F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

P E T R O S O D A C H Y

A N , Defendant-Appellant

. No. 11-50253

D.C. No. 2:08-cr-00414-ODW -2

OPI NI ON

A ppeal from the United States District Court for the Central District of California Otis D. W rig ht, I I , District J udg e, Presiding

Arg ued and Submitted J anuary 7, 2014—Pasadena, California

F iled April 17, 2014

B efore: Stephen Reinhardt and Richard R. Clifton, Circuit J udg es, and J ennifer A. Dorsey , District J u d g e

. *

Opinion by J udg e Clifton; Concurrence by J udg e Reinhardt

* T h e H o n orab le J en n i fe r A

. Do rsey , District J u d g e f o r th e District of Nev ad a, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. O D A C H Y A N 2

SUMMARY * *

Crim inal Law

The panel affirmed in part a sentence f o r c onspiracy to commit health care fraud and d ismissed the remainder of the appeal based on the defendant’s waiver of the rig ht to appeal.

The panel held that a s t atement by the district c ourt at sentencing d id not reflect such a hig h deg ree of favoritism o r antag onism as to make fair judg ment imp ossible a nd therefore does not e vidence constitutional error, wh e r e i t appears that the district court’s statement was in response to
arg uments made by the d efendant, was offered to ex plain why the district court was n ot persuaded by th e m , and at most reflects a “g eneral frustration” with the ty pe of arg ument the defendant made at sentencing

.

T h e p a n e l d i smissed the defendant’s remaining cha l l e n g e s

as barred by his knowing and voluntary waiver of the rig ht to appeal. The panel wrote that the fact that the plea ag reement permitted a n a ppeal o n certain specified g r ounds a nd acknowledg ed the possibility of reversal or vacatur on appeal does not support the p roposition that the d e f e n d ant is permitted to appeal on other g rounds.

Concurring
, J udg e Rein h a r d t w r o t e t h a t the district court’s statement, althoug h not rising to the level of a constitutional violation, has no place at a sentencing hearing
, both because it is contrary to the requirement that a j u dg e sentence on an

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. O D A C H Y A N 3

individual basis and because it lends the appearance o f stereoty pical thinking reg arding alienag e or membership in a particular racial, ethnic, or relig ious g r oup.

COUNSEL

D a vid E. Kenner (arg

ued), B rett A. Greenfield, Kenner & Greenfield, APC
, Encino, California, for D efendantAppellant.

Melanie Sartoris, A s s i stant United States Attorney
, L os Ang eles, California, for Plaintiff-Appellee.

OP INION

CL I F TON, Circuit J udg e :

Defendant Pet r o s Odachy an pled g uilty
, under a plea

a gr eement, to conspiracy to commit h ealth care f r aud. H e

was sentenced to imprisonment for 51 m o n ths. He is an i m m i g r a n t from Armenia and a r g ues that a statement by the district judg e at sentencing evidenced an anti-immig rant bias in violation of his constitutional r ig hts, r esulting in an illeg al
sentence. He also pre s e n ts o ther challeng es to his sentence and a rg ues that the waiver of his rig ht to appeal to which he assented in the plea ag r eement was not intended to preclude the arg uments he presents. W e hold that the district c o urt’s
statement at sentencing does not e vidence constitutional error and that Odachy an validly waived the r i g ht to appeal the remaining issue s he seeks to arg ue. W e affirm the sentenceU N I T E D S T A T E S V

. O D A C H Y A N 4

as to the constit u t i onal c halleng e and dismiss the remainder of the appeal.

I. Background

B e tween D ecember 2005 and April 2007, O dachy an a nd
two other Armenian immig rants developed and ex ecuted a scheme to defraud the federal Medicare prog ram. Odachy an

was subsequently indicted on ten counts charg ing conspiracy
to commit health care fraud, health care fraud, causing an act to be done, and criminal forfeiture

. Ba s e d on a plea
ag reement, Odachy

an pled g uilty

to one count of conspiracy
to commit health care f

raud in violation of 18 U.S.C. § 1347. The remaining

counts were dismissed.

