United States v. Ashot Minasyan ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50185
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00329-ODW-3
ASHOT MINASYAN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted February 5, 2021
Pasadena, California
Filed July 9, 2021
Before: Ronald M. Gould, John B. Owens, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Gould
2 UNITED STATES V. MINASYAN
SUMMARY *
Criminal Law
The panel affirmed the district court’s judgment and
sentence in a case in which the defendant pleaded guilty to
conspiracy to commit health care fraud.
The defendant entered into a plea agreement in which he
waived the right to appeal his conviction except on the
ground that his plea was involuntary, and waived the right to
appeal most aspects of his sentence if the district court
determined that the offense level was no greater than 25.
The defendant contended that his plea was involuntary
because the district court did not give him a full and fair
opportunity to contest the loss amount at his sentencing
hearing. He appeared to contend both that his inability to
contest the loss amount violated due process, rendering the
sentence illegal, and that his plea was involuntary because
the district court’s sentencing procedure was inconsistent
with Fed. R. Crim. P. 32 and the Sentencing Guidelines. The
panel wrote that neither contention is persuasive because the
defendant had an adequate opportunity to contest the loss
amount at the sentencing hearing. The panel disagreed with
the defendant’s contention that the cumulative result of the
district court’s refusal to withdraw his guilty plea, denial of
motions for substitute counsel and continuances, and
statements at sentencing demonstrate that the district court
did not take seriously his challenge to the evidence on
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MINASYAN 3
intended loss. The panel wrote that the district court
permissibly denied the defendant’s motions, and therefore
the denials do not support the voluntariness claim, that the
defendant did not carry his burden to show that a “fair and
just reason” existed for the withdrawal, and that the district
court’s comments at sentencing—that the defendant should
not have pleaded guilty if he wanted to contest the amount
of loss—may have been casual or imprudent, but did not
render the guilty plea involuntary.
The defendant also contended that his plea was
involuntary because—in light of United States v. Miller, 953
F.3d 1095 (9th Cir. 2020)—the plea agreement improperly
stated the elements of the offense by stating that the requisite
intent for the defendant’s offense was “to deceive or cheat,”
instead of “to deceive and cheat.” The panel wrote that even
assuming Miller is controlling authority that would render
any error here plain, the defendant is unable to show his
substantial rights were affected, as he does not provide
evidence that he would not have pleaded guilty if he had
known the requisite intent was conjunctive, rather than
disjunctive.
The defendant contended that the appellate waiver is
unenforceable because the government breached the plea
agreement by attempting to influence the court to give a
higher sentence than the prosecutor’s recommendation and
by making statements at sentencing that were impermissibly
inconsistent with its position at trial. The panel held that the
government did not breach the plea agreement—explicitly
or implicitly—and that the defendant’s argument that a
breach occurred cannot render his appeal waiver
unenforceable.
4 UNITED STATES V. MINASYAN
COUNSEL
Kathryn Ann Young (argued), Deputy Federal Public
Defender; Cuauhtemoc Ortega, Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Defendant-Appellant.
Kelley Brooke Hostetler (argued), Attorney, Appellate
Section; Brian C. Rabbitt, Acting Assistant Attorney
General; Emily Z. Culbertson, Robyn N. Pullio, and Claire
Yan, Fraud Section, Criminal Division; Jeremy R. Sanders,
Appellate Counsel, Fraud Section; United States Department
of Justice, Washington, D.C.; for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
We consider the enforceability of an appeal waiver, and
that subject requires us to touch upon the justifications for
the plea-bargaining process and its significance in the
current American system of criminal justice. Ashot
Minasyan pleaded guilty to conspiracy to commit health care
fraud, in violation of 18 U.S.C. § 1349, and entered into a
plea agreement with the United States government. Under
the plea agreement, Minasyan waived the right to appeal his
conviction except on the ground that his plea was
involuntary. Minasyan also waived the right to appeal most
aspects of his sentence if the district court determined that
the offense level was no greater than 25. The district court
sentenced him to 78 months’ imprisonment and three years’
supervised release.
UNITED STATES V. MINASYAN 5
We hold that Minasyan’s appeal waiver is enforceable.
