (2001). And in response to the
disagreement among courts over whether the commentary definition of “loss”
impermissibly expanded § 2B1.1, the Commission clarified its intent by moving
the “loss” definition from the commentary into the Guidelines themselves. See
U.S.S.G. § 2B1.1(b)(1)(A) (2024).
Other provisions of the Guidelines also indicate that “loss” may encompass
“intended loss” as well as “actual loss.” U.S.S.G. § 1B1.3(a)(3) describes the
relevant sentencing factors as including not only “all harm that resulted from the
[defendant’s] acts and omissions” but also “all harm that was the object of such
acts and omissions.” In general, “the sentences of defendants convicted of federal
offenses should reflect the nature and magnitude of the loss caused or intended by
their crimes.” U.S.S.G. § 2B1.1 cmt. background (2023) (emphasis added). This
is because “loss serves as a measure of the seriousness of the offense and the
defendant’s relative culpability.” Id. Kirilyuk’s interpretation “would hamstring
courts in fulfilling this purpose” by preventing them from adequately assessing a
4 24-3429 defendant’s culpability. Yafa, 136 F.4th at 1198. Thus, the commentary’s
treatment of “loss” as including “intended loss” is reasonable.
Step three under Kisor asks whether the Commission’s interpretation
is entitled “to ‘controlling weight.’” Trumbull, 114 F.4th at 1118 (quoting Kisor,
588 U.S. at 576). Kisor instructs courts to assess “whether the interpretation
(1) constitutes the agency’s ‘official position, rather than any more ad hoc
statement not reflecting the agency’s views,’ (2) implicates the agency’s
‘substantive expertise,’ and (3) reflects the agency’s ‘fair and considered
judgment.’” Yafa, 136 F.4th at 1199 (quoting Kisor, 588 U.S. at 576–79).
In this case, the Commission’s interpretation is entitled to controlling
weight. We held in Yafa that “[t]he commentary is issued by the Commission as
its official position.” Id. Given the research and consideration the Commission
gives to § 2B1.1 crimes, “the commentary implicates the Commission’s
substantive expertise and reflects its fair and considered judgment.” Id. The
interpretation of “loss” as including “intended loss” is longstanding and does not
“reflect a ‘convenient litigating position’ or ‘new interpretation . . . that creates
“unfair surprise” to regulated parties.’” Id. (omission in original) (quoting Kisor,
588 U.S. at 579).
The commentary’s interpretation of “loss” as “the greater of actual loss or
intended loss” satisfies all three of the Kisor factors and is entitled to deference.
5 24-3429 Therefore, the district court did not err when it sentenced Kirilyuk according to the
loss he intended to inflict.
AFFIRMED.
6 24-3429 FILED OCT 30 2025 United States of America v. Kirilyuk, No. 24-3429 MOLLY C. DWYER, CLERK BUMATAY, Circuit Judge, dissenting: U.S. COURT OF APPEALS
The government maintains that we should defer to the United States
Sentencing Commission’s interpretation of “loss” as “the greater of actual or
intended loss.” The majority, applying Kisor v. Wilkie, 588 U.S. 558 (2019), agrees
and affirms Ruslan Kirilyuk’s sentence. But in my view, the Commission’s
interpretation is not a reasonable interpretation entitled to deference. So I
respectfully dissent.
“[W]e apply Kisor v. Wilkie[] to determine whether to defer to the
commentary’s interpretation of a Guideline.” United States v. Trumbull, 114 F.4th
1114, 1117–1118 (9th Cir. 2024) (simplified). We will not defer to the Commission’s
interpretation of a Sentencing Guideline if the interpretation is not a “reasonable”
one. Kisor, 588 U.S. at 575–76 (simplified).
The Commission’s interpretation is reasonable if it “come[s] within the zone
of ambiguity the court has identified.” Id. at 576. When making this determination,
a court “employ[s] all its interpretive tools” to “at least establish the outer bounds of
permissible interpretation.” Id.; see also United States v. Kirilyuk (Kirilyuk I), 29
F.4th 1128, 1137 (9th Cir. 2022) (“In interpreting the Guidelines, we apply the
ordinary tools of statutory interpretation[.]”). An agency’s interpretation is not
automatically reasonable. Instead, reasonability “is a requirement an agency can
fail.” Kisor, 588 U.S. at 576. The Commission fails this requirement. 1 Although “a review of dictionaries reveals that ‘loss’ can have a range of
meanings[,]” Kirilyuk I, 29 F.4th at 1137, this range is not limitless. Instead, each of
the context-specific meanings share a common denominator: they all refer to a
diminution that actually happened. Take, for instance, a survey of the entries for
“loss” in Black’s Law Dictionary. These entries include “actual loss,” “economic
loss,” “intangible loss,” and “unrealized loss.” Loss, Black’s Law Dictionary (11th
ed. 2019). Each of these entries, in turn, have their own definition. An “actual loss”
refers to a term of art in insurance law, specifically the “real and substantial
destruction of insured property.” Id. An “economic loss” is a “monetary loss such
as wages or lost profits.” Economic Loss, Black’s Law Dictionary (11th ed. 2019).
“Intangible loss” is “damage caused by the disruption of an intangible right or
benefit.” And an “unrealized loss” is when an asset “has decreased in market value.”
Loss, Black’s Law Dictionary (11th ed. 2019).
This cursory survey reveals what common sense suggests: when “ordinary
speakers of the English language say ‘loss,’ they mean something that actually
occurred.” United States v. Boler, 115 F.4th 316, 333 (4th Cir. 2024) (Quattlebaum,
J., dissenting). When insured property is destroyed, the destruction truly occurs.
Similarly, if an investor holds $100 worth of stock, and that stock decreases in value
to $80, the investor has suffered an unrealized loss of $20. That the stock’s value
may increase to $150 the very next day does not negate that the stock actually
2 decreased in value the day before. Even if the investor sells the stock when it is
valued at $150 and realizes a gain of $50, she still experienced an actual diminution
in value when the stock value fell to $80. So even an unrealized loss involves a
diminution that truly occurs.
The Guidelines’ structure and context do not change this analysis. The
majority, for example, cites § 1B1.3 as structural evidence for its view that “intended
loss” is a permissible interpretation of “loss.” But that’s wrong. Section 1B1.3
requires that “[u]nless otherwise specified,” both the harm that “resulted from” an
offense and the harm that “was the object of” the offense help determine specific
offense characteristics. But this section does not expand the permissible range of
interpretations for the term “loss.” Instead, it offers general application principles
for the entire Sentencing Guidelines. See U.S.S.G. Part B (“General Application
Principles”). Some of the federal offenses in the guidelines are strictly inchoate
offenses. See, e.g., U.S.S.G. § 2.X.1.1 (“Other Offenses: Conspiracy, Attempt,
Solicitation”). So, of course, the specific offense characteristics for those offenses
must be based on the harm that “was the object of” the offense. But § 2B1.1 deals
with economic and property offenses. And in the context of an economic or property
loss, even an unrealized one, the term “loss” is ordinarily used to convey “an event
or state of being that has actually happened.” Boler, 115 F.4th at 330 (Quattlebaum,
J., dissenting).
3 A loss can be tangible or intangible, realized or unrealized. But no reasonable
user of the English language, in my view, would use the term “loss” to refer to
something that never happened. A reasonable interpretation of “loss” must describe
something that actually happened. Because an “intended loss” never happened, it is
not a reasonable agency interpretation.
We do not defer to unreasonable agency interpretations. See Kisor, 588 U.S.
at 575–76 (simplified). And we should not have done so here. I respectfully dissent.