The plea ag r eement d iscussed sentencing
, including an ag reement between the g overnment a n d the defendant as to t h e base offense level under the advisory Sentencing Guidelines. The parties reserved the r ig ht to a rg u e for adjustments and departures under the g uidelines and noted that there was no ag reement as to criminal hi s t ory

. The
ag reement also noted that the court w as not boun d b y the stipulations in the ag reement.

As part of the plea ag reement, O dachy an waived his rig ht
to a p peal, provided that (a) the sentence was within the statutory max imum and was not unconstitutional, and (b) the
sentence imposed by the c ourt was “within or below the r ang e corresponding to a total offense level of 21, and the applicabl e c ri minal history categ ory ,” as determined by the district c ourt. The g overnment waived the rig ht to appeal the
sentence on similar terms, as long a s it wa s within or above
t he rang e based on an offense level o f 17. Odachy a n a l s oU N I T E D S T A T E S V

. O D A C H Y A N 5

retained the rig ht to a

p p eal o ther elem e n t s o f the restitution order or terms of supervised release.

I n sentencing Odachy an, the district court received a nd considered position p apers from the parties, a presentencing report and recommendation from the probation office, and the plea ag reement itself. During the sentencing hearing
, the
court made a statement that is the basis f or Odachy an’s current claim of constitutional error:

J ust so every

one k nows, I am c onsidering the hig h end of [ the g uideline] rang e.

. . . And let

me just briefly ex plain why
, aside from the obvious reasons, asi d e f

r om the fact that we are talking

about an awful lot of money to an org aniz ation w hose sole purpose is to provide for the medic a l n e e ds of the most vulnerable in our s o c i e t y a

nd aside from the fact that I g row — I am in co n s t a n t wonder a nd

amaz ement why it is so many p eople come to this country seeking a better life and then prey

on this g overnment’s institutions as their own personal pig g y

b anks a n d then direct the court to look at the terribl e c onditions from which they came as somehow an ex c use o r mitig ating factor.

The district court determined t hat the total offense level

was 1 9 a nd that Odachy a

n’s criminal history categ ory was I I

. Odachy an was sentenced to 51 months impr i sonment follow e d b y t h ree y ears o f supervised release. He w as also ordered to pay

more than $600,000 in restitution.U N I T E D S T A T E S V

. O D A C H Y A N 6

II. Constitutional error claim

Odachy an contends that the d i strict court’s antiimmig rant bias unfairly influenced the sentence. Odac h y an did not bring a motion to disq u alify the district judg e under 28 U.S.C. § 144, which provides that a judg e “shall proceed

no f u r ther” when presented with a “ timely and sufficient affidavit that the judg e b efore whom the matter is pending has

a personal bias or prejudice.” See United States v. Carignan
, 600 F .2d 762
, 7 63–64 (9th Cir. 1979). Nor does Odachy an arg ue for disqualification under 28 U.S.C. § 45 5 (a), which requires a judg e t o recuse himself “in any proceeding in which his im p a r t iality mig ht r easonably be questioned,” including “[ w ] h ere he has a personal bias or prejudice

c o n cerning a party .” See Liteky v

. United States
, 510 U

. S

. 540 ( 1994). Althoug h Odachy an does not id e ntify a precise leg al basis for h is arg ument, we a ccept the proposition that an anti-immig rant bias in sentencing could violate constitutional rig hts to due process and equal protection and treat the claim

as such. A s the Supreme Court observed in W ithrow v

. Larkin
, 421 U .S. 35, 47 (1975), “a biased decisionmaker [ is] constitutionally unacceptable.” S ee also Hurles v. Ryan
, 706 F .3d 1021, 1 036 (9th Cir. 2 0 13) (quoting In re Murchison
, 349 U.S. 133, 136 (1955)) (a “fair trial in a fair tribunal is a basic requirement of due process”).

The appeal waiver in the plea ag r eement by its terms does

n o t p r e c l u d e a n a r g u m e n t t h a t t h e s e n t e n c e i s unconstitutional, and we have jurisdiction to consider a claim of constitutiona l e r

ror in any event. United States v

. Bibler
, 495 F

. 3d 621, 624 (9th Cir. 2 007) ( an a p peal waiver w ill not apply if the sentence v iolates the Constitution). Recog niz ing this a uthority
, the g overnment does not contend thatU N I T E D S T A T E S V

. O D A C H Y A N 7

Odachy an h as waived his rig ht to arg ue a denial of d ue process.