In so holding, we reject Minasyan’s contentions that (1) the
waiver was not knowing and voluntary, either by reason of
the district court’s sentencing procedure or its misstatement
of the intent element during the plea colloquy; and (2) the
government implicitly breached the plea agreement.
Because Minasyan’s appeal waiver is enforceable and the
language of the waiver encompasses his right to appeal on
the grounds raised, we affirm the district court’s judgment
and sentence.
I
A. Offense Conduct
In June 2015, the government filed its Second
Superseding Indictment against Dr. Robert Glazer, Marina
Merino, Angela Avetisyan, and Minasyan. 1 The
government alleged that between approximately 2006 and
May 2014, the co-defendants conspired to fraudulently bill
Medicare for services not rendered and for “medically
unnecessary” services.
Minasyan jointly owned Fifth Avenue Home Health
(“Fifth Avenue”), a home health services agency
incorporated in 2006, with Avetisyan. Avetisyan was the
office manager and Minasyan was responsible for day-to-
day operations. Fifth Avenue was located next to
Dr. Glazer’s clinic, which was housed at 5250 Santa Monica
1
We addressed Glazer and Merino’s cases in separate memorandum
dispositions. See United States v. Glazer, No. 19-50335, 2021 WL
982269, at *1 (9th Cir. Mar. 16, 2021); United States v. Merino, 846 F.
App’x 494 (9th Cir. 2021). Avetisyan’s case was addressed by another
panel. See United States v. Avetisyan, No. 19-50199, 2021 WL 2375923,
at *1 (9th Cir. June 10, 2021).
6 UNITED STATES V. MINASYAN
Boulevard in Los Angeles, California. Glazer’s clinic
accepted only Medicare-eligible patients. Avetisyan and
Minasyan paid “marketers” to recruit these patients and
bring them to the clinic and Fifth Avenue. The government
alleged that once the patients were recruited, Glazer billed
Medicare for medically unnecessary services and referred
the individuals to Fifth Avenue and other providers for
medically unnecessary home health services.
Between March 2010 and May 2014, Medicare paid
Fifth Avenue $4.2 million for home health care services,
most of which came from Glazer’s referrals. In 2015, a
Medicare contractor reviewed a sample of Fifth Avenue’s
Medicare billings from between January 2011 and
September 2014. As a result of the review, Medicare denied
all 240 claims for the 55 sampled beneficiaries.
B. Pre-Trial Motions and Plea Hearing
The 2015 indictment charged Minasyan with one count
of health care fraud conspiracy, in violation of 18 U.S.C.
§§ 1347 and 1349; seven counts of health care fraud, in
violation of 18 U.S.C. §§ 1347 and 2; and one count of
money laundering, in violation of 18 U.S.C. § 1956(h).
On August 15, 2018, Minasyan moved to replace his
appointed counsel. His counsel reported that Minasyan was
uncooperative and angry when counsel tried to communicate
the government’s offer. Minasyan contended that over
several years his attorney had pushed him to cooperate
against Glazer. The district court denied the motion and
explicitly told Minasyan that he was free to ignore counsel’s
advice.
Before the trial was set to begin, Minasyan agreed to
plead guilty to conspiracy to commit health care fraud. The
UNITED STATES V. MINASYAN 7
plea agreement set out the elements of the offense and
Minasyan agreed that he understood that all of those
elements must be met for him to be guilty of the offense.
The parties agreed to a base offense level of 6 under the
advisory Sentencing Guidelines, two additional levels for
abuse of trust, see U.S.S.G. § 3B1.3, and the appropriate
adjustment for acceptance of responsibility, see U.S.S.G.
§ 3E1.1. The government agreed to dismiss the remaining
counts for money laundering and health care fraud, but
Minasyan agreed that the district court could still consider
the conduct underlying those charges “in determining the
applicable Sentencing Guidelines range, the propriety and
extent of any departure from that range, and the sentence to
be imposed.”
As to the loss calculation, the parties agreed only to a
very broad range between $250,000 and $9,500,000,
yielding an addition of between 12 and 18 offense levels
pursuant to U.S.S.G. § 2B1.1.(b)(1), and potentially an
additional two-level enhancement for fraud involving a
federal health care program pursuant to U.S.S.G.
§ 2B1.1.(b)(7) (yielding either a 0 or +2 offense levels).
