United States v. Artak Ovsepian, 674 F. App'x 712

Artak Ovsepian was convicted in a health-care fraud conspiracy and sentenced, including a consecutive sentence for aggravated identity theft under 18 U.S.C. § 1028A and various Sentencing Guidelines enhancements.
The district court applied a two-level § 2B1.1(b)(2) enhancement for number of victims and an § 2B1.1(b)(11)(A)(ii) enhancement for unlawful use/possession of an authentication feature.
Ovsepian challenged (1) potential impermissible double counting given the aggravated-identity-theft conviction, (2) the § 2B1.1 sophisticated-means enhancement, (3) denial of an acceptance-of-responsibility reduction, and (4) the restitution order under Apprendi.
The Ninth Circuit affirmed most rulings but found the record insufficient to explain the authentication-feature enhancement and vacated and remanded for resentencing on that limited issue.
The court upheld the number-of-victims enhancement, the sophisticated-means enhancement (rejecting vagueness and retroactivity arguments), the denial of acceptance-of-responsibility adjustment, and the restitution order against Apprendi challenge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double counting: number-of-victims enhancement under § 2B1.1(b)(2)	Ovsepian: enhancement duplicates punishment for identity-theft use of IDs	Government: enhancement targets victim count, distinct from identity-theft punishment	Affirmed — no impermissible double counting; enhancement has distinct purpose
Double counting: authentication-feature enhancement under § 2B1.1(b)(11)(A)(ii)	Ovsepian: enhancement may impermissibly double count identity-theft conduct	Government: enhancement properly applied	Vacated & remanded — district court must explain basis and address double-counting concern
Sophisticated-means enhancement	Ovsepian: guideline vague and amendment should apply to bar enhancement	Government: guideline valid; amendment not retroactive	Affirmed — guideline not unconstitutionally vague; acts here supported enhancement; amendment not retroactive though court may consider on remand
Acceptance-of-responsibility adjustment denial	Ovsepian: court failed to make sufficient factual findings to deny reduction	Government: no factual dispute in PSR required resolution; denial supported by record	Affirmed — no error; no necessary factual dispute left unresolved
Restitution and Apprendi	Ovsepian: restitution requires jury determination under Apprendi	Government: Apprendi does not apply to restitution (Green)	Affirmed — Apprendi does not bar restitution; intervening authority does not clearly overrule Green

United States v. Holt, 510 F.3d 1007 (9th Cir.) (distinguishing victim-count enhancement from identity-theft enhancements)
United States v. Smith, 751 F.3d 107 (3d Cir.) (victim enhancement punishes number of victims, not use of identification)
United States v. Harrell, 637 F.3d 1008 (9th Cir.) (parentheticals in statutes are descriptive, not limiting)
United States v. Abdur-Rahman, 708 F.3d 98 (2d Cir.) (same interpretation of statutory parenthetical)
Cavitt v. Cullen, 728 F.3d 1000 (9th Cir.) (void-for-vagueness requires showing of vagueness as applied)
United States v. Diaz-Cardenas, 351 F.3d 404 (9th Cir.) (substantive Guideline amendments are not retroactive absent specific reference)
United States v. Carter, 219 F.3d 863 (9th Cir.) (district court must resolve disputed PSR facts that affect enhancements)
United States v. Green, 722 F.3d 1146 (9th Cir.) (Apprendi does not apply to restitution orders)
Paroline v. United States, 134 S. Ct. 1710 (Sup. Ct.) (discusses nature of restitution but does not abrogate Green for panel)
Alleyne v. United States, 133 S. Ct. 2151 (Sup. Ct.) (distinguishes facts that increase mandatory minimums)
Miller v. Gammie, 335 F.3d 889 (9th Cir. en banc) (intervening authority must be clearly irreconcilable to overrule circuit precedent)
United States v. Eyraud, 809 F.3d 462 (9th Cir.) (reaffirming Green in light of Paroline)