United States v. Blagojevic
United States v. Blagojevic
Opinion of the Court
SUMMARY ORDER
Defendant Nicholas Blagojevic, who stands convicted pursuant to a guilty plea of robbery in violation of 18 U.S.C. § 1951, appeals the 92-month sentence imposed in his case. Blagojevic contends that his sentence is infected by procedural error because record evidence does not support the district court’s (1) application of U.S.S.G. § 2B3.1(b)(2)(F) (providing two-level enhancement for death threat made in course of robbery) and U.S.S.G. § 2B3.1(b)(7)(C) (providing two-level enhancement for loss of more than $50,000 and less than $250,000) to the calculation of his Sentencing Guidelines range, and (2) order that, he pay $7,500 in restitution to the victim pursuant to 18 U.S.C. § 3663A.
At the outset, we note that Blago-jevic failed to present the factual challenges he raises on appeal to the district court, an omission that would normally limit our review to plain error. See Fed. R.Crim.P. 52(b). With respect to Blago-jevic’s Guidelines challenges, however, even plain error review is foreclosed by
We note, moreover, that Blagojevic would secure no more relief on plain error review. The district court applied the challenged provisions in reliance upon the undisputed facts set forth in the PSR, and Blagojevic is now barred from challenging those facts on appeal. See Fed.R.Crim.P. 32(i)(3)(A) (“At sentencing, the court ... may accept any undisputed portion of the presentence report as a finding of fact.”); United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005) (“Since the Defendant made no objection to the facts contained in the PSR, the fact [contained therein] may be taken as admitted.”); United States v. Riz-zo, 349 F.3d 94, 99 (2d Cir. 2003) (“[I]f a defendant fails to challenge factual matters contained in the presentence report at the time of sentencing, the defendant waives the right to contest them on appeal.”).
Specifically, the district court applied U.S.S.G. § 2B3.1 (b)(2)(F) in light of the victim’s statement that she interpreted the robbers’ order to stay in the back or they would return and “get her” as a death threat. PSR at 6 ¶ 25. Blagojevic does not dispute the victim’s account of what was said, only the reasonableness of her inference. See U.S.S.G. § 2B3.1(b)(2)(F) cmt. 6 (“[T]he intent of this provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, a fear of death.”). Because we conclude that the inference was fairly supported by the totality of the circumstances, Blagojevic fails to demonstrate any error, much less plain error, in the application of § 2B3.1(b)(2)(F).
A similar conclusion obtains with respect to § 2B3.1(b)(7)(C). Because Bla-gojevic failed to challenge the PSR’s calculation that the stolen merchandise was worth $140,000, see PSR at 5 ¶ 18, that becomes an undisputed fact upon which the district court was entitled to rely in assessing loss. See United States v. Fagans, 406 F.3d at 142. Moreover, Blago-jevic does not dispute that the robbers stole 30-40 diamond rings. Whatever questions Blagojevic might now raise as to how these rings came to be valued at $140,000, it is so plainly more likely than not that their value exceeded $50,000 as to preclude our finding plain error. See United States v. Irving, 554 F.3d 64, 72 (2d Cir. 2009) (“The burden of proving a fact relevant to sentencing is on the government, which must prove the fact ‘by a preponderance of the evidence.’ ”).
Finally, Blagojevic submits that the district court erred in finding that, even after recovery of the stolen jewelry, the victim sustained an actual loss of $15,000, and in ordering him to pay restitution in half that amount. We disagree. The
Because we reject Blagojevic’s sentencing challenges, the judgment of conviction is hereby AFFIRMED.
. Although the government references a $5,000 order of restitution, the record indicates that Blagojevic was directed to compensate the victim in the amount of $7,500. The discrepancy makes no difference to our analysis.
. We need not here decide whether to adopt the Ninth Circuit's reasoning in United States v. Tyler, 767 F.2d 1350 (9th Cir. 1985), cited by Blagojevic. That case is distinguishable both because it involved a different restitution statute and because the government's delay in returning the property at issue exceeded a year.
Reference
- Full Case Name
- United States v. Nicholas BLAGOJEVIC
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- Published