United States v. Hakop Gambaryan
654 F. App'x 888
| 9th Cir. | 2016Background
- Hakop Gambaryan was convicted of Medicare fraud for billing power wheelchairs that were not medically necessary in violation of 18 U.S.C. § 1347(a).
- At sentencing the district court calculated intended loss in excess of $2.5 million (triggering U.S.S.G. § 2B1.1(b)(1)(J)) and applied an additional two-level enhancement under U.S.S.G. § 2B1.1(b)(7), producing a Guidelines range of 63–78 months.
- The district court imposed an 84-month prison sentence after considering § 3553(a) factors; Gambaryan did not contest substantive reasonableness but challenged the Guidelines calculations.
- The Ninth Circuit held that where a Guidelines enhancement has a disproportionate effect on the sentence, the facts supporting that enhancement must be proved by clear and convincing evidence, not merely a preponderance.
- The panel found the record insufficiently precise to support the >$2.5 million loss finding by clear and convincing evidence (disputed items included which prescriptions were fraudulent and how many claims depended on compromised doctors).
- The court also found that applying the two-level § 2B1.1(b)(7) enhancement (added in 2011) raised an Ex Post Facto issue; the sentencing must be vacated and the case remanded for resentencing on an open record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate standard of proof for Guidelines loss enhancements based on uncharged/uncertain conduct | Gambaryan: severe enhancement requires clear and convincing evidence; record here fails that standard | DOJ/District: preponderance sufficed; trial record supports loss estimate over $2.5M | Court: clear and convincing standard applies; record does not meet it; remand for resentencing (open record) |
| Application of post‑offense Sentencing Guidelines amendment (§2B1.1(b)(7)) — Ex Post Facto | Gambaryan: two‑level increase was added after his offenses; applying it violates Ex Post Facto Clause | DOJ: the amendment can apply (and alternative Adebimpe holding may salvage a two‑level increase for abuse of trust) | Court: raising sentence based on that post‑offense amendment required vacatur; remand (noting Adebimpe may affect outcome) |
Key Cases Cited
- United States v. Staten, 466 F.3d 708 (9th Cir. 2006) (clear and convincing proof required when Guidelines enhancements have disproportionate impact)
- United States v. Treadwell, 593 F.3d 990 (9th Cir. 2010) (due process may require clear and convincing evidence for enhancements based on uncharged/acquitted conduct)
- United States v. Popov, 742 F.3d 911 (9th Cir. 2014) (discussion of intended loss calculation and Medicare billing/payments)
- United States v. Zolp, 479 F.3d 715 (9th Cir. 2007) (loss may be a reasonable estimate based on available information)
- Peugh v. United States, 133 S. Ct. 2072 (2013) (Ex Post Facto Clause bars retroactive application of Guidelines amendments that increase punishment)
- United States v. Adebimpe, 819 F.3d 1212 (9th Cir. 2016) (held a two‑level increase for abuse of trust could apply despite similar timing issues)