Given the lack of agreement on the loss amount, the
agreement was structured such that the government agreed
to recommend a low-end sentence if the district court
calculated Minasyan’s offense level to be at least 17, while
Minasyan’s waivers and obligations took effect only if the
district court calculated his offense level as 25 or below. If
Minasyan’s term of imprisonment fell within or below the
range corresponding to an offense level of 25, Minasyan
agreed to waive most of his rights to appeal his sentence.
Specifically, Minasyan agreed to waive: “the procedures and
calculations used to determine and impose any portion of the
sentence”; “the term of imprisonment imposed by the
Court”; any fine within the statutory maximum; “to the
8 UNITED STATES V. MINASYAN
extent permitted by law, the constitutionality or legality” of
any sentence under the statutory maximum; “the amount and
terms of any restitution order, provided it requires payment
of no more than $4,283,674.00”; and any term of probation
or supervised release under the statutory maximum. Perhaps
most importantly for our disposition of the case, he also
waived the right to appeal his conviction on any basis other
than that the plea was involuntary.
At the October 2019 plea hearing, Minasyan stated “No”
when asked whether anyone made promises to him that were
not set forth in the plea agreement. After the prosecution set
out the elements of the offense, which mirrored those in the
plea agreement, and the potential penalties, Minasyan stated
that he had no questions. The district court then specifically
asked Minasyan if he understood the portion of the plea
agreement in which he agreed that he could appeal his
conviction only on the basis that his plea was involuntary,
and the portion in which he waived his right to appeal most
aspects of his sentence if the district court calculated an
offense level that was at or below 25. Minasyan said that he
understood these points.
After the district court accepted Minasyan’s guilty plea,
the probation office recommended an 18-level increase for a
loss between $3.5 and $9.5 million, and a corresponding
sentencing range of 63 to 78 months. Consistent with its
obligations under the plea agreement, the government
recommended sentencing Minasyan to 63 months, the
bottom of the range. Minasyan’s sentencing memorandum,
however, argued that the government had to prove the value
of the loss by clear and convincing evidence and that the
appropriate offense level was 17, reflecting between
$250,000 and $550,000 of loss. He argued for a sentence at
the low end of the resulting 27-to-33-month range.
UNITED STATES V. MINASYAN 9
Minasyan objected to the Presentence Investigation Report’s
(“PSR”) assertions regarding loss amount and whether
evidence existed that Fifth Avenue was legitimately
providing home healthcare services to patients.
In March 2019, and again in April 2019, Minasyan made
unopposed motions to continue the sentencing hearing to
prepare expert reports that examined financial and patient
records. The district court denied both motions. Eleven days
before the scheduled sentencing hearing, Minasyan
requested new counsel and moved to withdraw his guilty
plea. 2 Minasyan’s counsel renewed his request for a
continuance if the district court denied the motion for
substitute counsel.
The district court held a hearing on Minasyan’s motion
on May 9, 2019. Minasyan was assisted by an Armenian
interpreter. His attorney reiterated that he and Minasyan
were having significant difficulty communicating. The
district court discussed the plea colloquy with Minasyan, and
he alternately answered “Yes” and “No” when asked if he
had “plead[ed] guilty because [he was] guilty.” Minasyan
said his attorney “pushed” him to plead guilty. Avetisyan’s
attorney intervened to state that Minasyan acknowledged
“some amount of wrongdoing” but was objecting to the
monetary loss attributed to him.
2
Our law generally permits withdrawal of a plea before sentencing
only for “fair and just reason[s].” Fed. R. Crim. P. 11(d)(2)(B). Also, in
determining whether new counsel should be appointed, we consider:
“(1) the adequacy of the district court’s inquiry; (2) the extent of the
conflict between the defendant and counsel; and (3) the timeliness of
defendant’s motion.” United States v. Reyes-Bosque, 596 F.3d 1017,
1033 (9th Cir. 2010). We address whether the district court permissibly
denied these motions in Part II.A.
10 UNITED STATES V. MINASYAN
The district court asked Minasyan whether he was
concerned that he might be “held responsible for conduct of
other people,” and Minasyan replied, “Yes.” Minasyan
acknowledged that he might have done something wrong,
but “the numbers are not correct.” The district court told
Minasyan that he could challenge the government’s request
about loss at the sentencing hearing. The district court also
rejected Minasyan’s claim for new counsel, explaining that
Minasyan’s current attorney was in the best position to
prepare arguments about the loss amount before sentencing.
