USA v. Mykhaylo Chugay

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12984
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MYKHAYLO CHUGAY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 4:21-cr-10008-JEM-1
____________________
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2 Opinion of the Court 22-12984
Before WILSON, L UCK , and L AGOA , Circuit Judges.
PER CURIAM:
Mykhaylo Chugay appeals his total 292-month sentence for
conspiracy to harbor aliens and induce them to remain, conspiracy
to engage in money laundering, and conspiracy to defraud the
United States. On appeal, Chugay argues that the district court
erred by: (1) applying an aggravating role enhancement; (2) apply-
ing an obstruction of justice enhancement; (3) applying an en-
hancement for encouraging others to violate the internal revenue
laws; and (4) calculating the loss amount. Chugay also argues that
his sentence is procedurally and substantively unreasonable be-
cause the district court failed to adequately explain its sentence and
the sentence fails to avoid unwarranted sentence disparities. For
the following reasons, we affirm.
I.
A federal grand jury returned a three-count superseding in-
dictment against Chugay and codefendants Oleksandr Morgunov
and Volodymyr Ogorodnychuk. The indictment charged Chugay
with: one count of conspiracy to harbor aliens and induce them to
remain, in violation of 8 U.S.C. § 1324(a)(iii), (iv), and (v)(I) (Count
1); one count of conspiracy to engage in money laundering, in vio-
lation of 18 U.S.C. § 1956(h) (Count 2); and one count of conspiracy
to defraud the United States, in violation of 18 U.S.C. § 371 (Count
3). Oleg Oliynik and Oleksandr Yurchyk were co-conspirators
charged in a separate indictment.
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22-12984 Opinion of the Court 3
The superseding indictment alleged that, between August
2007 and through at least August 2021, the defendants owned and
operated several labor staffing companies, including: General La-
bor Solutions, LLC (“General Labor Solutions”); Liberty Specialty
Service, LLC (“Liberty Specialty Services”); Paradise Choice, LLC
(“Paradise Choice”); Paradise Choice Cleaning, LLC (“Paradise
Choice Cleaning”); Tropical City Services, LLC (“Tropical City
Services”); and Tropical City Group, LLC (“Tropical City Group”)
(collectively, the “labor staffing companies”). In practice, these la-
bor staffing companies were operated as one entity. Through these
companies, the defendants facilitated the employment of nonresi-
dent aliens who were not authorized to work in the United States
and provided workers for hotels, bars, and restaurants in the Key
West area (“hospitality clients”). Oliynyk and Yurchyk left the
United States and returned to Ukraine, where they have remained
since 2013 and 2016, respectively, but they continued to communi-
cate with the co-conspirators and to exercise control over the labor
staffing companies.
Ogorodnychuk and Morgunov pleaded guilty, and Chugay
continued to trial. Ogorodnychuk was sentenced to 48 months’
imprisonment, and Morgunov was sentenced to 96 months’ im-
prisonment.
At trial, the government called Sergiy Lopatyuk, who testi-
fied to the following. He was formerly partners with Oliynik and
Yurchyk in General Labor Solutions, an illegal labor staffing busi-
ness operating in Key West. Lopatyuk explained that there were
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4 Opinion of the Court 22-12984
several labor staffing companies operating in the Key West area
who provided workers for hospitality clients. Although the work-
ers were employed by the labor staffing companies, the hospitality
clients made the ultimate hiring decision, provided training, pro-
vided uniforms, and managed the workers on the property. The
hospitality clients would track the workers’ hours and send the to-
tal to the labor staffing companies. The hospitality clients did not
hire the workers directly because around 95 percent of the labor
staffing company workers did not have authorization to work, and
the labor staffing companies did not verify employment authoriza-
tion. The labor staffing companies also helped prevent the hotels
from having to pay employment taxes. General Labor Solutions
did not withhold federal employment or federal income taxes from
workers’ pay and did not pay the employer’s share of the employ-
ment taxes.
Chugay first came to work for General Labor Solutions as a
worker in 2007 or 2008, and he eventually took on a role in Oliynyk
and Yurchyk’s labor staffing business. The government introduced
a General Labor Solutions payroll from 2008, which Lopatyuk con-
firmed listed Chugay and Morgunov as workers placed at Key West
restaurants. The government introduced the Articles of Organiza-
tion for Liberty Specialty Service, filed in 2009, signed by Chugay,
who was listed as the manager. Oliynyk and Yurchyk kicked
Lopatyuk out of the labor staffing business around 2010, and he
moved to Miami.
