FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PETROS ODACHYAN,

Defendant-Appellant.

No. 11-50253

D.C. No.

2:08-cr-00414-ODW-2

OPINION

Appeal from the United States District Court

for the Central District of California

Otis D. Wright, II, District Judge, Presiding

Argued and Submitted

January 7, 2014—Pasadena, California

Filed April 17, 2014

Before: Stephen Reinhardt and Richard R. Clifton, Circuit

Judges, and Jennifer A. Dorsey, District Judge.

*

Opinion by Judge Clifton;

Concurrence by Judge Reinhardt

* The Honorable Jennifer A. Dorsey, District Judge for the District of

Nevada, sitting by designation.
2 UNITED STATES V. ODACHYAN

SUMMARY**

Criminal Law

The panel affirmed in part a sentence for conspiracy to

commit health care fraud and dismissed the remainder of the

appeal based on the defendant’s waiver of the right to appeal.

The panel held that a statement by the district court at

sentencing did not reflect such a high degree of favoritism or

antagonism as to make fair judgment impossible and

therefore does not evidence constitutional error, where it

appears that the district court’s statement was in response to

arguments made by the defendant, was offered to explain why

the district court was not persuaded by them, and at most

reflects a “general frustration” with the type of argument the

defendant made at sentencing.

The panel dismissed the defendant’s remaining challenges

as barred by his knowing and voluntary waiver of the right to

appeal. The panel wrote that the fact that the plea agreement

permitted an appeal on certain specified grounds and

acknowledged the possibility of reversal or vacatur on appeal

does not support the proposition that the defendant is

permitted to appeal on other grounds.

Concurring, JudgeReinhardtwrote that the district court’s

statement, although 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 judge sentence on an

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. ODACHYAN 3

individual basis and because it lends the appearance of

stereotypical thinking regarding alienage or membership in a

particular racial, ethnic, or religious group.

COUNSEL

David E. Kenner (argued), Brett A. Greenfield, Kenner &

Greenfield, APC, Encino, California, for DefendantAppellant.

Melanie Sartoris, Assistant United States Attorney, Los

Angeles, California, for Plaintiff-Appellee.

OPINION

CLIFTON, Circuit Judge:

Defendant Petros Odachyan pled guilty, under a plea

agreement, to conspiracy to commit health care fraud. He

was sentenced to imprisonment for 51 months. He is an

immigrant from Armenia and argues that a statement by the

district judge at sentencing evidenced an anti-immigrant bias

in violation of his constitutional rights, resulting in an illegal

sentence. He also presents other challenges to his sentence

and argues that the waiver of his right to appeal to which he

assented in the plea agreement was not intended to preclude

the arguments he presents. We hold that the district court’s

statement at sentencing does not evidence constitutional error

and that Odachyan validly waived the right to appeal the

remaining issues he seeks to argue. We affirm the sentence
4 UNITED STATES V. ODACHYAN

as to the constitutional challenge and dismiss the remainder

of the appeal.

I. Background

Between December 2005 and April 2007, Odachyan and

two other Armenian immigrants developed and executed a

scheme to defraud the federal Medicare program. Odachyan

was subsequently indicted on ten counts charging conspiracy

to commit health care fraud, health care fraud, causing an act

to be done, and criminal forfeiture. Based on a plea

agreement, Odachyan pled guilty to one count of conspiracy

to commit health care fraud in violation of 18 U.S.C. § 1347. 

The remaining counts were dismissed.

The plea agreement discussed sentencing, including an

agreement between the government and the defendant as to

the base offense level under the advisory Sentencing

Guidelines. The parties reserved the right to argue for

adjustments and departures under the guidelines and noted

that there was no agreement as to criminal history. The

agreement also noted that the court was not bound by the

stipulations in the agreement.