The district court called the proceedings on Minasyan’s
motions “an exercise of gamesmanship that has wasted the
Court’s time.”
C. Sentencing Hearing
At the sentencing hearing on June 10, 2019, Minasyan’s
counsel argued that the evidence was insufficient to support
the government’s proposed loss of $4.2 million as to
Minasyan under the clear and convincing evidence standard.
Minasyan’s counsel also argued that the Medicare contractor
who was tasked with analyzing Fifth Avenue claims was not
neutral and that there was insufficient evidence to go from
the contractor’s relatively small sample to saying that
everything at Fifth Avenue was fraudulent. The district
court summarized Minasyan’s argument as contending that
Minasyan and Avetisyan had decided at some point to
operate Fifth Avenue as a legitimate business, which is why
only some of the claims submitted to Medicare were
fraudulent.
The district court, however, rejected this argument based
in part on evidence from Glazer’s trial. The district court
focused on the presence of a “light box,” which can be used
for tracing signatures, found through a search warrant near
Avetisyan’s desk at Fifth Avenue. Referring to this evidence
UNITED STATES V. MINASYAN 11
from Glazer’s trial, the district court explained that “finding
a box like that in a doctor’s office is not out of place” because
it could be used to read X-rays, but in this case the light box
was instead found “at or near . . . Ms. Avetisyan’s desk
area.” Because the evidence of fraud was still present when
the search warrant was executed, the district court concluded
that the “box was used to trace patient[s’] signatures all over
the place and on everything.” The district court also noted
the presence of blank pre-signed forms at Fifth Avenue,
determining that the scheme “was an ongoing problem—an
ongoing fraud.”
During its presentation, the government highlighted the
Medicare contractor’s audit, but the district court expressed
concerns about the audit’s validity, given that the auditor
was paid based on the amount of money it saved Medicare.
The government also pointed to Minasyan’s plea agreement,
in which he agreed that he paid kickbacks to patient
recruiters and acknowledged that he knew Medicare does not
pay for claims procured by kickbacks. Minasyan responded
by stressing that, while there was no dispute about the factual
basis of the plea—that Minasyan paid kickbacks to patient
recruiters who brought patients to Glazer to get unnecessary
prescriptions for home health care—the amount of loss “has
always been in dispute.”
The district court recognized that Minasyan wanted to be
held accountable only for the loss for which he was
responsible, but it noted that pleading to a conspiracy means
that “what you are responsible for is going to be broadened
somewhat.” The district court stated:
[I]t would seem to me that pleading guilty is
just exactly the wrong thing to do, that what
you need to be able to do is put on a case or
at least be able to cross-examine the
12 UNITED STATES V. MINASYAN
government’s case and contest this loss
amount. But to plead guilty, you are pretty
much admitting these allegations. [The
sentencing hearing] is a strange time to try to
then contest it after you have admitted to all
of this wrongdoing.
The district court calculated Minasyan’s advisory
guidelines range as 63 to 78 months, based on an offense
level of 25. The district court then determined that Minasyan
should be sentenced at the high end of the range, despite the
government’s low-end recommendation. The district court
ordered Minasyan to pay roughly $4.2 million in restitution.
The district court adopted the PSR’s analysis in full, at times
reading from the PSR, and emphasized that “according to the
government there is no known evidence that Fifth Avenue
was legitimately providing home health care services,” and
further, there were no known mitigating factors.
After sentencing, at the request of defense counsel, the
district court at first set an evidentiary hearing for August 16,
2019. But on August 5, 2019, the district court denied an
evidentiary hearing on the ground that Minasyan’s plea was
not conditioned on such a hearing.
Minasyan timely appealed.
II
The crux of this case concerns whether the appeal waiver
was valid and enforceable. If so, then there is no need to
address any other claims encompassed by the appeal waiver.
Because we conclude that Minasyan’s appeal waiver was
UNITED STATES V. MINASYAN 13
knowingly and voluntarily made and that it encompasses
Minasyan’s remaining claims, 3 we affirm the district court.