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22-12984 Opinion of the Court 5
Ogorodnychuk testified to the following. He began helping
Chugay run the labor staffing companies in around 2016. To his
knowledge, about 80 percent of the labor staffing companies’ work-
ers were illegal aliens without work authorization. He testified
that at least ten people were involved in the conspiracy and that
Oliynik and Yurchyk were at the top of the hierarchy. When asked
how he perceived himself in terms of a relationship vis-à-vis other
members of the conspiracy, Ogorodnychuk stated, “I was just a
hired hand pretty much,” but that he and Chugay “pretty much
have an equal relationship as far as the work is concerned, but per-
sonally I think [Chugay and Morgunov] were more involved.”
Chugay reported to Oliynik and Yurchyk, and Ogorodnychuk re-
ported to Chugay. Chugay “was the one making all the decisions
directly” and “was more of a main guy” in the conspiracy than
Morgunov. Although other members of the conspiracy who lived
in Ukraine predominately reported to Oliynik and Yurchyk, they
also reported to Chugay. Chugay and Morgunov handled the
banking for the labor staffing companies and were in charge of wir-
ing money to conspirators in Ukraine. Co-conspirators paid others
to open Paradise Choice and Tropical City Services in their names,
but the named owners were not involved in running the company.
Chugay directed Ogorodnychuk to sign documents as the named
owner of the company.
In October 2020, Morgunov received a call from Homeland
Security Investigations (“HSI”) requesting an interview, but Oli-
ynyk, Yurchyk, and Chugay decided to send Ogorodnychuk be-
cause he did not speak English well, and therefore, the agents
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6 Opinion of the Court 22-12984
would be unable to extract information from him. He sat for an
interview with HSI in 2020 and lied to the government. When
asked why he lied, Ogorodnychuk responded that, before the in-
terview, “they were kind of preparing me and they just told me say
this, this and that, but all that was not true.” He stated that, after
the interview, the first thing he did was meet with Chugay. He
later spoke with Oliynik and Yurchyk, who suggested that he leave
the country, and he believed that they wanted him to leave because
“they might have thought that I may tell something wrong about
their business.” When asked whether Chugay, Oliynik, or Yurchyk
gave him any compensation after that, he responded that “they”
paid for his and his family’s tickets to Ukraine and sent other money
to his family on a few occasions. When asked whether he under-
stood that Oliynik, Yurchyk, and Chugay were paying him to stay
out of the United States, he responded, that yes, they were paying
him, but it was his decision to come back.
Dmytro Abamov, who formerly worked for a labor staffing
company, testified that, when the government investigation into
the labor staffing trade went public in 2021, all of the illegal labor
companies in the Key West area shut down, but Chugay continued
to operate. The government introduced audio messages from
Chugay to Abamov, in which he stated, “over the past 3 months,
90% of contractors have left the business. Only we are left. . . .
[W]e will not take them all. We specifically leave people overboard
so that they run there and create panic.” Abamov was surprised
that Chugay was still operating his business despite having notice
of an ongoing criminal investigation.
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22-12984 Opinion of the Court 7
The government called Rodrigo Alvarez, a former worker
for the labor staffing companies. He testified that Chugay sent him
a voice message in July 2021, in the midst of the investigation, in
which he stated, “if someone ever will contact you by phone . . . do
not respond, do not call them back, and better do not pick up the
phone on unknown numbers . . . this way they cannot get in touch
with you.” In another voice message to Alvarez, Chugay assured
the worker that he would not get in trouble for failing to pay taxes,
telling him, “if you did not have work authorization, you did not
have official way to pay taxes. So you’re fine.” Chugay also stated
in a voice message about the investigation, “I told her not to worry
. . . she doesn’t have to answer yet . . . [she] should write down the
number too and not answer it.”
Maryna Kulichenko, who was a worker for Paradise Choice,
formerly placed at Duval House, testified. The government pub-
lished an invoice from Paradise Choice to Duval House, which re-
flected that Paradise Choice charged Duval House $16.25 per hour
for Kulichenko’s services. Kulichenko testified that she took home
$15 per hour, and the remaining $1.25 was Paradise Choice’s fee.
They did not withhold any taxes, and the invoice did not reflect
any taxes withheld.
The government called Marina Coppens, C.P.A., who testi-
fied to the following. She began providing services to Chugay in
2016 or 2017, including filing corporate and personal tax returns for
him, providing 1099 Forms, and filing corporate incorporation doc-
uments. Chugay asked her to prepare the corporation paperwork
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8 Opinion of the Court 22-12984
for Tropical City Services, which listed Vladyslav Brovko as the
manager. Coppens interacted with Chugay when preparing busi-
ness returns for Tropical City Services and did not remember meet-
ing Brovko. Although an Internal Revenue Service (“IRS”) letter
assigning a tax identification number to Tropical City Services
listed Brovko as the responsible party, the phone number listed
matched Chugay’s phone number.
