United States of America v. EVGUENI POJILENKO a/k/a EUGENE, a/k/a ZHEKA Evgueni Pojilenko

PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-4446
UNITED STATES OF AMERICA
v.
EVGUENI POJILENKO
a/k/a EUGENE, a/k/a ZHEKA
Evgueni Pojilenko, Appellant
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 02-cr-00254-2)
District Judge: Hon. R. Barclay Surrick
Argued June 7, 2005
BEFORE: AMBRO, STAPLETON, and ALARCON,*
Circuit Judges
(Opinion Filed July 27, 2005)
* Hon. Arthur L. Alarcon, Senior United States Circuit Judge for the
Ninth Circuit, sitting by designation.

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Joel Harvey Slomsky (Argued)
1601 Market Street
16 Floorth
Philadelphia, PA 19103
Attorney for Appellant
Andrea G. Foulkes
Mark J. Ehlers (Argued)
Office of the United States Attorney
615 Chestnut Street - Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Evgueni Pojilenko challenges both his conviction
and sentence. First, Pojilenko maintains he was deprived of a fair
trial as a result of the admission into evidence of certain references to
organized crime. Because we find that the District Court did not
commit plain error in allowing the challenged testimony, we will
affirm Pojilenko’s judgment of conviction. Second, Pojilenko
challenges his sentence pursuant to United States v. Booker, 125 S.
Ct. 738 (2005). We will vacate Pojilenko’s sentence and remand for
resentencing in accordance with Booker.
I.

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From 1999 to 2002, Pojilenko was involved in a criminal
enterprise known as the “KGB,” an organization led by Leonid
Chernyak that committed various crimes including robbery, extortion,
fraud, and drug trafficking. Pojilenko served, in common parlance,
as “muscle” for the organization.
In December 2000, Chernyak devised a scheme to rob several
potential drug purchasers. Two women attempted to purchase 200
pills of ecstacy. One of the women knew a drug dealer named “Greek
John,” who told them that he had a source in Philadelphia who could
supply the drugs. That source was a KGB associate, 16 year old
Leonid Kadomsky. Kadomsky sought to broker the ecstacy sale
between Greek John and the KGB.
Chernyak instead decided that the KGB would rob the two
women and Greek John when they appeared with the money to buy
the drugs. Chernyak planned the robbery, recruited Pojilenko and
another man, Kitiashvili, to rob the purchasers, and later instructed
them on how to divide the money. Cherynak had Kadomsky detain
the robbery victims until Pojilenko and Kitiashvili arrived and
physically robbed the individuals.
In April 2002, a federal grand jury indicted Pojilenko on 48
counts of RICO and RICO conspiracy. Racketeering acts 8A, 8B and
8C charged Pojilenko with robbery and conspiracy to rob during the
above-described incident.
At trial, the District Court allowed the following background
testimony:
(1) Agent Kepple of the FBI testified that he was assigned
to the organized crime squad and had been previously
assigned to the Eurasian Organized Crime Squad;

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(2) Another FBI agent reported that he was a member of
the Organized Crime Squad;
(3) A Philadelphia police officer testified that he worked
with the case agent and other federal agents assigned
to the Eurasian Organized Crime Squad; and
(4) An agent of the Pennsylvania Attorney General’s
office testified that his investigation proceeded in
cooperation with the FBI’s Eurasian Organized Crime
Squad.
Each law enforcement official then testified about his respective
investigations of Pojilenko and the other co-defendants.
Evidence introduced at trial revealed that Pojilenko’s
interaction with Kadomsky related to the robbery in question was
very limited. The only evidence of their interaction that night was
that (1) Kadomsky spoke with either Pojilenko or Kitiashvili on the
phone on the night of the robbery (but did not know to which
individual he actually spoke), and (2) Chernyak told Pojilenko to
hurry along to the robbery location because Kadomsky wouldn’t
“hold the girls for 20 minutes.”
Pojilenko was found guilty. In calculating his sentence for
racketeering act 8, the District Court applied a two-level enhancement
for the use of a minor, pursuant to U.S.S.G. § 3B1.4. The Court then
sentenced Pojilenko to 168 months of imprisonment.
Pojilenko now appeals, arguing (1) that the admission of the
above-referenced law enforcement officers’ testimony was error, (2)
that his sentence must be vacated in light of Booker, and (3) that the