An appeal waiver in a plea agreement “is enforceable if
the language of the waiver encompasses [the defendant’s]
right to appeal on the grounds raised, and if the waiver was
knowingly and voluntarily made.” United States v. Watson,
582 F.3d 974, 986 (9th Cir. 2009) (citation omitted).
Minasyan contends that the appellate waiver is
unenforceable for three reasons. First, Minasyan asserts that
the plea was not knowing, intelligent, and voluntary because
the district court impermissibly curtailed his right to present
evidence on the loss amount. Second, he maintains that his
plea was involuntary because he was misinformed about the
elements constituting the crime for which he was charged.
Third, he claims that the government implicitly breached the
plea agreement, rendering the waiver unenforceable. None
of Minasyan’s claims have merit.
3
Minasyan waived “any right to appeal [his] conviction,” except for
a claim that his plea was involuntary. This waiver encompasses
Minasyan’s claims that the district court erred in refusing to allow him
to withdraw his plea or to substitute counsel. See United States v.
Odachyan, 749 F.3d 798, 804 (9th Cir. 2014) (dismissing challenges to
sentence that were not specified as exceptions to an appeal waiver).
Minasyan also waived the right to appeal “the procedures and
calculations used to determine and impose any portion of the sentence”
and “the term of imprisonment imposed by the Court.” This portion of
the waiver encompasses his claims related to sentencing, including his
claims that his sentence is unlawful, his sentence is substantively
unreasonable, and his claims related to the district court’s loss
calculation. E.g., United States v. Kelly, 874 F.3d 1037, 1051 (9th Cir.
2017) (upholding appeal waiver that encompassed the sentencing issue
raised by defendant). Minasyan does not appear to dispute that the
waiver encompasses his remaining claims.
14 UNITED STATES V. MINASYAN
Because Minasyan did not make these arguments before
the district court, we review them for plain error. United
States v. Minore, 292 F.3d 1109, 1117 (9th Cir. 2002).
“Relief for plain error is available if there has been (1) error;
(2) that was plain; (3) that affected substantial rights; and
(4) that seriously affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v.
Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008).
A
Minasyan contends that his plea was involuntary because
the district court did not give him a full and fair opportunity
to contest the loss amount at his sentencing hearing.
Minasyan appears to contend both that his inability to
contest the loss amount violated due process, rendering the
sentence illegal, and that his plea was involuntary because
the district court’s sentencing procedure was inconsistent
with Rule 32 of the Federal Rules of Criminal Procedure and
the Sentencing Guidelines. 4
Neither contention is persuasive because Minasyan had
an adequate opportunity to contest the loss amount at the
sentencing hearing. It is true that the “sentencing process
. . . must satisfy the requirements of the Due Process
Clause.” Gardner v. Florida, 430 U.S. 349, 358 (1977). But
4
The government urges that Minasyan’s argument about a full and
fair opportunity to contest the loss amount is an effort to “avoid his
appeal waiver to raise his true complaint that the district court erred in
denying him an evidentiary hearing at sentencing.” Because this is so,
the government argues that this claim is either precluded by the appeal
waiver or should be reviewed for abuse of discretion. While this
assessment is plausible, we conclude that Minasyan made arguments in
the briefs that were specific enough to preserve a claim based on the
voluntariness of his plea.
UNITED STATES V. MINASYAN 15
the record reflects that Minasyan was able to present
evidence before and at the sentencing hearing to combat the
government’s proposed loss amount. It also shows that the
hearing itself conformed to the federal rules and guidelines.
Notwithstanding these opportunities, Minasyan contends
that the cumulative result of the district court’s refusal to
withdraw his guilty plea, denial of his motions for substitute
counsel and continuances, and statements at sentencing
demonstrate that the district court did not take seriously
Minasyan’s challenge to the evidence on intended loss. We
disagree.
First, we conclude that the district court permissibly
denied Minasyan’s motions, and therefore the denials do not
support his voluntariness claim. A defendant may withdraw
his guilty plea before sentencing only if he “can show a fair
and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(B). Although this standard is liberal, it
must be consistent with “Rule 11’s purpose of ensuring some
finality at the time pleas are accepted.” United States v.