The government called Allison Kotsay, a custodian of rec-
ords for the IRS. The government submitted tax records from Gen-
eral Labor Solutions, Liberty Specialty Service, Paradise Choice,
Paradise Choice Cleaning, Tropical City Group, and Tropical City
Services. Kotsay testified that the records indicated that the labor
staffing companies did not pay employment taxes for the years
with available records. Kotsay also testified that Paradise Choice
Cleaning filed false tax returns. The records also revealed that Par-
adise Choice Cleaning issued 38 Forms 1099 between 2016 and
2020, and Tropical City Services issued 2 Forms 1099 between 2017
and 2020. Between 2016 and 2020, Paradise Choice and Tropical
City Group did not issue any Forms 1099.
The government introduced two sworn affidavits and depo-
sition testimony prepared by Chugay for a civil case. In his initial
affidavit, Chugay stated that many of the contract workers Paradise
Choice Cleaning provided to work for a Key West hotel were not
lawfully permitted to work in the United States, and that the com-
pany did not check the workers’ legal status. He also stated that
they did not withhold FICA, Medicare, and federal withholding
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22-12984 Opinion of the Court 9
taxes as required by law for the contract workers, and did not re-
quest or complete pre-employment forms, but provided Forms
1099 upon request. In his subsequent affidavit, Chugay stated, “I
mistakenly stated that ‘many’ of the contract workers my company
provided . . . were not lawfully permitted to work in the United
States. . . . I do not know the statement. . . of the Prior Affidavit to
be true.”
Jon Thibodeaux, an IRS agent employed in the office of
fraud enforcement, testified to the following regarding employ-
ment taxes. Federal Insurance Contribution Act (“FICA”) taxes re-
quired employers to withhold Medicare and Social Security taxes
(collectively “FICA taxes”) from employee’s wages, the Internal
Revenue Code required employers to withhold federal income
taxes from employee’s wages, and FICA required employers to pay
a portion of FICA taxes to the IRS. Employers of subcontractors
were responsible for providing and filing an IRS Form 1099, regard-
less of whether the worker requested the form.
Thibodeaux further testified to the tax loss caused by the
conspiracy. To calculate the tax loss, he reviewed payroll records
and tax calculations contained in QuickBooks records from
Chugay’s and Yurchyk’s computers. To analyze the payroll rec-
ords, Thibodeaux sorted the information by name of payee and the
dates to determine the amount of tax owed for each year. The
government submitted a spreadsheet of Thibodeaux’s calculations
of unpaid FICA taxes. The spreadsheet revealed that records were
available from 2008 to 2014 and from 2020 to 2021. Thibodeaux
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10 Opinion of the Court 22-12984
testified that he did not receive records for 2015 to 2019 and that
the records for 2013, 2014, and 2020 were missing data for some
quarters. The available records reflected payments totaling
$73,264,477.62 to a total of 9,561 unique individuals. Thibodeaux
calculated 15.3 percent—the total FICA tax rate—of the total sum
of payments to determine that the conspiracy caused a FICA tax
loss of $10,863,233.05 from 2008 to 2014, and 2020 and 2021.
Thibodeaux noted that, because his calculation excluded the years
and quarters with missing records and excluded federal income tax,
his estimate was a substantial understatement of the total tax loss
to the United States caused by the conspiracy.
And the government submitted a summary of bank transac-
tions in excess of $10,000, which revealed that the co-conspirators
laundered over $11 million between 2009 and 2021.
At the end of the seven-day trial, the jury found Chugay
guilty on all three counts.
Prior to sentencing, the U.S. Probation Office generated
Chugay’s presentence investigation report (“PSI”). The PSI re-
ported that, according to the government, from at least 2008
through 2021, Chugay, Oliynyk, Yurchyk, and Morgunov were re-
sponsible for a tax loss to the United States of over $25 million. The
PSI reported that the estimate was based on incomplete Quick-
Books records seized pursuant to search warrants and was based
on tax loss from records for the years 2008 to 2014, 2020, and 2021.
The PSI stated that Chugay encouraged others to violate the
tax law because his conduct encouraged workers not to pay taxes
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22-12984 Opinion of the Court 11
by failing to withhold employment taxes, by not reporting the
workers’ wagers to the IRS, and by not providing the workers with
annual tax forms. It purported that Chugay’s businesses also en-
couraged their hospitality business customers not to pay taxes for
the workers by providing a means to employ people off the hospi-
tality businesses’ payroll.
In October 2020, Ogorodnychuk appeared for a voluntary
interview with agents, during which he made several false state-
ments. According to the government, Chugay, Oliynyk, and
Yurchyk instructed Ogorodnychuk to lie to federal investigators
and then instructed him to leave the country. Once he fled,
Chugay, Oliynyk, and Yurchyk paid Ogorodnychuk to stay in
Ukraine. Chugay encouraged others not to cooperate with the in-
vestigation by telling others not to speak with or respond to calls
or messages from federal agents. Notably, while under criminal
investigation, competing illegal labor staffing companies in the Key
West area shut down, but Chugay and the Oliynyk Crew saw this
as an opportunity to expand their business and increase profits.
