United States v. Petros Odachyan
2014 U.S. App. LEXIS 7215
| 9th Cir. | 2014Background
- Petros Odachyan, an Armenian immigrant, pled guilty to one count of conspiracy to commit health-care fraud; other counts were dismissed under a plea agreement.
- Plea agreement included an appellate waiver: defendant waived most rights to appeal his sentence except limited exceptions; parties stipulated to certain guideline calculations but reserved rights to argue adjustments.
- At sentencing the district court calculated total offense level 19, criminal history category II, and imposed 51 months imprisonment and >$600,000 restitution.
- Before imposing sentence the judge criticized immigrants who "prey on this government’s institutions," referencing arguments that defendants’ adverse pre‑U.S. conditions were mitigating.
- Odachyan argued on appeal that the judge’s remark evidenced anti‑immigrant bias constituting constitutional error; he also raised guideline and sentencing‑calculation claims the government contends were waived by the plea agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district judge’s anti‑immigrant remark at sentencing created constitutional (due process/equal protection) error | Judge’s statement showed bias against immigrants so severe it infected sentencing and violated constitutional rights | Statement was commentary on sentencing mitigation and did not show disqualifying bias; not a constitutional violation | Court: No constitutional error; remarks did not meet high threshold for disqualification or denial of fair tribunal |
| Whether appellate waiver bars Odachyan’s non‑constitutional sentencing claims | Waiver should not preclude the specific sentencing challenges raised (loss amount, role, sophisticated‑means, disparity) | Plea agreement’s waiver was clear, knowing, voluntary, and covered these issues except enumerated exceptions | Court: Waiver valid and encompasses those challenges; they are dismissed as waived |
| Whether plea waiver preserves constitutional challenge despite general waiver | Constitutional claims are not waived by an appeal waiver | Party seeks to preserve right to raise due process claim despite waiver | Court: Appeal waiver does not preclude review of constitutional sentencing claim; court exercised jurisdiction to review it |
| Whether judge’s comment required statutory recusal under 28 U.S.C. §§ 144/455 | (Not raised on appeal) | (Not argued) | Concurrence: Statement improper and inappropriate for sentencing though not rising to constitutional violation; statutory recusal not considered by majority |
Key Cases Cited
- Berger v. United States, 255 U.S. 22 (1921) (judge’s pretrial anti‑ethnic remarks supported motion to disqualify)
- Liteky v. United States, 510 U.S. 540 (1994) (judicial remarks ordinarily do not establish bias unless from extrajudicial source or showing extreme antagonism)
- Withrow v. Larkin, 421 U.S. 35 (1975) (biased decisionmaker violates due process)
- Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) (generalized frustration with a class does not meet constitutional disqualification standard)
- United States v. Bibler, 495 F.3d 621 (9th Cir. 2007) (appeal waivers do not foreclose claims that sentence is unconstitutional)
- United States v. Watson, 582 F.3d 974 (9th Cir. 2009) (proper Rule 11 colloquy supports finding waiver was knowing and voluntary)