UNITED STATES v. AVETISYAN (2021)

United States Court of Appeals, Ninth Circuit.2021-06-10No. No. 19-50199

Summary · law.co

Holding. The appeal is dismissed because Avetisyan validly waived her right to appeal through her plea agreement, which applied to her sentence, and even if the waiver did not apply, the trial court did not abuse its discretion by denying a separate evidentiary hearing on the loss amount.

Angela Avetisyan pleaded guilty to conspiracy to commit health care fraud and signed a plea agreement containing a waiver of her right to appeal. On appeal, she claimed the waiver was involuntary due to ineffective assistance from her attorney and argued the trial court should have held a hearing to dispute the loss amount used in sentencing. The appellate court found that Avetisyan had knowingly and voluntarily entered her plea during a properly conducted hearing where she confirmed no additional agreements existed beyond those in the written plea deal.

The court determined that Avetisyan's appellate waiver was valid because her sentence fell within the parameters she had agreed to waive appellate review over. Even assuming she had preserved her right to appeal, the court found no abuse of discretion in refusing an evidentiary hearing on loss calculations, since Avetisyan had multiple opportunities to present her position on the disputed amount through written filings and oral argument at sentencing.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Validity of appellate waiver in plea agreement
Voluntariness of guilty plea and effectiveness of counsel
Right to evidentiary hearing on sentencing loss calculations

Procedural posture

Avetisyan timely appealed her conviction for conspiracy to commit health care fraud after entering a guilty plea with an appellate waiver.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Defendant Angela Avetisyan timely appeals her conviction for conspiracy to commit health care fraud under 18 U.S.C. § 1349. She asserts (1) that she entered her plea agreement, which waived her right to appeal, involuntarily, because she received ineffective assistance of counsel and (2) that the district court erred in denying her an evidentiary hearing on the loss amount. We dismiss.

We review whether a defendant has waived her right to appeal de novo. United States v. Bibler, 495 F.3d 621, 623 (9th Cir. 2007). Avetisyan has not shown ineffective assistance of counsel. To determine voluntariness, we look to the “circumstances surrounding the signing and entry of the plea agreement,” particularly the Rule 11 plea colloquy. United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996). Here, the district court fully complied with Rule 11 during the 45-minute change of plea hearing and ensured that Avetisyan knowingly and voluntarily entered a guilty plea. Avetisyan stated that there were no additional “promises, understandings, or agreements” outside of what was in the plea agreement, and her counsel verified the same.

Avetisyan agreed to the waiver of her right to appeal “the procedures and calculations used to determine and impose any portion of her sentence” provided that the court imposed a sentence “within or below the range corresponding to an offense level of 32 and the criminal history category calculated by the court.” The district court sentenced Avetisyan to 120 months, which was below that threshold. Accordingly, Avetisyans appellate waiver applies.

Even if Avetisyan had preserved her right to appeal, she has not shown that the trial court abused its discretion in declining to hold an evidentiary hearing at sentencing. We review the denial of a request for an evidentiary hearing for abuse of discretion. United States v. Laurienti, 731 F.3d 967, 971 (9th Cir. 2013). “There is no general right to an evidentiary hearing at sentencing,” but where the parties dispute facts relevant to sentencing, “the district court must provide the parties a ‘reasonable opportunity’ to present information to the court.” United States v. Real-Hernandez, 90 F.3d 356, 362 (9th Cir. 1996); Fed. R. Crim. P. 32. Avetisyan had several opportunities to dispute the loss amount through her sentencing memoranda and at oral argument at the sentencing hearing, so the district court was fully apprised of her position.

DISMISSED.