Ensminger, 567 F.3d 587, 593 (9th Cir. 2009) (citation
omitted). We have held that “[o]nce the plea is accepted,
permitting withdrawal is, as it ought to be, the exception, not
an automatic right.” Id. Importantly, the burden is on the
defendant to show a permissible reason to withdraw the
guilty plea, which includes reasons like “inadequate Rule 11
plea colloquies, newly discovered evidence, intervening
circumstances, or any other reason for withdrawing the plea
that did not exist when the defendant entered his plea.” Id.
at 590–91 (citations omitted). Here, Minasyan understood
at the time of his plea that he and the government disagreed
on the amount of loss. Before his plea, he also
acknowledged that the district court retained discretion to
sentence him up to the statutory maximum.
16 UNITED STATES V. MINASYAN
Minasyan did not carry his burden to show that a “fair
and just reason” existed for withdrawing his plea. See
United States v. Briggs, 623 F.3d 724, 728, 729 (9th Cir.
2010) (upholding denial of motion to withdraw plea where
the defendant “only wanted to change his plea once he was
face-to-face with the full consequences of his conduct”).
Regarding the motion for new counsel, the district court
adequately considered both the alleged communication
difficulties between Minasyan and his attorney and whether
continuances to the sentencing hearing were justified. See
United States v. Mendez-Sanchez, 563 F.3d 935, 942–43 (9th
Cir. 2009) (concluding that the district court did not abuse
its discretion where the inquiry into the alleged conflict was
adequate).
Second, while the district court’s comments at
sentencing—namely, that Minasyan should not have pleaded
guilty if he wanted to contest the amount of loss—may have
been casual or imprudent, the statements did not render his
guilty plea involuntary.
Minasyan was well aware when he pleaded guilty that he
and the government sharply disagreed on the loss calculation
and that he had not been promised a full evidentiary hearing
on the loss. Under the plea agreement, which Minasyan said
he understood, he was entitled to file objections to the PSR
and to comment on loss at the sentencing hearing.
Consistent with these rights, Minasyan did file a sentencing
memorandum before the hearing contesting the
government’s proposed loss calculation. Minasyan also had
an opportunity at the hearing to raise any legal or factual
matters that would bear on his sentence. His counsel argued
the company that analyzed billing samples from Fifth
Avenue was not neutral, and that it was a “leap of faith” to
extrapolate from the sample reviewed that all claims
UNITED STATES V. MINASYAN 17
submitted by Fifth Avenue were fraudulent. Minasyan’s
counsel incorporated by reference the arguments contained
in the sentencing memorandum and acknowledged that the
district court had also heard evidence of the fraud scheme
that was presented at Glazer’s trial.
We conclude that Minasyan had a full and fair
opportunity to be heard. Contrary to Minasyan’s contention,
the sentencing hearing also conformed to Federal Rule of
Criminal Procedure 32. Rule 32(i)(1)(C) provides that the
district court “must allow the parties’ attorneys to comment
on the probation officer’s determinations and other matters
relating to an appropriate sentence.” Fed. R. Crim. P.
32(i)(1)(C). But Rule 32(i)(2) also states that the district
court “may permit the parties to introduce evidence” on
objections to the PSR. Id. at 32(i)(2) (emphasis added).
While the district court was required to allow Minasyan to
challenge the probation office’s findings on intended loss,
the district court had discretion to determine whether
presenting evidence to support the challenge would be
helpful or necessary. See United States v. Salcido, 506 F.3d
729, 735 (9th Cir. 2007) (per curiam) (finding no error under
Rule 32 where the defendant “was permitted to file written
objections to the presentence report and was given the
opportunity to make additional arguments at the sentencing
hearing”).
The district court gave Minasyan a fair opportunity to
contest the government’s loss calculation even if it was not
the full evidentiary hearing that Minasyan wanted—but to
which he was not entitled. We conclude that Minasyan’s
plea was not involuntary due to the district court’s
sentencing procedure and comments, nor did Minasyan’s
sentence, in the context of Minasyan’s opportunities to be
heard, violate his due process rights.
18 UNITED STATES V. MINASYAN
B
Minasyan next contends that his plea was involuntary
because—in light of our recent decision in United States v.