The PSI grouped Counts 1 and 2 pursuant to U.S.S.G.
§ 3D1.2(b), grouped those counts with Count 3, pursuant to
§ 3D1.2(d), and then calculated the offense level based on the most
serious of the counts comprising the group. The PSI calculated a
base offense level of 28 in accordance with U.S.S.G. § 2T1.4. The
PSI then applied: (1) a two-level increase, pursuant to U.S.S.G.
§ 2T1.1(b)(1), because Chugay failed to report or correctly identify
the source of income exceeding $10,000 in any year; (2) a two-level
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12 Opinion of the Court 22-12984
increase, pursuant to § 2T1.1(b)(2), because the offense involved
sophisticated means; (3) a two-level enhancement, pursuant to
U.S.S.G. § 2T1.9(b)(2), because the offense conduct was intended
to encourage others to violate the internal revenue laws; (4) a four-
level adjustment, pursuant to U.S.S.G. § 3B1.1(a), because Chugay
was an organizer or leader of a criminal activity that involved five
or more participants; and (5) a two-level adjustment, pursuant to
U.S.S.G. § 3C1.1, because Chugay willfully obstructed or impeded,
or attempted to obstruct or impede, the administration of justice.
These enhancements resulted in a total adjusted offense level of 40.
Chugay had no criminal convictions, so probation com-
puted a criminal history score of 0, and a criminal history category
of I. Based on his total offense level and criminal history category,
probation calculated a total guideline range of 292 to 365 months’
imprisonment.
Chugay filed objections to the PSI. In relevant part, Chugay
overall objected to the statement of facts, asserting that the facts
were not taken from the trial transcripts, and objected to specific
facts contained in it. Chugay objected to the four-level enhance-
ment, pursuant to § 3B1.1(a), for his role as an organizer or leader
of the conspiracy, on the grounds that the trial testimony sup-
ported that he was below others in the hierarchy. He also objected
to the two-level enhancement, pursuant to § 3C1.1, for obstruction
of justice, arguing that he merely informed others that they were
not required by law to volunteer information, that he did not tell
Ogorodnychuk to flee, and that Ogorodnychuk’s testimony at trial
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22-12984 Opinion of the Court 13
did not specify that Chugay told him to lie to agents. Chugay next
objected to the two-level adjustment, pursuant to § 2T1.9(b)(2), for
encouraging others to violate the internal revenue laws. He con-
tended that the testimony at trial showed that he did not actively
encourage others or promote the scheme to other taxpayers. Fi-
nally, Chugay objected to the PSI’s loss amount calculation of $25
million. He asserted that the number was based on estimation, that
only $10 million was proven at trial, and that the calculation in-
cluded the failure of employees to pay taxes on their wages. The
government opposed Chugay’s objections.
The parties also filed sentencing memoranda. In relevant
part, Chugay argued that 18 U.S.C. § 3553(a)(6) requires that courts
consider the sentences of similarly situated defendants. He con-
tended that the average sentence under § 2T1.1 with a minimum
loss of $25 million was 112.5 months imprisonment, and the me-
dian sentence was 108.5 months. He compared these numbers to
the recommended guideline range in his own case of 292 to 365
months’ imprisonment, arguing that the range was an outlier and
not reflective of the crimes. The government responded that the
Guidelines were specifically designed to reduce disparity in sen-
tencing for tax offenses, and argued that Chugay’s “multidimen-
sional and brazen conduct” warranted a sentence of 336 months’
imprisonment. It asserted that such a sentence was appropriate in
light of Ogorodnychuk’s sentencing, given that (1) Chugay was in-
volved in the conspiracy for much longer and resulted in a substan-
tially higher tax loss than Ogorodnychuk, and (2) Ogorodnychuk
accepted responsibility and cooperated by testifying at Chugay’s
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14 Opinion of the Court 22-12984
trial. It argued that average tax cases had lower sentences because
those cases did not involve the same level of aggravating conduct
as the instant case.
At sentencing, the district court stated that it had reviewed
the defense objections to the PSI, the government’s response to the
objections, and both parties’ sentencing memoranda. The district
court denied Chugay’s objections, explaining that it remembered
the trial “very well” and the facts of the case as they were pre-
sented, and believed that the objections were not well-founded.
Chugay argued that an offense level of 40 in a tax fraud case with a
loss of $25 million was unprecedented and that his guideline range
was higher than the sentences received in the district’s most noto-
rious fraud cases. The district court responded that it considered
the guideline range to be appropriate, articulating, “I don’t think
it’s the amount of dollars; it is the flaunting of the rules over and
over again, 9,000 times . . . . [T]his is not your normal tax evasion
case, and it shouldn’t be treated as the normal tax evasion case.”