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We have jurisdiction over this appeal pursuant to 28 U.S.C. §§1
1291 and 3742.
Pojilenko also objects to the fact that one other witness testified2
that the term “serious guy,” a term which was applied to him, referred
to people who may be close to the “mafia.” However, that testimony
was probative of Pojilenko’s intent to create fear in order to achieve
extortion. See United States v. DiSalvo, 34 F. 3d 1204, 1212, (3d Cir.
1994) (citing United States v. Polizzi, 801 F.2d 1543, 1555 (9th Cir.
1986) (testimony of alleged mafia connection relevant to victim’s
state of mind and defendant’s intent in collecting an extortionate
loan)).
5
two-level enhancement was improper.1
II.
Pojilenko contends that the testimony of law enforcement
officials in which those officials identified themselves as being
members of organized crime squads unfairly associated him with
organized crime and created a situation in which the jury believed he
was a dangerous man. Because this objection was not raised at trial,
we review for plain error. United States v. Boone, 279 F.3d 163, 174
n.6 (3d Cir. 2002). We find none. The challenged testimony “served
the legitimate purpose of apprising the jury of [the officers’]
qualifications for investigating Appellant’s activities.” United States
v. Vastola, 899 F.2d 211, 242 n.38 (3d Cir. 1990) (affirming the
District Court’s decision to permit two law enforcement officers to
testify that they were assigned to organized crime units, and rejecting
the argument that the testimony gave an improper inference that the
defendant had connections to organized crime). Its probative value
was not outweighed by the likelihood of undue prejudice to appellant.
Id.2

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In some situations requiring resentencing in accordance with3
Booker, it may be prudent to defer resolution of other challenges to
the District Court’s application of the Sentencing Guidelines. See,
e.g., United States v. Urban, 404 F.3d 754, 783 (3d Cir. 2005).
However, where we conclude, as we do here, that the District Court’s
interpretation of a Guideline provision material to resentencing is in
error, there is a substantial likelihood that the District Court will
again reject what we would hold to be the correct interpretation and
6
III.
Pojilenko was sentenced before the Supreme Court’s decision
in United States v. Booker, 125 S. Ct. 738 (2005), and the District
Court applied the Sentencing Guidelines as mandating the extent of
its sentencing discretion. Accordingly, we will vacate Pojilenko’s
sentence and remand for resentencing in accordance with Booker.
United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (denying
rehearing en banc).
IV.
While the District Court’s sentencing discretion will not be
limited by the Sentencing Guidelines on remand, the Sentencing
Reform Act of 1984 (“the Act”), even “without the ‘mandatory’
provision, . . . nonetheless requires judges to take account of the
Guidelines together with other sentencing goals.” Booker, 125 S. Ct.
at 764. Thus, the Act requires that the District Court consider, among
other things, “the Guidelines’ sentencing range established for . . . the
applicable category of offense committed by the applicable category
of defendant.’” Id. For this reason, Pojilenko’s challenge to the
District Court’s interpretation of U.S.S.G. § 3B1.4 is not a moot
issue, and we will address it in the interest of conserving judicial
resources. We review the District Court’s interpretation of the3

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that would occasion an unnecessary, second appeal.
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Sentencing Guidelines de novo. United States v. Mobley, 956 F.2d
450, 451 (3d Cir. 1992).
Pojilenko argues that there is no evidence he “used”
Kadomsky within the meaning of § 3B1.4 and that the use of
Kadomsky by other members of the conspiracy cannot be attributed
to Pojilenko for purposes of a § 3B1.4 enhancement. We agree.
Section 3B1.4 of the Sentencing Guidelines provides, in
relevant part, that “[i]f the defendant used or attempted to use a
person less than eighteen years of age to commit the offense or assist
in avoiding detection of, or apprehension for, the offense, increase
[the base offense level] by 2 levels.” U.S.S.G. § 3B1.4. The
application notes to this section define “use or attempted use” as
including “directing, commanding, encouraging, intimidating,
counseling, training, procuring, recruiting or soliciting.”
A. “Use” by Appellant
Numerous courts have held that there must be some
affirmative act beyond mere joint participation in a crime with a
minor to qualify as “use of a minor” under § 3B1.4. See United
States v. Parker, 241 F.3d 1114 (9th Cir. 2001) (holding defendant’s
participation in a robbery with a minor does not warrant a sentence
enhancement under § 3B1.4 “in the absence of evidence that the
defendant acted affirmatively to involve the minor in the robbery,
beyond merely acting as his partner”); United States v. Suitor, 253
F.3d 1206 (10th Cir. 2001) (holding that “the two-level § 3B1.4
increase is only applicable if a defendant directs, trains, or in some
other way affirmatively engages the minor participant in the crime of
conviction”); United States v. Ramsey, 237 F.3d 853, 860 (7th Cir.