Miller, 953 F.3d 1095 (9th Cir. 2020)—the plea agreement
improperly stated the elements of the offense. Specifically,
the agreement stated that the requisite intent for Minasyan’s
offense was “to deceive or cheat,” instead of “to deceive and
cheat.” In Miller, we held that the wire fraud statute requires
“not mere deception, but a scheme or artifice to defraud or
obtain money or property, i.e., in every day parlance, to
cheat someone out of something valuable.” Id. at 1101. The
government contends that any error could not have been
plain because Miller concerned wire fraud under § 1343,
rather than health care fraud under § 1349. United States v.
Gnirke, 775 F.3d 1155, 1164 (9th Cir. 2015) (stating that
plain error generally requires “controlling authority on
point” (citation omitted)).
Even assuming that Miller is controlling authority that
would render any error here plain, Minasyan is unable to
show his substantial rights were affected. See United States
v. Roblero-Solis, 588 F.3d 692, 701 (9th Cir. 2009) (a
showing that substantial rights have been affected requires
“a reasonable probability that, but for the error, he would not
have entered the plea” (citation omitted)). Minasyan does
not provide evidence that he would not have pleaded guilty
if he had known the requisite intent was conjunctive, rather
than disjunctive. Indeed, his argument before and after the
guilty plea was that Fifth Avenue is not entirely fraudulent,
consistent with someone who deceived and cheated, albeit
to a lesser extent. He can make no argument that his scheme
was “mere deception” because it was a scheme “to cheat
someone”—in this case, Medicare—“out of” money, which
is unquestionably “something valuable.” See Miller,
UNITED STATES V. MINASYAN 19
953 F.3d at 1101. Accordingly, the improperly stated
elements in the plea agreement did not render Minasyan’s
plea involuntary.
C
Finally, Minasyan contends that the appellate waiver is
unenforceable because the government breached the plea
agreement. Even though the government adhered to the
explicit terms of the plea agreement by recommending a
low-end sentence, Minasyan contends nonetheless that the
prosecutor implicitly breached the plea agreement by
“attempt[ing] . . . to influence the court to give a higher
sentence than the prosecutor’s recommendation.” United
States v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999); see
also United States v. Heredia, 768 F.3d 1220, 1231 (9th Cir.
2014) (stating that the government “may not superficially
abide by its promise to recommend a particular sentence
while also making statements that serve no practical purpose
but to advocate for a harsher one”).
To support this claim of implicit breach, Minasyan
asserts that the government included in its sentencing
memorandum “negative information already set forth in the
PSR,” details related to the dismissed money laundering
offense, and “prejudicial details regarding offenses with
which Minasyan was not involved.” He also contends that
the government made self-serving and contradictory use of
the “light box” evidence at the sentencing hearing. 5 At the
hearing, the government agreed with the district court that
the light box was a “hallmark of fraud,” even though the
5
To the extent Minasyan also argues the district court violated due
process by relying upon materially untrue information relating to the
“light box,” we disagree.
20 UNITED STATES V. MINASYAN
government had presented a witness in Glazer’s trial, ten
days prior, who testified that the light box displayed no signs
of tracing.
We conclude that the government did not implicitly
breach the plea agreement. To begin with, the government
did not waive its right to argue for a higher loss calculation
than Minasyan. The government’s discussion of the overall
conspiracy and Minasyan’s role in it could properly assist
the district court in its loss calculation. Details about the
dismissed money laundering offense were also validly
included in its sentencing position because the plea
agreement had expressly stipulated that the district court
could rely on evidence concerning dismissed charges “in
determining the applicable Sentencing Guidelines range.”
Here, information about the structured withdrawals that were
relevant to the dismissed charge were also relevant to
support the conclusion that Minasyan was not running a
legitimate home health care service.
The government’s endorsement of the district court’s
statement that the light box was a “hallmark of fraud” did
not implicitly breach the agreement. Based on the evidence
presented at Glazer’s trial about the light box found at Fifth
Avenue, the district court expressed skepticism about the
defense position that aspects of Fifth Avenue’s care were
legitimate. The district court acknowledged that finding a
light box in a doctor’s office may not be indicative of fraud
on its own, because a light box can be used to read X-rays.
But in this case the box was found near Avetisyan’s desk,
and it was still there when the search warrant was executed.
Coupled with the many blank prescription pads that were
already signed at the same location, the district court
concluded that Minasyan was participating in “an ongoing
fraud.”