The district court stated that it had considered the statements of all
parties, the PSI and advisory guidelines, and the 18 U.S.C. § 3553(a)
statutory factors. The district court then stated:
I will point out that the violations in this case were
not only long-term and not only involved a tremen-
dous number of people who also became subject to
violations of the law and subject to prosecution for
violating the law, but that when others in the Key
West area got out of the business because the word
got out that it was being investigated, Mr. Chugay
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22-12984 Opinion of the Court 15
and his partners took that as an opportunity to ex-
pand, and expanded their business and took over all
of the people that were going out of business.
The district court imposed a total sentence of 292 months’
imprisonment, consisting of 52 months as to Counts 1 and 3, to run
concurrently with each other, and 240 months as to Count 2, to
run consecutively to Counts 1 and 3. Chugay objected to the
court’s findings of fact and the manner in which the sentence was
pronounced, stating, “[w]e believe in our presentence report we
have cited trial testimony which contradicts the facts in the presen-
tence report which the Court adopted, and we object to the sen-
tence for the reasons previously stated.”
This timely appeal followed.
II.
When reviewing the district court’s findings with respect to
Sentencing Guidelines issues, we consider legal issues de novo, fac-
tual findings for clear error, and the court’s application of the
Guidelines to the facts with due deference, which is akin to clear
error review. United States v. Rothenberg, 610 F.3d 621, 624 (11th
Cir. 2010). The district court’s imposition of an aggravating role
enhancement is a factual finding that we review for clear error.
United States v. Shabazz, 887 F.3d 1204, 1222 (11th Cir. 2018). To be
clearly erroneous, the finding of the district court must leave us
with a “definite and firm conviction that a mistake has been com-
mitted.” Rothenberg, 610 F.3d at 624 (quoting United States v. Rodri-
guez-Lopez, 363 F.3d 1134, 1136–37 (11th Cir. 2004)). Further,
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“[w]here there are two permissible views of the evidence, the fact-
finder’s choice between them cannot be clearly erroneous.” United
States v. Smith, 821 F.3d 1293, 1302 (11th Cir. 2016) (alteration in
original) (quoting Anderson v. City of Bessemer City, 821 F.3d 1293,
1302 (11th Cir. 2016)).
“When the government seeks to apply an enhancement un-
der the Sentencing Guidelines over a defendant’s factual objection,
it has the burden of introducing ‘sufficient and reliable’ evidence to
prove the necessary facts by a preponderance of the evidence.”
United States v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013)
(quoting United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir.
2007)). The district court’s factual findings for sentencing purposes
may be based on evidence heard during trial, undisputed state-
ments in the PSI, or evidence presented during the sentencing hear-
ing. United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).
The Guidelines prescribe a four-level enhancement for a de-
fendant who was an organizer or leader of a criminal activity that
involved either (1) five or more participants or (2) was otherwise
extensive. U.S.S.G. § 3B1.1(a). We examine whether a defendant
was an organizer or leader, as compared to a manager or supervi-
sor, by considering the following seven factors:
(1) [the] exercise of decision making authority, (2) the
nature of participation in the commission of the of-
fense, (3) the recruitment of accomplices, (4) the
claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of the
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22-12984 Opinion of the Court 17
illegal activity, and (7) the degree of control and au-
thority exercised over others.
United States v. Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009) (quot-
ing United States v. Gupta, 463 F.3d 1182, 1198 (11th Cir. 2006)); ac-
cord U.S.S.G. § 3B1.1 cmt. n.4. There is no requirement that all of
these factors be present for the enhancement to apply, and there
may be more than one person who qualifies as a leader. United
States v. Dixon, 901 F.3d 1322, 1348 (11th Cir. 2018). “To qualify for
an adjustment under this section, the defendant must have been
the organizer, leader, manager, or supervisor of one or more other
participants.” U.S.S.G. § 3B1.1 cmt. n.2.
“[S]ection 3B1.1 requires the exercise of some authority in
the organization, the exertion of some degree of control, influence,
or leadership.” Martinez, 584 F.3d at 1026 (quoting Gupta, 463 F.3d
at 1198). Thus, the district court should determine whether the
facts that the government proves establish, standing alone or in
concert, at least one of the seven factors. See id. at 1027–28. The
Guidelines have clarified that “titles such as ‘kingpin’ or ‘boss’ are
not controlling” when deciding whether a defendant is a leader or
organizer rather than a supervisor or manager. § 3B1.1 cmt. n.4.