As part of the plea agreement, Odachyan waived his right

to appeal, provided that (a) the sentence was within the

statutory maximum and was not unconstitutional, and (b) the

sentence imposed by the court was “within or below the range

corresponding to a total offense level of 21, and the

applicable criminal history category,” as determined by the

district court. The government waived the right to appeal the

sentence on similar terms, as long as it was within or above

the range based on an offense level of 17. Odachyan also
UNITED STATES V. ODACHYAN 5

retained the right to appeal other elements of the restitution

order or terms of supervised release.

In sentencing Odachyan, the district court received and

considered position papers from the parties, a presentencing

report and recommendation from the probation office, and the

plea agreement itself. During the sentencing hearing, the

court made a statement that is the basis for Odachyan’s

current claim of constitutional error:

Just so everyone knows, I am considering the

high end of [the guideline] range. . . . And let

me just briefly explain why, aside from the

obvious reasons, aside from the fact that we

are talking about an awful lot of money to an

organization whose sole purpose is to provide

for the medical needs of the most vulnerable

in our society and aside from the fact that I

grow — I am in constant wonder and

amazement why it is so many people come to

this country seeking a better life and then prey

on this government’s institutions as their own

personal piggybanks and then direct the court

to look at the terrible conditions from which

they came as somehow an excuse or

mitigating factor.

The district court determined that the total offense level

was 19 and that Odachyan’s criminal history category was II. 

Odachyan was sentenced to 51 months imprisonment

followed by three years of supervised release. He was also

ordered to pay more than $600,000 in restitution.
6 UNITED STATES V. ODACHYAN

II. Constitutional error claim

Odachyan contends that the district court’s antiimmigrant bias unfairly influenced the sentence. Odachyan

did not bring a motion to disqualify the district judge under

28 U.S.C. § 144, which provides that a judge “shall proceed

no further” when presented with a “timely and sufficient

affidavit that the judge before whom the matter is pending has

a personal bias or prejudice.” See United States v. Carignan,

600 F.2d 762, 763–64 (9th Cir. 1979). Nor does Odachyan

argue for disqualification under 28 U.S.C. § 455(a), which

requires a judge to recuse himself “in any proceeding in

which his impartiality might reasonably be questioned,”

including “[w]here he has a personal bias or prejudice

concerning a party.” See Liteky v. United States, 510 U.S.

540 (1994). Although Odachyan does not identify a precise

legal basis for his argument, we accept the proposition that an

anti-immigrant bias in sentencing could violate constitutional

rights to due process and equal protection and treat the claim

as such. As the Supreme Court observed in Withrow v.

Larkin, 421 U.S. 35, 47 (1975), “a biased decisionmaker [is]

constitutionally unacceptable.” See also Hurles v. Ryan,

706 F.3d 1021, 1036 (9th Cir. 2013) (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 agreement by its terms does

not preclude an argument that the sentence is

unconstitutional, and we have jurisdiction to consider a claim

of constitutional error in any event. United States v. Bibler,

495 F.3d 621, 624 (9th Cir. 2007) (an appeal waiver will not

apply if the sentence violates the Constitution). Recognizing

this authority, the government does not contend that
UNITED STATES V. ODACHYAN 7

Odachyan has waived his right to argue a denial of due

process.

In support of his argument, Odachyan cites the Supreme

Court’s decision in Berger v. United States, 255 U.S. 22

(1921), in which the Court held that a district court judge’s

comments were sufficient to support an affidavit of bias or

prejudice under the then-applicable statute (Section 21 of the

Judicial Code). Defendants in that case were charged with

violations of the Espionage Act during World War I, and

some of the defendants had been born in Germany. The

district judge who presided over the trial was reported to have

said in substance prior to trial: “One must have a very

judicial mind, indeed, not to be prejudiced against the

German-Americans in this country. Their hearts are reeking

with disloyalty.” Id. at 28. The Court held that the district

judge should have disqualified himself in response to the

defendants’ motion. Id. at 36.