I n support of his arg ument, Odachy an cites the Supreme Court’s decision in Berger v. United States
, 255 U.S. 22 (1921), in which the Co u r t held that a district court judg e’s
comments w ere suffi c i ent to support an affidavit of bias o r prejudice under the then-applicable statute (Section 2 1 of the J udicial Code). Defendants in that case were cha r g ed with violations of the Espionag e Act during W orld W ar I
, and

some of the defendants had been b or n in Germany

. The district judg e who presided over the trial was reported to have said in substance pri o r t o trial: “ One must h ave a very judicial mind, in d e e d
, not to be prejudiced ag ainst the German-Americans in this country

. Their hearts are r eeking with disloy alty .” Id

. at 28. The Court hel d t h a t the district judg e should have disqualified himse l f i n response to the defendants’ motion. Id . at 36.

The e pisode discussed in Berger was later c ited by the Court in Liteky v. United States
, 5 10 U. S. 540 ( 1994), the only other a

uthority c ited by Odachy an in c o nnection with this arg ument. I n Liteky the Court affirmed a conviction a nd concluded that the district c ourt d i d n o t err in deny ing a motion for disqualification, with the following observation:

[ J ] udicial remarks during the course of a trial that a re critical or disapprovin g of, or even hostile to, counsel, the parties, o r their cases, ordinarily do not supp o rt a bias or p artiality challeng e. They may do s o i f they r eveal an

o p inion that derives from an ex trajudicial
source; and they will do so if they reveal such

a hig h deg ree of f

avoritism o r a n t a go nism a sU N I T E D S T A T E S V

. O D A C H Y A N 8

to make f

air judg ment impossible. An

ex a mple of the latter (and perhap s of the former as w ell) is the statement that was alleg ed to have b e en made b y the District J udg e in Berger v. United S tates , 255 U.S. 22 (1921), a W orld War I espionag e case ag ainst German–Amer i c a n defendants

. . . Not establishing bias or partia l ity
, however, a re

ex p ressions of impatience, di ssatisfaction,
annoy ance, and even ang er, that are within the bounds of what imperfect men and women,

even after having been confirm ed as federal judg es, sometimes d isplay

. A judg e’s ordinary efforts at courtroom administr a tion—even a stern a nd s h ort-tempered judg e’s ordinary efforts at courtroom administration—remain immune.

Id . at 555–56 (emphases in orig inal).

W e are not p ersuaded that the statement by the district court in this case reflected such a “hig h deg ree of favoritism

or antag o nism as to make fair j udg ment impossible.” Id

. at 555. “[ O] nly in the m o s t e x t reme of c ases would disqualifica t ion on this basis be constitutionally required.” Aetna Life Ins. Co. v. L a v o i e , 475 U.S. 813, 821 (1986) (ex plaining that a “g eneral frustration with insu rance companies” does not establish a constitution a l l y d i s q u alify ing bias); see also Liteky
, 510 U.S. at 55 8 (Kennedy
, J
., concurring ) (“I think all would ag r ee that a hig h threshold is required to satisfy this standa rd .”). This is not an e x treme

case.U N I T E D S T A T E S V

. O D A C H Y A N 9

The district judg e did not sug g est that all immig rants a re criminals at heart reg ardless o f their culpable conduct, a s h ad the judg e in Berger

. The judg e in this ins t a n c e was responding to Odachy an’ s sentencing position. Odachy an’s

s u p p l e m e n t a l s e n t e n c i n g m e m o r a n d u m h i g h l i g h t e d Odachy an’s ex periences prior to c o ming to the United States, i n c l u ding his family history and his own childhood i n Armenia, h i s brother’s death, an earthquake, a nd food shortag es that led to his family ’ s em i gr a tion, as mitig ating factors in sentencing

. Attached to the memo were many letters from others describing these conditions.