In many cases in which we have affirmed the district court’s appli-
cation of the four‑level enhancement, “there was evidence that the
defendant had recruited participants, had instructed participants, or
had wielded decision-making authority.” Shabazz, 887 F.3d at 1222
(quoting United States v. Caraballo, 595 F.3d 1214, 1231 (11th Cir.
2010)).
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18 Opinion of the Court 22-12984
Here, we conclude that the district court did not clearly err
in applying the enhancement for Chugay’s role as a leader or or-
ganizer in the offense. As discussed above, the evidence at trial es-
tablished that Chugay exercised decision-making authority, was a
significant participant in the commission of the offense, was di-
rectly involved in planning and organizing the scheme, and exer-
cised control and authority over others. See Martinez, 584 F.3d at
1026. Further, the nature and scope of the illegal activity was ex-
tensive, involving over 9,000 participants and spanning over a dec-
ade. And while Ogorodnychuk’s testimony indicated that Chugay
and Morgunov had similar roles in the conspiracy, Morgunov’s
role does not impact Chugay’s designation because there can be
more than one leader of a conspiracy. See Dixon, 901 F.3d at 1348.
Thus, the trial evidence established multiple factors and suf-
ficient evidence supports the court’s determination that Chugay
was an organizer or leader. Accordingly, we affirm as to this issue.
III.
When reviewing a court’s imposition of an adjustment for
obstruction of justice, we review the district court’s factual findings
for clear error. United States v. Guevara, 894 F.3d 1301, 1311 (11th
Cir. 2018). Pursuant to U.S.S.G. § 3C1.1, a defendant’s offense level
is increased by two levels if:
(1) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration
of justice with respect to the investigation, prosecu-
tion, or sentencing of the instant offense of
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22-12984 Opinion of the Court 19
conviction, and (2) the obstructive conduct related to
(A) the defendant’s offense of conviction and any rel-
evant conduct; or (B) a closely related offense.
A defendant’s intent to obstruct justice, or the potential that
his conduct may have evaded investigation or prosecution, is not
enough to support the adjustment. United States v. Banks, 347 F.3d
1266, 1270 (11th Cir. 2003). Instead, the government must provide
evidence that the defendant’s conduct “‘actually resulted’ in a hin-
derance.” Id. (quoting U.S.S.G. § 3C1.1 cmt. n.5(A)). Obstruction
of justice generally includes willfully “threatening, intimidating, or
otherwise unlawfully influencing a co-defendant, witness, or juror,
directly or indirectly, or attempting to do so.” U.S.S.G. § 3C1.1
cmt. n.4(A). The commentary does not define “unlawful influ-
ence,” but we have held that it includes urging a potential witness
to lie to the police. United States v. Amedeo, 370 F.3d 1305, 1318–19
(11th Cir. 2004). We have upheld the application of the enhance-
ment where a conspirator urged and financially aided a co‑con-
spirator to flee from law enforcement authorities for the purpose
of obstructing law enforcement’s access to potentially incriminat-
ing evidence. United States v. Rudisill, 187 F.3d 1260, 1264 (11th Cir.
1999). We have also upheld the application of the enhancement
when the defendant brought a potential witness contacted by fed-
eral agents into a walk-in freezer, asked him not to speak with fed-
eral agents, and told him to falsely advise federal agents that he
knew nothing of the offense. United States v. Garcia, 13 F.3d 1464,
1471 (11th Cir. 1994).
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20 Opinion of the Court 22-12984
The district court did not clearly err in applying an obstruc-
tion of justice enhancement based on the finding that Chugay and
his co‑conspirators instructed Ogorodnychuk to attend the HSI in-
terview intended for Morgunov and lie to investigators, and en-
couraged and aided him to flee the United States. Although there
were multiple permissible views of Ogorodnychuk’s testimony,
the district court was permitted to view the evidence as proof that
Chugay encouraged and paid Ogorodnychuk to leave the country
and remain abroad, and this choice cannot be clear error. Accord-
ingly, we affirm as to this issue.
IV.
The Guidelines provide for a two-level increase if “conduct
was intended to encourage persons other than or in addition to co-
conspirators to violate the internal revenue laws or impede, impair,
obstruct, or defeat the ascertainment, computation, assessment, or
collection of revenue.” U.S.S.G. § 2T1.9(b)(2). The enhancement
applies “where the conduct was intended to encourage persons,
other than the participants directly involved in the offense, to vio-
late the tax laws (e.g., an offense involving a ‘tax protest’
group . . . or an offense involving the marketing of fraudulent tax
shelters or schemes).” Id. cmt n.4.
The district court did not clearly err in applying an enhance-
ment for encouraging others to violate the internal revenue laws.
The evidence establishes that Chugay provided a means by which
his hospitality workers could avoid paying taxes and impeded the
ascertainment and collection of revenue by providing Forms 1099
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22-12984 Opinion of the Court 21
to workers only upon request and assuring workers that they
would not face penalties for failing to pay their taxes. Accordingly,
we affirm as to this issue.
