United States v. Mykhaylo Botsvynyuk

• Court: Court of Appeals for the Third Circuit
• Decided: November 19, 2024
• Docket: 24-1930
• Status: Unpublished

Opinion

CLD-027 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 24-1930 ___________

UNITED STATES OF AMERICA

v.

MYKHAYLO BOTSVYNYUK, also known as Misha, also known as Mykhailo Churyk, also known as Mykhaylo Churuk, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Action No. 2:10-cr-00159-003) District Judge: Honorable Paul S. Diamond ____________________________________

Submitted on Appellees’ Motion for Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 November 7, 2024

Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges

(Opinion filed: November 19, 2024) _________

OPINION * _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Mykhaylo Botsvynyuk, a federal inmate proceeding pro se, appeals from the

District Court’s order denying his motion for compassionate release under 18 U.S.C.

§ 3582(c)(1), for a sentence modification under 18 U.S.C. § 3582(c)(2), and for

appointment of counsel. The Government has filed a motion for summary affirmance.

We grant the Government’s motion.

In 2015, following a jury trial in the District Court, Botsvynyuk was convicted of

conspiracy to conduct a racketeering enterprise in violation of 18 U.S.C. § 1962(d). He

was sentenced to 240 months’ imprisonment. We affirmed the conviction and sentence,

noting that the evidence showed that Botsvynyuk and his brothers “operated an

international human trafficking ring” that “held the workers under conditions of peonage

and involuntary servitude, using violence and threats of violence to keep them in line.”

United States v. Churuk, 797 F. App’x 680, 682 (3d Cir. 2020). In 2021, the District

Court denied Botsvynyuk’s first motion for compassionate release, determining that his

health conditions did not constitute extraordinary and compelling reasons that would

warrant a reduction of his sentence, and that, in any event, the 18 U.S.C. § 3553(a)

factors, especially the need to reflect the seriousness of the offense, did not support a

reduction. In 2022, the District Court, again emphasizing that the § 3553(a) factors did

not support a reduction, denied Botsvynyuk’s second motion for compassionate release

based on his desire to join the Ukrainian army.

In February 2024, Botsvynyuk filed his third motion under § 3582(c) and

requested that counsel be appointed to assist him. Botsvynyuk primarily argued that his

sentence should be reduced based on Amendment 821 to the United States Sentencing

2 Guidelines. See U.S.S.G. § 4C1.1. To the extent that Botsvynyuk argued for

compassionate release, it appears that he claimed that the extraordinary and compelling

reasons warranting a reduction in sentence were his good conduct during his

incarceration and the needs of his family in Ukraine. The District Court denied the

motion, and Botsvynyuk filed a timely notice of appeal.

We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion

the District Court’s ultimate decision to grant or deny a motion for sentence modification

and will not disturb the decision unless the District Court committed a clear error of

judgment. See United States v. Andrews, 12 F.4th 255, 259 (3d Cir. 2021); United States

v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). We may take summary action on any basis

supported by the record if the appeal presents no substantial question. See 3d Cir.

L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

Here, even assuming Botsvynyuk could show extraordinary and compelling

reasons that would warrant a reduction under § 3582(c)(1), or an applicable Guidelines

amendment that would warrant a reduction under § 3582(c)(2), we discern no abuse of

discretion in the District Court’s ultimate determination that the § 3553(a) factors,

especially the need to reflect the seriousness of Botsvynyuk’s offense, did not support a

reduction in sentence. See Churuk, 797 F. App’x at 682. Under these circumstances, the

District Court did not abuse its discretion in denying Botsvynyuk’s motion for

appointment of counsel. See generally Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993);

see also United States v. Fleming, 5 F.4th 189, 192 (2d Cir. 2021).

Accordingly, we will affirm the judgment of the District Court.