I n that contex t, it appears that the district court’s
statement was in r e s ponse to arg uments made by Odachy an and w as offered to ex plain why the d i strict court was not persuaded by them. At most, the statement reflects a “ g eneral frustration” with the ty

pe of ar g u ment Odachy an made at sentencing

. See Lavoie
, 475 U.S. at 821. That is n ot enoug h “to overcome the p resumption o f honesty a nd integ rity that

we accord to the determinations of a judg e.” C r ater v

. Galaza
, 491 F .3d 1 1 1 9
, 1 132 (9th Cir. 2007) (internal quotation marks omitted).

III. Waiver of

Other Argum e nts

This court r eviews de novo whether or not a defendant waived his rig ht to appeal his s e n tence. United States v

. Bibler
, 495 F .3d 621, 623 (9th C i r

. 2007). “A defendant’s waiver of his appellate rig hts is enforceable if the lang uag e o f the waiver encompasses his rig ht to appeal on the g rounds raised, and if the waiver was knowing ly and vol u n t arily mad e

. ” U

n ited States v

. Joyce
, 357 F .3d 921, 9 22 (9th Cir. 2004).U N I T E D S T A T E S V

. O D A C H Y A N 10

Odachy an waived h i s remaining challeng es. 1 A s described above, the plea ag reement provided that Odachy an waived the rig ht t o appeal his sentence, with limited

ex c e p t i o ns, a s long as the sentence was within the statutory

max imum, was constitutional, and was “within or below the
rang e corresponding to a t o t a l o ffense level of 21, and the applicable criminal histor y c ateg ory as determined by the [ c] ourt.”

None of the ex ceptions c o n templated by the p lea
ag reement apply here. The cou r t imposed a sentence of 51 months’ imprisonment, which is within the ten-y ear statutory

max imum. 18 U.S.C. § § 1347(a), 1349. As noted above, the district c o urt determined O dachy an’s criminal history categ ory to be I I

. Th a t c a teg ory combined w ith a total offense level of 21 resulted in a g uideline sentence of 41 to 51 months, and the sentence imposed w a s within that rang e

. U.S.S.G. § 5A.

Od a c h y an does not arg ue that the ag reement was not knowing ly and v oluntarily made, and ther e is nothing that indicates that it w as not. The court conducted a proper Rule 11 colloquy wherein Odachy an indicated he b oth u nderstood and ag reed to the waiver. F ed. R. Crim. P. 11; United States

v

. W atson , 582 F .3d 974, 986–87 (9th Cir. 2009) (Rule 11 colloquy shows defendant waived his a p p ellate rig hts knowing ly

and voluntarily

).

1 Od ach y an

arg u es th at th e d istrict co u rt u sed th e w ro n g am o u n t as th e lo ss f ig u re, erred in n o t g ran tin g a d o w n w ard ad j u stm en t f

o r m in o r ro le, erred in g ran tin g an u

p w ard ad j u stm e n t fo r u se o f so p h isticated m ean s,

a n d im po sed a sen ten ce th at resu lted i n an u n w arran t ed d isp arity in

co m pariso n to th e sen ten ce im p o s ed o n an o th er p articip an t i n t h e

co n sp iracy

.U N I T E D S T A T E S V

. O D A C H Y A N 11

Odachy an instead contends that, because the plea
ag reement al lows him to appeal certain issues including restitution and criminal history
, 2 an d b ecause it provides for the possibility that h i s conviction mig ht b e v acated o r reversed on appeal, 3 it should be r ead to allow him to appeal

2 T h e p lea ag reem en t in clu ded th e f o llo w i n g e x c e p t io n to Od ach y an ’ s

w aiv er o f h is rig h t to ap p eal:

No tw ith s tan d in g th e f

oreg oin g , d ef

en d an t retain s an y ab i lity d ef

en d an t h as to ap p eal t h e am o u n t o r term s of

an y restitu

tio n ord er a n d th e Co u rt’ s d eterm in atio n of d ef en d an t’ s crim in al h isto r y categ o ry an d th e

co n ditio n s o f s u

p erv ised release im

p o sed b y th e Co u rt,

w ith th e ex cep tio n o f th e f ollo w in g : co n d itio n s set f

orth in Gen eral Ord ers 31 8
, 0 1 -0 5
, an d/o r 0 5

- 0 2 o f th is Co u rt; th e d ru g testin g co n d itio n s m an d ated b y 1 8 U.S.C. § § 3 5 63 (a)(5 ) an d 3 5 8 3(d ); an d th e alco h o l an d d ru g u se co n ditio n s au th orized b y 1 8 U.S.C. § 3 5 63 (b )(7 ).