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By contrast, we express no opinion with respect to Pojilenko’s4
contention that the District Court erred in applying the grouping rules
of the Guidelines. U.S.S.G. §§ 3D1.1-3D1.4. That contention, as we
understand it, does not attribute to the District Court an erroneous
interpretation of those rules. Rather, Pojilenko insists that the District
Court’s conclusions were not supported by the record.
8
2001) (noting that the defendant must still take affirmative acts to
involve the minor in the commission of the offense); United States v.
Butler, 207 F.3d 839 (6th Cir. 2000) (finding Congress contemplated
an offender who actually exercised some control or took some
affirmative role in involving the minor). We agree with our sister
Circuits that some affirmative act is necessary beyond mere
partnership in order to implicate § 3B1.4. To hold that any defendant
who merely participated with a minor in a crime is subject to a two-
level enhancement and would create, in effect, an across-the-board
enhancement that would conflict with the notion that this
enhancement is reserved for defendants who play a particular role in
the offense.
The District Court is, of course, free to allow the parties to
supplement the sentencing record on remand. We comment on the
current record only for the purpose of illustrating our view of the
scope of § 3B1.4. As we view the record, it would not support a4
finding that Pojilenko committed an affirmative act beyond mere
partnership. The record reflects that the recruitment and direction of
Kadomsky were performed by Chernyak before Pojilenko became
involved in the robbery as “muscle.” Even if Kadomsky did indeed
speak to Pojilenko on the telephone the night of the robbery, a
telephone call from Kadomsky in which he informed Pojilenko of
some robbery details cannot reasonably be viewed as Pojilenko taking
affirmative steps with respect to Kadomsky’s participation.
Similarly, the telephone call in which Chernyak told Pojilenko that

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Kadomsky could only “hold the girls for 20 minutes” may have
informed Pojilenko regarding Kadomsky’s involvement, but being
told something by Chernyak certainly is not the same as Pojilenko’s
directly performing an affirmative act to recruit or direct Kadomsky.
The record simply lacks evidence of any affirmative act by
Pojilenko to direct, command, encourage, intimidate, counsel, train,
procure, recruit or solicit Kadomsky. We must nevertheless address
whether Chernyak’s use of Kadomsky is attributable to Pojilenko.
B. Attribution of Use by a Co-Conspirator
The Court of Appeals for the Eleventh Circuit held in United
States v. McClain, 252 F.3d 1279 (11th Cir. 2001), that a § 3B1.4
enhancement is appropriate when the defendant engaged in jointly
undertaken criminal activity and another participant therein “used a
minor” so long as that use by another was reasonably foreseeable.
We have yet to rule on whether a co-conspirator’s reasonably
foreseeable use of a minor can be attributed to other members of a
conspiracy for purposes of applying an enhancement under § 3B1.4.
We now hold that it cannot.
The McClain Court’s view is predicated on § 1B1.3(a) of the
Sentencing Guidelines. That section provides that in a case of jointly
undertaken criminal activity, “[u]nless otherwise specified, . . .
adjustments in Chapter Three[ ] shall be determined on the basis of
. . . all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity . . . .” U.S.S.G.
§ 1B1.3(a)(1)(B). While this provision provides a generally