The episode discussed in Berger was later cited by the

Court in Liteky v. United States, 510 U.S. 540 (1994), the

only other authority cited by Odachyan in connection with

this argument. In Liteky the Court affirmed a conviction and

concluded that the district court did not err in denying a

motion for disqualification, with the following observation:

[J]udicial remarks during the course of a trial

that are critical or disapproving of, or even

hostile to, counsel, the parties, or their cases,

ordinarily do not support a bias or partiality

challenge. They may do so if they reveal an

opinion that derives from an extrajudicial

source; and they will do so if they reveal such

a high degree of favoritism or antagonism as
8 UNITED STATES V. ODACHYAN

to make fair judgment impossible. An

example of the latter (and perhaps of the

former as well) is the statement that was

alleged to have been made by the District

Judge in Berger v. United States, 255 U.S. 22

(1921), a World War I espionage case against

German–American defendants . . . Not

establishing bias or partiality, however, are

expressions of impatience, dissatisfaction,

annoyance, and even anger, that are within the

bounds of what imperfect men and women,

even after having been confirmed as federal

judges, sometimes display. A judge’s ordinary

efforts at courtroom administration—even a

stern and short-tempered judge’s ordinary

efforts at courtroom administration—remain

immune.

Id. at 555–56 (emphases in original).

We are not persuaded that the statement by the district

court in this case reflected such a “high degree of favoritism

or antagonism as to make fair judgment impossible.” Id. at

555. “[O]nly in the most extreme of cases would

disqualification on this basis be constitutionally required.” 

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986)

(explaining that a “general frustration with insurance

companies” does not establish a constitutionallydisqualifying

bias); see also Liteky, 510 U.S. at 558 (Kennedy, J.,

concurring) (“I think all would agree that a high threshold is

required to satisfy this standard.”). This is not an extreme

case.
UNITED STATES V. ODACHYAN 9

The district judge did not suggest that all immigrants are

criminals at heart regardless of their culpable conduct, as had

the judge in Berger. The judge in this instance was

responding to Odachyan’s sentencing position. Odachyan’s

supplemental sentencing memorandum highlighted

Odachyan’s experiences prior to coming to the United States,

including his family history and his own childhood in

Armenia, his brother’s death, an earthquake, and food

shortages that led to his family’s emigration, as mitigating

factors in sentencing. Attached to the memo were many

letters from others describing these conditions.

In that context, it appears that the district court’s

statement was in response to arguments made by Odachyan

and was offered to explain why the district court was not

persuaded by them. At most, the statement reflects a “general

frustration” with the type of argument Odachyan made at

sentencing. See Lavoie, 475 U.S. at 821. That is not enough

“to overcome the presumption of honesty and integrity that

we accord to the determinations of a judge.” Crater v.

Galaza, 491 F.3d 1119, 1132 (9th Cir. 2007) (internal

quotation marks omitted).

III. Waiver of Other Arguments

This court reviews de novo whether or not a defendant

waived his right to appeal his sentence. United States v.

Bibler, 495 F.3d 621, 623 (9th Cir. 2007). “A defendant’s

waiver of his appellate rights is enforceable if the language of

the waiver encompasses his right to appeal on the grounds

raised, and if the waiver was knowingly and voluntarily

made.” United States v. Joyce, 357 F.3d 921, 922 (9th Cir.

2004).
10 UNITED STATES V. ODACHYAN

Odachyan waived his remaining challenges.1 As

described above, the plea agreement provided that Odachyan

waived the right to appeal his sentence, with limited

exceptions, as long as the sentence was within the statutory

maximum, was constitutional, and was “within or below the

range corresponding to a total offense level of 21, and the

applicable criminal history category as determined by the

[c]ourt.”

None of the exceptions contemplated by the plea

agreement apply here. The court imposed a sentence of 51

months’ imprisonment, which is within the ten-year statutory

maximum. 18 U.S.C. §§ 1347(a), 1349. As noted above, the

district court determined Odachyan’s criminal history

category to be II. That category combined with a total

offense level of 21 resulted in a guideline sentence of 41 to 51

months, and the sentence imposed was within that range. 