3 T h e p lea ag reem en t p ro v id es:

Def en d an t ag rees t h a t if an y co u n t o f co n v ictio n is

v acated
, rev ersed
, o r set asid e, o r th e so p h istica t e d

m ean s en h an cem en t im

po sed b y th e C o u rt to w

h ich th e p arties stip u l ated in th is ag reem en t is v acated o r set asid e, th e USA O [U.S. A tto rn ey ’ s Of f i ce] m ay : (a) ask th e Co u rt to resen t e n ce d ef en d an t o n an y rem ain in g

co u n t o f co n v ictio n , w ith b oth th e USA O an d d ef en d an t b ein g released f

ro m an y s tip u latio n s reg ard in g

sen ten cin g co n tain ed i n th is ag reem en t, (b ) ask th e C o u r t to v o id th e en tire plea ag reem en t an d v acate d ef en d an t' s g u ilty plea o n an y rem ain in g co u n t of

co n v ictio n , w ith b oth t

h e U SA O an d d ef

en d a n t b ein g released f

ro m all o f th eir o b lig atio n s u n d er th is
ag reem en t, o r (c) l eav e d ef e n dan t’ s rem ain in gU N I T E D S T A T E S V

. O D A C H Y A N 12

his sentence on other g rounds as well. That arg u ment lacks merit. Plea ag reements are interpre ted using contract principles. W

atson , 5 8 2 F. 3 d at 986. The plea ag reement here contains an integ r ation clause stating there a r e no understanding s between th e p a r t ies that are not included in the ag reement. At a minimum, the integ ration clause creates

a r ebuttable presumption t hat if a rig ht to appeal is not

ex p licitly p rovided for, as an ex ception to the g eneral waiver, it d o e s n ot ex ist. See United S tates v. Ahn
, 231 F .3d 26, 36 (D.C. Cir. 2 000) (“Standing a l one, such a clause would be strong evidence that no implied promises ex isted–after all, integ ration clauses establish that the written plea barg ain was adopted b y the parties as a complete and ex clusive statement of the terms of the ag reement.” ( q u o t i n g United States v

. Fentress
, 792 F

. 2d 461, 464 ( 4th Cir.1986), and collecting ad d i tional authorities) (internal quotation marks o mitted)). Odachy an’s arg

uments do not overcome this presumption.

That the plea ag reement permitted a n appeal on c ertain specified grounds a

nd acknowledg ed the possibility o f reversal or vacatur on appeal does not support the proposition that the defendant is permitted t o a p p e a l on o ther g rounds. To the contrary , the f

act t h a t a w a i v er o f the rig ht to appeal

ex p licitly sets o ut certain ex ceptions supports the proposition that the r i gh t to appeal is limited to those ex c eptions. See,
e.g. , Murphy v. DirecTV, Inc.
, 724 F .3d 1218, 1234 (9th Cir. 2013) (apply

ing th e “ ex pressio unius est ex clusio alterius”

max im of statutory constructio n in the contex t of contract interpretation). The point of making an ex ception is to depart from the g eneral rule, whi c h in this case is his waiver of the

co n v ictio n , s en ten ce, an d p lea ag reem en t in tact. Def en d an t ag rees th at th e ch o ice am on g t h ese th ree

o p tio n s rests in

th e ex clu siv e d iscretio n

o f th e USA O.U N I T E D S T A T E S V

. O D A C H Y A N 13

rig ht to appeal. Oda c h y a n does not contend that his
arg uments on appeal f

a ll within the e x ceptions ex plicitly outlined, and thus they are barred by the g eneral waiver.

The lang uage of the waiver encompasses Odachy an’s rig ht to a ppeal on the other g rounds he has attempted to raise, and the w aiver was knowing ly and voluntarily made. W e therefore dismiss Odachy an’s remaining challeng es a s waived.

AF F IRMED in part, DISMISSED in part.