V.
We review the district court’s determination of the loss
amount for clear error. United States v. Cavallo, 790 F.3d 1202, 1232
(11th Cir. 2015). The government has the burden of proving the
losses attributed to the defendant by a preponderance of the evi-
dence. Id. The Guidelines do not require that the sentencing court
make a precise determination of loss. Id. Instead, “a sentencing
court need only make a reasonable estimate of the loss, given the
available information.” Id. (alteration adopted) (quoting United
States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011)). The
Guidelines state that loss is calculated as “the greater of actual loss
or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). “Intended loss” is
the pecuniary harm that was intended to result from the offense.
Id. cmt. n.3(A)(ii). “Actual loss” is the “reasonably foreseeable pe-
cuniary harm that resulted from the offense.” Id. cmt. n.3(A)(i).
The district court is in a unique position to assess the relevant evi-
dence and estimate the loss, and we thus grant the sentencing
court’s loss amount determination “the appropriate deference.”
Cavallo, 790 F.3d at 1232 (quoting § 2B1.1 cmt. n.3(C)).
All relevant conduct may be considered in determining the
loss amount, including any acquitted conduct, as long as the gov-
ernment can prove the conduct by a preponderance of the evi-
dence. Id. at 1233–34. The district court may hold all participants
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22 Opinion of the Court 22-12984
in a conspiracy responsible for the losses resulting from the reason-
ably foreseeable acts of co-conspirators in furtherance of the con-
spiracy. See id at 1235. When the defendant challenges the loss
amount calculation, the government must support it “with reliable
and specific evidence.” United States v. Wilson, 788 F.3d 1298, 1318
(11th Cir. 2015). For example, we concluded that the district court
committed reversible error where it made no specific factual find-
ings on which to base the loss amount, and instead, stated that it
just “pick[ed] a figure, like any jury would, about halfway in be-
tween” the parties’ loss estimates. United States v. Gupta, 572 F.3d
878, 889 (11th Cir. 2009). But the sentencing court’s failure to make
specific factual findings as to loss amount “will not result in reversal
‘if the record otherwise supports the court’s determinations.’”
United States v. Maitre, 898 F.3d 1151, 1160 (11th Cir. 2018) (altera-
tion adopted) (quoting United States v. Baldwin, 774 F.3d 711, 727
(11th Cir. 2014)).
We conclude that the district court did not clearly err in
holding Chugay accountable for a loss amount of $25 million. Alt-
hough the court did not make individualized findings at sentenc-
ing, the record supports the court’s determination. For example,
as recounted above, Thibodeaux testified that the $10 million loss
estimate given at trial was an incomplete number and a substantial
understatement of the total tax loss to the United States consider-
ing that several years of records were unavailable, and the estimate
only included FICA taxes. Additionally, in response to Chugay’s
objections to the PSI, the government filed an explanation of the
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22-12984 Opinion of the Court 23
$25 million figure, walked through the calculations, and cited addi-
tional methodologies that yielded a figure greater than $25 million.
Thus, the government provided sufficiently reliable and spe-
cific evidence in its response to Chugay’s objections for the court
to find Chugay responsible for $25 million in losses by a preponder-
ance of the evidence. Accordingly, we affirm as to this issue.
VI.
We review the reasonableness of a sentence under a defer-
ential abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). The party challenging the sentence bears the burden
of establishing that it is unreasonable based on the facts of the case
and the 18 U.S.C. § 3553(a) factors. Shabazz, 887 F.3d at 1224. Typ-
ically, we review for plain error procedural sentencing issues raised
for the first time on appeal. United States v. Vandergrift, 754 F.3d
1303, 1307 (11th Cir. 2014). But we review a district court’s failure
to adequately explain a sentence de novo, even if the defendant did
not object below. United States v. Cabezas-Montano, 949 F.3d 567,
608 n.39 (11th Cir. 2020).
In reviewing the reasonableness of a sentence, we first con-
sider whether the district court committed a procedural error.
