United States v. Edgar Shakbazyan
2016 U.S. App. LEXIS 19353
| 5th Cir. | 2016Background
- Defendant Edgar Shakbazyan ran a sham Houston clinic that, over 39 days in 2009, collected Medicare beneficiary information and submitted ~9,300 claims for unnecessary or unperformed services, billing ~$2.1 million.
- A superseding indictment charged 21 counts: a long-running conspiracy (Count 1) alleged from April 2009 to February 2010 (including a February 19, 2010 wire), nineteen health-care-fraud counts (June–August 2009), and an anti-kickback conspiracy.
- The 2009 Sentencing Guidelines (effective Nov. 1, 2009) amended the commentary to U.S.S.G. § 2B1.1 to treat persons whose means of identification were unlawfully used as “victims,” potentially triggering a 6-level enhancement for 250+ victims.
- The PSR applied the 2009 Guidelines (per the one-book rule and because Count 1 extended into 2010), treating 429 beneficiaries as victims and recommending a 6-level enhancement, resulting in a Guidelines range of 97–121 months (vs. 51–63 months without the enhancement).
- Shakbazyan objected under the Ex Post Facto Clause (arguing the expanded 2009 victim definition could not be applied to pre-November 2009 conduct), and raised other arguments (waiver of victim-status challenge, indictment charging fewer victims, and a clerical error on the Statement of Reasons). The district court overruled objections and sentenced him to 97 months; the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Shakbazyan) | Government's Argument | Held |
|---|---|---|---|
| Whether applying the 2009 Guidelines victim definition to pre-amendment conduct violates the Ex Post Facto Clause | Use of the 2009 victim definition to enhance counts covering pre-November 1, 2009 conduct increases punishment retroactively | One-book rule and grouping rules allow the Guidelines in effect when the last grouped offense occurred to govern; Count 1 extended past Nov. 1, 2009, so defendant had notice | No Ex Post Facto violation; 2009 Guidelines properly applied to all grouped counts |
| Whether Medicare beneficiaries were not "victims" but co-conspirators or unimpaired | Beneficiaries were paid/transported and suffered no harm; thus they are not victims under the 2009 definition | Victim status was accepted at sentencing; defendant waived the factual challenge | Waived by counsel at sentencing; not considered on appeal |
| Whether the indictment limited victims to a smaller number (below enhancement threshold) | Indictment mentions only a few named victims and Medicare, not 429 individuals | Superseding indictment referenced 429 patients; sentencing facts need only be proved by preponderance | Enhancement based on 429 beneficiaries sustained by PSR findings and proper standard; argument rejected |
| Whether a clerical error on the Statement of Reasons (misstating sentence ≤24 months) requires relief | Form lacked required written reasons because it erroneously marked sentence in wrong range | Error is clerical and harmless; transcript shows full explanation of reasons | Harmless clerical error; no relief warranted |
Key Cases Cited
- United States v. Kimler, 167 F.3d 889 (5th Cir. 1999) (one-book and grouping rules permit applying post-amendment Guidelines when grouped offenses include post-amendment conduct)
- Peugh v. United States, 133 S. Ct. 2072 (2013) (applying Guidelines promulgated after offense can violate Ex Post Facto when defendant committed all acts before amendment)
- Weaver v. Graham, 450 U.S. 24 (1981) (Ex Post Facto Clause protects against lack of fair notice and increased punishment retroactively)
- United States v. Olis, 429 F.3d 540 (5th Cir. 2005) (conspiracy is continuing offense; post-amendment continuation permits sentencing under amended Guidelines)