REI NHARDT, Circuit J udg e, concurring :

I ag r e e with t h e majority that the district judg e’s
statement just prior to imposing the sentence on the defendant does not reach the level o f a constitutional violation. That is the only issue reg arding the judg e’s conduct that Oda chy an raises on appeal. Specifically
, Odachy an does not ra i se the statutory q

uestion whether because of his statement the judg e should have b een disqualified under 28 U.S.C. § 144 o r 28 U.S.C. § 455. F or this reason, I d o not consider whether the judg e’s statement r equires his disqualification under those
sta t u t e s

. W hether it does or not, however, in my view the statement was clearly

improper.

Petros Odachy an, an Armenian immig rant, pled g uilty to conspiracy to commit health c are fraud. At s en t e ncing
, the district judg e prefaced his choice of an above-g uidelines sentence with the following statement:U N I T E D S T A T E S V

. O D A C H Y A N 14

I am in constant wonder and amaz ement why it is so many people come to this country seeking a better life a

nd t h e n prey on this
g overnment’s institutions as their own personal pig g y

b anks a n d then direct the court to look at the terribl e c onditions from which they came as somehow an ex c us e o r mitig ating factor.

The majority is correct that this statement was likely made in
response to Odachy an’s sentencing memorandum, which hig hlig hted, a s mitig ating factors in sentencing
, his childhood in Armenia, his brother’s death, an earthquake, f ood shortag es, and his eventual immig ration to the U nited States. The contex t d oes not, h o wever, make the statement any more acceptable. O n the contrary , t h e s t atement is wholly inappropriate and particularly when made in connection with the sentencing

of a defendant.

F irst, the statement demonstrates an appro ac h to sentencing adverse to the instruction o f 1 8 U.S.C. § 3553. That section provides that a sentenc ing judg e must make an individualiz ed d etermination reg arding the appropriate
sentence for each person to come before him. I t is the judg e’s duty to consider the “nature a nd ci r c u mstances” of the speci fic offense and the “history a nd characteristics” of the particular defendant. 1 8 U.S.C. § 3553(a)(1); see also United States v. B arker
, 771 F

. 2d 1362, 1365 ( 9th Cir. 1985) (“[ T] he concept of individualiz ed sentencing is firmly entrenched in

our present jurisprudence.”). The d istrict judg e’s statement in this case, far from b e ing a sig nal of an indivi d u a l i z ed determination, has no p urpose but to inform the def en d a n t t h at his sentencer considers him to be one of thoseU N I T E D S T A T E S V

. O D A C H Y A N 15

immig rants who come to this c ountry and prey o n i ts institutions and that the judg e w ill sentence him in that lig ht.

S econd, the judg e’s remarks a re particularly inappropr i a t e because they are directed a t i m mig rants as a class. The remarks unjustly demean the desire of immig rants to seek a better life, belitt le the hardship and persecution they may have ex perienced i n t heir native land, a nd sug g est that “so many ” of them are eng ag ed in ex p l o i t ing this country ’s institutio ns r ather than contributing to them as immig rants have throug hout history

. See Arizona v. U nited States
, 132 S. Ct. 2492, 2510 (2012) (“The history of the United States is in part made of the stories, talents, and lasting contributions o f those who crossed oceans and d eserts to come here.”). The distric t j u d ge , as an officer of the court, should avoid the
ap p earance of stereoty

ping
, and refrain from g iving voice at sentencing h earing s to his personal feeli n gs about members of minorit y g roups, including immig rants, and their connection with crime in g eneral or wi t h v a r i ous ty pes o f crimes in particular. Certainly a judg e s h o u ld not announce those beliefs in connection with the imp osition of an aboveg uidelines sentence.

I n sum, the district judg e’s statement, althoug h not rising
to the level o f a c o nstitutional violation, has no place at a sentencing h earing
, both because it is con t rary to the requirement that a judg e sentence on a n individual basis a

nd because it lends the appearance of stereoty pica l t hinking
reg arding ali e n a ge or membership in a particular racial, ethnic, or relig ious g r oup. J u dg es should forg o making such
statements at all times but especially when jud gi n g t he conduct o f individuals in the course of criminal proceeding s.