United States v. Avetisyan ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 6, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-3238
(D.C. No. 2:18-CR-20093-JAR-1)
GEGHAM AVETISYAN, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, EID, and CARSON, Circuit Judges.
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This matter is before the court on the government’s motion to enforce the
appeal waiver in Gegham Avetisyan’s plea agreement. Exercising jurisdiction under
28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
As an initial matter, we deny Avetisyan’s motion to strike the motion to
enforce as premature. Although the government filed its motion before the district
court clerk notified us either that the record was complete or that the clerk was
transmitting the record, see 10th Cir. R. 27.3(A)(3)(b) (providing that a motion to
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
enforce “must be filed within 20 days after” such notification), the clerk has since
provided the required notification and the record has been filed.
Avetisyan pleaded guilty to one count of wire fraud, in violation of 18 U.S.C.
§ 1343. In the written plea agreement, he confirmed his understanding that the
district court would “find . . . the facts used to determine the offense level” and
determine the applicable guidelines range. Mot. to Enforce, Attach. C at 2. He also
acknowledged that he understood the court would determine the sentence to be
imposed and that the government had “not made any promise or representation as to
what sentence he [would] receive.” Id. at 4. The agreement included a broad waiver
of appellate rights, including the “right to appeal . . . any matter in connection
with . . . the sentence [] imposed,” unless the government appealed the sentence or
the district court “depart[ed] upwards from the sentencing Guideline range [it]
determine[d] to be applicable.” Id. at 6-7. At the change of plea hearing, Avetisyan
assured the court that he understood both that the court had sole discretion to
determine the applicable guidelines range and sentence and that he was waiving his
right to appeal the sentence imposed.
The district court accepted Avetisyan’s guilty plea as knowing and voluntary,
determined that the applicable guidelines range was 21 to 27 months, and sentenced
him substantially below that range to 15 months’ imprisonment. Despite his appeal
waiver, Avetisyan filed this appeal.
In ruling on a motion to enforce, we consider: “(1) whether the disputed appeal
falls within the scope of the waiver of appellate rights; (2) whether the defendant
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knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the
waiver would result in a miscarriage of justice.” United States v. Hahn, 359 F.3d
1315, 1325 (10th Cir. 2004) (en banc) (per curiam).
Avetisyan filed a pro se response1 to the motion to enforce, arguing that he
should be permitted to appeal the reasonableness of his sentence because (1) it is
enough that he is willing to pay restitution; (2) a prison sentence is a hardship for his
family; and (3) the district court improperly added two levels to the base offense
level pursuant to U.S. Sentencing Guidelines Manual § 2B1.1(b)(11)(C)(i)
(U.S. Sentencing Comm’n 2018), because the fake driver’s license he used in
committing the offense included identifiers from multiple people so was not an
identification of one specific individual, see id. § 2B1.1 cmt. n.1 (incorporating
“means of identification” definition used in 18 U.S.C. § 1028(d)(7), which requires
that the “means of identification” identify “a specific individual”), and the
government cannot prove that he knew the identifiers belonged to real people.
Construing his response liberally, see Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam), we interpret his arguments as claiming that his sentence falls
outside the scope of the waiver and that enforcing the waiver would be a miscarriage
of justice.2 We reject both arguments.
1
At Avetisyan’s request, his counsel moved to withdraw so that he could
represent himself on appeal, and we granted that motion.
2
Nothing in his opposition suggests that Avetisyan is claiming he did not
knowingly and voluntarily waive his appellate rights. We thus do not address the
second Hahn factor. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir.
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Avetisyan’s sentence does not fall within either of the exceptions that would
permit an appeal: it does not exceed the applicable guidelines range and the
government did not appeal it. Although he challenges the basis for the district
court’s determination of the guidelines range, that issue falls within the scope of the
waiver, which bars an appeal of “any matter” related to the determination of the
sentence. Mot. to Enforce, Attach. C at 6. Accordingly, his appeal falls squarely
within the scope of his appellate waiver.
We also reject Avetisyan’s argument that enforcing the waiver will result in a
miscarriage of justice. A miscarriage of justice occurs where (1) “the district court
relied on an impermissible factor such as race”; (2) “ineffective assistance of counsel
in connection with the negotiation of the waiver renders the waiver invalid”; (3) “the
sentence exceeds the statutory maximum”; or (4) “the waiver is otherwise unlawful.”
Hahn, 359 F.3d at 1327 (internal quotation marks and citations omitted). To show
that an appeal waiver is “otherwise unlawful,” the defendant must prove that the
alleged error “seriously affect[ed] the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 1329 (internal quotation marks omitted). “The burden
rests with the defendant to demonstrate that the appeal waiver results in a miscarriage
of justice.” United States v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004).
Avetisyan’s arguments challenge the propriety of his sentence, not the legality
of his appeal waiver. Because the “otherwise unlawful” exception is focused on the
2005) (holding that this court need not address a Hahn factor that the defendant does
not contest).
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fairness of the proceedings, not the result of the proceedings, a defendant may not
rely on it to avoid enforcement of an appeal waiver based on alleged errors in the
calculation of his sentence. United States v. Smith, 500 F.3d 1206, 1212-13
(10th Cir. 2007).
CONCLUSION
For the reasons discussed above, we deny Avetisyan’s motion to strike the
government’s motion to enforce his appeal waiver, grant the motion to enforce, and
dismiss the appeal.
Entered for the Court
Per Curiam
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