Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-23-2008

USA v. Rybner
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3156




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Recommended Citation
"USA v. Rybner" (2008). 2008 Decisions. Paper 500.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/500


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                                                             NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                 No. 07-3156


                       UNITED STATES OF AMERICA

                                      v.

                            ANATOLY RYBNER
                               a/k/a TONY

                               Anatoly Rybner,
                                                 Appellant


                On Appeal from the United States District Court
                           for the District of New Jersey
                        (D.C. Criminal No. 06-cr-00779-1)
               District Judge: The Honorable Katharine S. Hayden


                   Submitted Under Third Circuit LAR 34.1(a)
                              September 9, 2008

        BEFORE: SLOVITER, FUENTES, and NYGAARD, Circuit Judges.

                          (Filed: September 23, 2008)



                          OPINION OF THE COURT



NYGAARD, Circuit Judge.
       Because our opinion is wholly without precedential value, and because the parties

and the District Court are familiar with its operative facts, we offer only an abbreviated

recitation to explain why we will affirm the order of the District Court.

       While awaiting sentencing for a bank fraud scheme to which he pleaded guilty,

Anatoly Rybner committed more fraud and other crimes. He received a forty-six month

sentence for the first round of fraud, and eventually entered into a second plea agreement

for the later crimes. In the second agreement, he pleaded guilty to one count of bank

fraud and one count of engaging in unlawful monetary transactions. In this agreement he

also stipulated to yet another instance of bank fraud as an uncharged offense. On appeal,

Rybner challenged the legitimacy of the second plea agreement and asserted that, for

numerous reasons, the sentence that he received for those crimes is wrong. He also

argued that his two sentences should be served concurrently rather than consecutively.

We find Rybner’s appeal to be without merit.

       Because Rybner received a sentence that was below the sentencing guidelines, he

paradoxically argued on appeal that his plea agreement is invalid, since the agreement

rested upon a sentence “within the guidelines.” While highlighting the specious nature of

this argument, the government conceded that an ambiguity in the agreement can be

argued. Instead the government asserted Rybner’s substantive arguments are meritless.

We agree.

       Contrary to Rybner's assertion, the District Court fully considered an array of

evidence in deciding upon the sentence. The District Court reviewed Rybner's

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psychological examination on the record. Moreover, the District Court assessed multiple

factors, including a motion for a downward departure from the government, in deciding

upon the sentence. We conclude that the District Court followed proper procedures for

determining a sentence. United States v. Goff, 

(3d Cir. 2007).

       Moreover, contrary to Rybner's argument, the District Court did not consider

erroneous facts in determining this sentence. The record makes clear that the District

Court referenced Rybner’s prior bank fraud conviction when it referred to “crimes of a

like nature.” The instant crime was committed while Rybner awaited sentencing for that

crime. The government pointed to this fact, and the District Court properly considered it.

We find no support for Rybner’s contention that the District Court was referencing

another matter.

       Finally, Rybner argued that the previous bank fraud and auto fraud crimes should

be served simultaneously, not consecutively. Nonetheless, Rybner entered into an

unconditional guilty plea to the offenses in question, which waived this issue. At the

time, he clearly understood that he would be sentenced separately for the offenses.

Furthermore, in arguing for a lenient sentence, Rybner’s counsel focused upon the fact

that the two sentences would be served consecutively. Therefore, the District Court did

not err in requiring Rybner to serve consecutive sentences.

       For all of these reasons, we will affirm the order of the District Court.




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