United States v. Artak Ovsepian ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 09 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-50338
Plaintiff-Appellee, D.C. No.
2:11-cr-01075-SJO-6
v.
ARTAK OVSEPIAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted December 6, 2016
Pasadena, California
Before: D.W. NELSON and OWENS, Circuit Judges, and KORMAN,** District
Judge.
Artak Ovsepian (“Ovsepian”) appeals his sentence and restitution order
following his conviction on charges relating to a health care fraud scheme. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
affirm in part and reverse in part, vacate the sentence, and remand for resentencing.
The restitution order is affirmed.
I. Aggravated Identity Theft and Double Counting
Ovsepian argues that his consecutive sentence for aggravated identity theft
under 18 U.S.C. § 1028A bars two enhancements as impermissible double
counting because they are based on the unlawful use of a means of identification.
See U.S.S.G. § 2B1.6 cmt. n.2.
First, we find that the district court did not engage in impermissible double
counting in applying a two-level enhancement for number of victims under
U.S.S.G. § 2B1.1(b)(2). The number-of-victims enhancement serves a purpose
distinct from punishing identity theft: punishing offenders based on the number of
victims. See United States v. Holt, 510 F.3d 1007, 1011–12 (9th Cir. 2007); see
also United States v. Smith, 751 F.3d 107, 121 (3d Cir. 2014) (“Quite plainly, the
victim enhancement under § 2B1.1(b)(2) is not an enhancement based on the use of
a ‘means of identification’; it is an enhancement based on the number of victims.”).
Second, the record does not show, however, why the district court applied a
sentence enhancement for unlawful use or possession of an authentication feature
under U.S.S.G. § 2B1.1(b)(11)(A)(ii). We therefore vacate the sentence and
remand for resentencing so the district court can explain why it applied this
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enhancement and address whether such application constituted impermissible
double counting.
There is one issue that does not relate to double counting that we address
here. Pursuant to § 1028A(c)(5), aggravated identity theft may be predicated on a
felony violation of “any provision contained in chapter 63 (relating to mail, bank,
and wire fraud).” Ovsepian argues that this parenthetical has the effect of limiting
predicate felonies under Chapter 63 to mail, bank, and wire fraud, and excludes
other fraud offenses prescribed in that chapter, including conspiracy to commit
health care fraud—the offense on which he was convicted. We have held, however,
that Congress did not intend such parentheticals “be accorded a limiting effect
rather than a descriptive one.” United States v. Harrell, 637 F.3d 1008, 1010 (9th
Cir. 2011). Instead, the parenthetical “merely provides a short-hand description of
what several of the cited sections primarily cover.” Id. at 1011 (citation omitted);
see also United States v. Abdur-Rahman, 708 F.3d 98, 101–02 (2d Cir. 2013).
II. Sophisticated Means Enhancement
The district court did not err in applying the sophisticated means
enhancement. We reject at the threshold the argument that the Sentencing
Guidelines provision for a sophisticated means enhancement is unconstitutionally
vague. Outside the First Amendment context, the void-for-vagueness doctrine
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requires a finding of vagueness as applied to the facts of the instant case. Cavitt v.
Cullen, 728 F.3d 1000, 1005 (9th Cir. 2013). The facts of the conspiracy in this
case showed that it was sophisticated, as it included use of fake and real doctors,
covert transportation, and other means of operation.
We reject Ovsepian’s argument that this enhancement was subsequently
amended in a way that would have made it inapplicable because the amendment
Ovsepian relies on is substantive rather than clarifying, and substantive
amendments do not apply retroactively unless they are “specifically referenced in
U.S.S.G.§ 1B1.10.” United States v. Diaz-Cardenas, 351 F.3d 404, 409 (9th Cir.
2003). Nevertheless, as the United States Attorney concedes, the district court
would have the discretion on remand to consider the amended enhancement in
fashioning an appropriate sentence. See United States v. Taylor, 648 F.3d 417, 425
n.3 (6th Cir. 2011) (collecting cases).
III. Acceptance of Responsibility Adjustment
We reject Ovsepian’s argument that the district court did not make sufficient
factual findings when it declined to apply an adjustment for acceptance of
responsibility. There was no factual dispute with the presentence investigation
report (“PSR”) requiring an explicit resolution by the district court. Cf. United
States v. Carter, 219 F.3d 863, 866–68 (9th Cir. 2000) (error where district court
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did not resolve objections to facts in the PSR necessary to find that defendant was
a manager or supervisor, as required for enhancement). Moreover, our review of
the record persuades us that the district court did not erroneously decline to apply
the adjustment for acceptance of responsibility.
IV. Apprendi Claim
The district court did not err under Apprendi v. New Jersey, 530 U.S. 466(2000), in ordering restitution without a jury calculation. We previously held in
United States v. Green that Apprendi does not affect restitution. 722 F.3d 1146,
1149–1151 (9th Cir. 2013). Recent Supreme Court authority does not, as Ovsepian
argues, undercut the rationales in Green.
First, Paroline v. United States, 134 S. Ct. 1710, 1726 (2014), does not hold
that restitution is solely punitive and so does not undermine Green’s rationale that
the nature of restitution may sometimes be punitive, or remedial, or both. Green,
722 F.3d at 1150; see also United States v. Alvarez, 835 F.3d 1180, 1185 (9th Cir.
2016). Second, Green relied on the fact that restitution does not implicate a
statutory maximum. Id. Thus, while restitution arguably serves to aggravate a
criminal sentence, see Alleyne v. United States, 133 S. Ct. 2151, 2162–63 (2013), it
does not implicate a statutory minimum like in Alleyne. On the whole, there is not
enough support to conclude that intervening authority has sufficiently undercut
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Green’s rationales to be “clearly irreconcilable” for this panel to overrule circuit
precedent. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); United
States v. Eyraud, 809 F.3d 462, 471 (9th Cir. 2015) (“[Green] forecloses counsel’s
. . . invocation of [Paroline] . . . . We held in Green that [Apprendi] does not apply
to restitution orders, and Paroline does not invalidate that holding.”).
V. Conclusion
We affirm the district court on all issues except for whether its application of
a sentence enhancement under U.S.S.G. § 2B1.1(b)(11)(A)(ii) constituted
impermissible double counting. On this issue, we vacate and remand. The
restitution order is affirmed.
AFFIRMED in part, REVERSED in part, VACATED, and REMANDED.
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