United States v. Mihran Melkonyan ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 15 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10026
Plaintiff-Appellee, D.C. No.
2:14-CR-00083-GEB-EFB-1
v.
MIHRAN MELKONYAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Senior District Judge, Presiding
Submitted December 10, 2020**
San Francisco, California
Before: W. FLETCHER and IKUTA, Circuit Judges, and SCHREIER,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota, sitting by designation.
Mihran Melkonyan appeals his sentence after a jury found him guilty of 24
counts of wire fraud, in violation of 18 U.S.C. § 1343, and 2 counts of mail fraud,
in violation of 18 U.S.C. § 1341. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
The district court’s findings satisfy Fed. R. Crim. P. 32. At
sentencing, the court stated, “Defendant’s objections are not supported by
the trial record,” and “I adopt the findings in the presentence report to the
extent they’re not inconsistent with the findings that I have made during this
proceeding.” The court made clear that it was aware of defendant’s
objections, but disagreed with them, and expressly relied on the trial record
as well as the Presentence Report’s (PSR) resolution of disputed issues. See
United States v. Wijegoonaratna, 922 F.3d 983, 990 (9th Cir. 2019); United
States v. McClain, 30 F.3d 1172, 1174 (9th Cir. 1994) (per curiam). This
satisfies the court’s duty to state its resolution of disputed issues.
The district court correctly calculated a 22-level increase to Melkonyan’s
offense level for amount of loss. The $500 amount in Application Note 3(F)(i) to
U.S.S.G. § 2B1.1 establishes “a presumed loss, setting a floor beneath which
neither ‘actual’ nor ‘intended’ loss may fall.” United States v. Yellowe, 24 F.3d
1110, 1113 (9th Cir. 1994) (emphasis omitted); see also United States v. King, 861
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F.3d 692, 694 n.1 (7th Cir. 2017) (noting that in 2000, the Sentencing Commission
moved Application Note 4 to Application Note 3(F)(i) and changed the minimum
loss amount from $100 to $500 per device). Here, because the number of
unauthorized access devices is not in dispute,1 multiplying that number by $500 is
the correct application of the Sentencing Guidelines, and the defendant’s subjective
intent as to actual loss is immaterial. See Yellowe, 24 F.3d at 1113.
The court adequately explained Melkonyan’s sentence when it addressed the
parties’ objections to the PSR and heard separate arguments weighing the factors
under 18 U.S.C. § 3553. The court considered the facts in the trial record and those
presented in the PSR. The court specifically noted that the Guideline range of 210
to 262 months was “high,” but that it was supported by the court’s findings and
based on “illegal choices the defendant made.” Because the court demonstrated
that it made a reasoned decision, no procedural error occurred. United States v.
Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
Melkonyan essentially makes three arguments in support of his claim that
the sentence is substantively unreasonable: (1) the loss enhancement greatly
1
See United States v. Gainza, No. 19-10430, 2020 WL 7222136 (9th Cir.
Dec. 8, 2020) (referring with approval to the court’s use of the $500 minimum per
access device found in Application Note 3(F)(i) to determine amount of loss, even
when the number of access devices was disputed by the defendant).
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exceeds actual loss, (2) the sentence is disproportionately high under the § 3553(a)
factors, and (3) the court should have imposed the 168-month sentence
recommended in the PSR. The first two arguments are foreclosed by the court’s
proper calculation of the amount of loss and its explanation of the sentence. The
third argument ignores the fact that the 168-month recommendation in the PSR
pre-dated a 2-level enhancement and resulting guideline range adjustment at the
sentencing hearing.In light of the written objections and oral arguments made by
the parties, and the court’s subsequent findings of fact and explanation, the court
did not abuse its discretion in choosing a guideline-range sentence of 230 months.
Finally, the district court correctly applied the preponderance of the evidence
standard to establish facts at sentencing. When a “sentencing enhancement for
amount of loss [is] not based on uncharged or acquitted conduct,” the district court
does not err when it uses a preponderance of the evidence standard. United States
v. Garro, 517 F.3d 1163, 1169 (9th Cir. 2008); see also United States v. Valle, 940
F.3d 473, 480 n.8 (9th Cir. 2019). The superseding indictment charged Melkonyan
with participating in a scheme to defraud. His conviction established that he
knowingly participated in the scheme and that the actions taken as part of the
scheme were reasonably foreseeable to him. Because the conduct leading to the
loss enhancement was charged in the indictment and Melkonyan was convicted of
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those charges, the court did not err when it applied the preponderance of the
evidence standard.
AFFIRMED.
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