Gall, 552 U.S. at 51. A district court commits a procedural sentenc-
ing error when it imposes a sentence based on clearly erroneous
facts, fails to calculate or improperly calculates the guideline range,
fails to consider the § 3553(a) factors, treats the Guidelines as man-
datory, or fails to explain the chosen sentence. Id. While the dis-
trict court must consider the § 3553(a) factors, it need not state on
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24 Opinion of the Court 22-12984
the record that it has explicitly considered each of the factors or to
discuss each of them. United States v. Kuhlman, 711 F.3d 1321, 1326
(11th Cir. 2013). Instead, an acknowledgment by the district court
that it considered the factors is sufficient. United States v. Turner,
474 F.3d 1265, 1281 (11th Cir. 2007).
After ensuring that a sentence is procedurally sound, we
then consider the substantive reasonableness of a sentence. Gall,
552 U.S. at 51. The district court must impose a sentence that is
“sufficient, but not greater than necessary” to reflect the serious-
ness of the offense, promote respect for the law, provide just pun-
ishment, afford adequate deterrence, protect the public, and pro-
vide the defendant with any needed correctional treatment or
training. § 3553(a)(2). It must also consider the nature and circum-
stances of the offense, the defendant’s history and characteristics,
the kinds of sentences available, the applicable guidelines range,
any pertinent policy statements, and the need to avoid sentencing
disparities between similarly-situated defendants. § 3553(a)(1), (3)–
(7).
The weight given to each factor lies within the district
court’s sound discretion, and it may reasonably attach great weight
to a single factor. Kuhlman, 711 F.3d at 1327. Still, a district court
abuses its discretion if it “(1) fails to afford consideration to relevant
factors that were due significant weight; (2) gives significant weight
to an improper or irrelevant factor; or (3) commits a clear error of
judgment in considering the proper factors.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quoting United States
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22-12984 Opinion of the Court 25
v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc)). Although
we do not automatically presume that a sentence within the guide-
lines range is reasonable, we ordinarily expect such a sentence to
be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.
2008).
“[D]isparity between the sentences imposed on codefend-
ants is generally not an appropriate basis for relief on appeal.”
Cavallo, 790 F.3d at 1237 (quoting United States v. Regueiro, 240 F.3d
1321, 1325–26 (11th Cir. 2001)). When considering a claim of dis-
parity, we first consider “whether the defendant is similarly situ-
ated to the defendants to whom he compares himself.” United
States v. Duperval, 777 F.3d 1324, 1338 (11th Cir. 2015). For exam-
ple, “for purposes of § 3553(a)(6), a defendant who cooperates with
the Government and pleads guilty is not ‘similarly situated’ to his
co-defendant who proceeds to trial,” and “there is no unwarranted
disparity even when a cooperating defendant receives a ‘substan-
tially shorter’ sentence than a defendant who goes to trial.” Cavallo,
790 F.3d at 1237 (citation omitted) (quoting United States v. Do-
campo, 573 F.3d 1091, 1101 (11th Cir. 2009)). We have held that
evaluating alleged disparities requires “more than the crime of con-
viction and the total length of the sentences.” United States v. Az-
mat, 805 F.3d 1018, 1048 (11th Cir. 2015).
We have indicated that the defendant’s arguments about un-
warranted disparity should be specific enough for it to “gauge.”
United States v. Hill, 643 F.3d 807, 885 (11th Cir. 2011) (noting that
the defendant’s argument that there was an unwarranted disparity
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26 Opinion of the Court 22-12984
between his sentence and others who have been convicted of fraud
crimes throughout the country “would be difficult to gauge”). Re-
lying on Gall, we stated that the “avoidance of unwarranted dispar-
ities was clearly considered by the Sentencing Commission when
setting the Guidelines ranges,” and because the district court “cor-
rectly calculated and carefully reviewed the Guidelines range,” the
court “necessarily gave significant weight and consideration to the
need to avoid unwarranted disparities.” Id. (quoting Gall, 552 U.S.
at 54).
We conclude that Chugay’s sentence is procedurally reason-
able because the district court considered the § 3553(a) factors and
explained the chosen sentence. The court articulated its balancing
with imposing Chugay’s sentence, noting that “it is the flaunting of
the rules over and over again, 9,000 times” and that “this is not your
normal tax evasion case, and it should not be treated as the normal
tax evasion case.” It also explained that the sentence was appropri-
ate given the long-term violations, which involved a “tremendous
number of people who also became subject to violations of the law
and subject to prosecution for violating the law,” and given that
Chugay and his co-conspirators expanded when competitors under
investigation went out of business.
We also conclude that Chugay’s sentence is substantively
reasonable. The district court gave significant weight and consid-
eration to the need to avoid unwarranted sentencing disparities
when it correctly calculated and reviewed the Guidelines range,
and it was permitted to attach greater weight to the seriousness of
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22-12984 Opinion of the Court 27
the offense conduct. Chugay’s argument to the contrary fails to
take into consideration that the aggravating circumstances of this
case, which resulted in multiple enhancements, suggest that he is
not similarly situated to the average tax fraud perpetrator, regard-
less of loss amount. Again, the district court stated that “this is not
your normal tax evasion case, and it should not be treated as the
normal tax evasion case.” Further, Chugay’s sentence was within
the Guidelines range. See Hunt, 526 F.3d at 746. We thus affirm as
to this issue.
VII.
For all these reasons, we affirm Chugay’s sentence.
AFFIRMED.
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