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This section embodies the principle enunciated in Pinkerton5
v. United States, 328 U.S. 640, 647-48 (1946), that a conspirator
is criminally liable for the acts of other members of the
conspiracy that were taken in furtherance of the conspiracy and
reasonably foreseeable as a necessary and natural consequence
of the conspiracy.
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applicable rule based on Pinkerton principles, it nevertheless5
expressly provides that the general rule does not apply to a guideline
provision if that provision “otherwise specifie[s].” In our view, §
3B1.4 “specifie[s]” that “use of a minor” enhancements be
individualized, and thus not based on the acts of co-conspirators.
First, the use of a minor provision specifically states that the
two-level enhancement will apply if “the defendant used or attempted
to use a person less than eighteen years of age.” U.S.S.G. § 3B1.4
(emphasis added). “Such defendant-specific language invites a
finding that the defendant being sentenced [used or attempted to use
a minor] before the enhancement may be applied.” United States v.
Moore, 29 F.3d 175, 178 (4th Cir. 1997).
More importantly, however, the structure of the Sentencing
Guidelines compels the conclusion that the use of a minor
enhancement must be based on an individualized determination of
each defendant’s culpability. Part B of Chapter Three of the
Sentencing Guidelines contains sections that “provide[ ] adjustments
to the offense level based upon the role the defendant played in
committing the offense.” U.S.S.G. Chapter Three, Part B,
Introductory Commentary (emphasis added). In addition to the use
of a minor adjustment, Part B permits sentencing adjustments based
on (1) whether a particular defendant was an organizer, leader,
manager or supervisor of a group criminal activity, see U.S.S.G. §

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3B1.1, (2) whether the defendant was a minor or minimal participant
in the criminal activity, see U.S.S.G. § 3B1.2, and (3) whether the
defendant abused a position of trust, see U.S.S.G. § 3B1.3. As the
Moore Court explained,
These roles in the offense provisions were designed to
permit sentencing judges to make individualized
distinctions among defendants engaged in a criminal
enterprise. By their very nature, [they] cannot be
based upon the actions of co-conspirators; for
example, a defendant who was not the organizer of a
criminal activity could not receive a role enhancement
merely because it was reasonably foreseeable that a
co-conspirator would organize a criminal scheme.
Moore, 29 F.3d at 179.
The role in the offense provisions of Part B are clearly
intended to distinguish between participants in an offense based on
whether their particular roles make them more or less culpable than
others who commit the same offense. As a result, “it would
undermine the very purpose of [these provisions] to hold that a
defendant may receive [a role in the offense enhancement] even if
that defendant did not personally satisfy the requirements” of the
particular enhancement provision. Id. “Assessing [a use of a minor
enhancement] against all co-conspirators fails to distinguish their
respective levels of culpability, and attributes to all co-conspirators
the exceptional malfeasance of one.” Id. “Such a result would . . .
render the characterization of § 3B1.4 as a ‘role in the offense’
adjustment a misnomer.” Butler, 207 F.3d at 848.
We hold that the Pinkerton principles of Section 1B1.3(a)
should not be used in applying the use of a minor provisions of §

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Relying on United States v. Detweiler, 338 F. Supp. 2d 1166 (D.6
Or., 2004), Pojilenko also challenges on separation of powers
grounds the constitutionality of the Sentencing Reform Act as
amended by the “Feeney Amendment,” Pub. L. No. 108-21, § 401,
117 Stat. 650 (2003). He asks us to direct that only the Sentencing
Guidelines in effect before the Feeney Amendment be applied on
remand in an advisory capacity. We decline to do so. This argument
was not advanced in the District Court, and our review is confined to
plain error. The Supreme Court rejected a separation of powers
challenge to the Act in Mistretta v. United States, 488 U.S. 361
(1989). While the Feeney Amendment’s change in the composition
of the Sentencing Commission may provide an arguable basis for
distinguishing Mistretta, the District Court clearly did not commit
plain error in applying the post-Feeney Amendment guidelines in this
case. Even if an argument is “plausible,” any error is not “plain”
when it was not “clear under current law.” United States v. Clark,
237 F.3d 293, 298-99 (3d Cir. 2001) (quoting United States v. Olano,
507 U.S. 725, 734 (1993)).
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3B1.4.6
V.
For the foregoing reasons, we will affirm the judgment of
conviction, vacate the sentence, and remand for resentencing
consistent with this opinion.

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United States v. Pojilenko – No. 03-4446
ALARCÓN, Circuit Judge, concurring:
I concur in Part II and Part III of the Court’s opinion.
Because we must remand this matter to the District Court for
resentencing in accordance with United States v. Booker, 125 S. Ct.
738 (2005), the District Court will be free to conduct an evidentiary
hearing to determine the appropriate sentence to impose, within its
discretion, pursuant to the Sentencing Guidelines.
Since we do not now know the evidence that the Government
will present, if any, to demonstrate that Appellant “used” Kadomsky
within the meaning of §3B1.4, I believe that question is not ripe for
review at this time. I would refrain from attempting to interpret the
term “used” in § 3B1.4 until after the District Court makes its
findings following resentencing proceedings.

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