UNITED STATES V. MINASYAN 21
When the government was then given a chance to
comment, it agreed with the district court’s observation that
the light box and the blank signed prescription pads were
“hallmarks of fraud.” The government had reserved the right
to contest the loss amount at the sentencing hearing, so it was
permissible for the government to support the district court’s
conclusion that Minasyan and Avetisyan had not decided at
some point to begin operating a legitimate business. Cf.
United States v. Whitney, 673 F.3d 965, 971 (9th Cir. 2012)
(holding that the government breached the plea agreement
where the prosecutor “introduce[d] information that serve[d]
no purpose but to influence the court to give a higher
sentence” (internal quotation marks and citation omitted)).
Despite this alternative purpose, Minasyan contends that
the government’s statements still breached the plea
agreement because they were impermissibly inconsistent
with its position at trial—that Glazer knew about the fraud
and his signatures had not been traced without his
knowledge using the light box. We disagree. First, the
government’s statement was not necessarily inconsistent
with its position at trial. At Minasyan’s sentencing hearing,
the government acknowledged only that a light box is a
hallmark of fraud; it did not state that the light box in this
case was used to trace Glazer’s or anyone else’s signature.
But even if the government’s light box statement was
inconsistent with its theory of the light box at Glazer’s trial,
any error would not be plain. To be plain, the error must be
“clear or obvious, rather than subject to reasonable dispute.”
Puckett v. United States, 556 U.S. 129, 135 (2009).
Furthermore, Minasyan could not show that reliance on the
light box evidence affected his substantial rights. Cannel,
517 F.3d at 1176. The government’s discussion of the light
box was brief and was not a focal point of its presentation to
22 UNITED STATES V. MINASYAN
the district court. The government also coupled its statement
about “hallmarks of fraud” with an emphasis on the signed
blank prescription pads, which are undeniably hallmarks of
fraud in this context.
Because we hold that the government did not breach the
plea agreement—explicitly or implicitly—Minasyan’s
argument that a breach occurred cannot render his appeal
waiver unenforceable.
III
We hold that Minasyan’s plea was voluntary and his
appeal waiver is fully enforceable. See United States v. Lo,
839 F.3d 777, 784 (9th Cir. 2016). Under the agreement,
Minasyan waived the right to appeal his conviction except
on the ground that his plea was involuntary. Minasyan also
waived the right to appeal most aspects of his sentence if the
district court determined that the offense level was no greater
than 25, which the district court did. The plea bargain
reached by the government and Minasyan was a finely tuned
agreement between a criminal defendant and the prosecuting
government party. Each gave up some rights and gained
some benefits in the compromise that avoided the trial and
appeal time for the parties and eliminated what would have
been unavoidable uncertainties for the government. But at
the same time, the compromise plea bargain limited charges
and risks to Minasyan of incurring a larger penalty if he went
to trial and lost. 6
6
The Supreme Court has described some of the benefits of fair plea
bargaining in this way:
The disposition of criminal charges by agreement
between the prosecutor and the accused, sometimes
UNITED STATES V. MINASYAN 23
Because a valid appeal waiver governs the remainder of
Minasyan’s claims on appeal, and he has not raised any
exception that would permit us to consider them, we do not
address those claims. See Lo, 839 F.3d at 795.
AFFIRMED.
loosely called ‘plea bargaining,’ is an essential
component of the administration of justice. Properly
administered, it is to be encouraged. If every criminal
charge were subjected to a full-scale trial, the States
and the Federal Government would need to multiply
by many times the number of judges and court
facilities.
Disposition of charges after plea discussions is
not only an essential part of the process but a highly
desirable part for many reasons. It leads to prompt and
largely final disposition of most criminal cases; it
avoids much of the corrosive impact of enforced
idleness during pre-trial confinement for those who are
denied release pending trial; it protects the public from
those accused persons who are prone to continue
criminal conduct even while on pretrial release; and,
by shortening the time between charge and
disposition, it enhances whatever may be the
rehabilitative prospects of the guilty when they are
ultimately imprisoned.
Santobello v. New York, 404 U.S. 257, 260–61 (1971); see also
Blackledge v. Allison, 431 U.S. 63, 71 (1977) (“Properly administered,
[plea bargains] can benefit all concerned.”).