United States v. Minasyan

• Decision Date: 09 July 2021
• Docket Number: No. 19-50185,19-50185
• Citation: 4 F.4th 770
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ashot MINASYAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

4 F.4th 770

UNITED STATES of America, Plaintiff-Appellee,

v.Ashot MINASYAN, Defendant-Appellant.

No. 19-50185

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2021 Pasadena, California

Filed July 9, 2021

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.

Before: Ronald M. Gould, John B. Owens, and Lawrence VanDyke, Circuit Judges.

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.

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 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 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 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. 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.

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...