U.S.S.G. § 5A.

Odachyan does not argue that the agreement was not

knowingly and voluntarily made, and there is nothing that

indicates that it was not. The court conducted a proper Rule

11 colloquy wherein Odachyan indicated he both understood

and agreed to the waiver. Fed. R. Crim. P. 11; United States

v. Watson, 582 F.3d 974, 986–87 (9th Cir. 2009) (Rule 11

colloquy shows defendant waived his appellate rights

knowingly and voluntarily).

 

1

 Odachyan argues that the district court used the wrong amount as the

loss figure, erred in not granting a downward adjustment for minor role,

erred in granting an upward adjustment for use of sophisticated means,

and imposed a sentence that resulted in an unwarranted disparity in

comparison to the sentence imposed on another participant in the

conspiracy.
UNITED STATES V. ODACHYAN 11

Odachyan instead contends that, because the plea

agreement allows him to appeal certain issues including

restitution and criminal history,

2

and because it provides for

the possibility that his conviction might be vacated or

reversed on appeal,3 it should be read to allow him to appeal

2 The plea agreement included the following exception to Odachyan’s

waiver of his right to appeal:

Notwithstanding the foregoing, defendant retains any

ability defendant has to appeal the amount or terms of

any restitution order and the Court’s determination of

defendant’s criminal history category and the

conditions of supervised release imposed by the Court,

with the exception of the following: conditions set forth

in General Orders 318, 01-05, and/or 05-02 of this

Court; the drug testing conditions mandated by 18

U.S.C. §§ 3563(a)(5) and 3583(d); and the alcohol and

drug use conditions authorized by 18 U.S.C.

§ 3563(b)(7).

 

3

 The plea agreement provides:

Defendant agrees that if any count of conviction is

vacated, reversed, or set aside, or the sophisticated

means enhancement imposed by the Court to which the

parties stipulated in this agreement is vacated or set

aside, the USAO [U.S. Attorney’s Office] may: (a) ask

the Court to resentence defendant on any remaining

count of conviction, with both the USAO and defendant

being released from any stipulations regarding

sentencing contained in this agreement, (b) ask the

Court to void the entire plea agreement and vacate

defendant's guilty plea on any remaining count of

conviction, with both the USAO and defendant being

released from all of their obligations under this

agreement, or (c) leave defendant’s remaining
12 UNITED STATES V. ODACHYAN

his sentence on other grounds as well. That argument lacks

merit. Plea agreements are interpreted using contract

principles. Watson, 582 F.3d at 986. The plea agreement

here contains an integration clause stating there are no

understandings between the parties that are not included in

the agreement. At a minimum, the integration clause creates

a rebuttable presumption that if a right to appeal is not

explicitly provided for, as an exception to the general waiver,

it does not exist. See United States v. Ahn, 231 F.3d 26, 36

(D.C. Cir. 2000) (“Standing alone, such a clause would be

strong evidence that no implied promises existed–after all,

integration clauses establish that the written plea bargain was

adopted by the parties as a complete and exclusive statement

of the terms of the agreement.” (quoting United States v.

Fentress, 792 F.2d 461, 464 (4th Cir.1986), and collecting

additional authorities) (internal quotation marks omitted)). 

Odachyan’s arguments do not overcome this presumption.

That the plea agreement permitted an appeal on certain

specified grounds and acknowledged the possibility of

reversal or vacatur on appeal does not support the proposition

that the defendant is permitted to appeal on other grounds. 

To the contrary, the fact that a waiver of the right to appeal

explicitly sets out certain exceptions supports the proposition

that the right to appeal is limited to those exceptions. See,

e.g., Murphy v. DirecTV, Inc., 724 F.3d 1218, 1234 (9th Cir.

2013) (applying the “expressio unius est exclusio alterius”

maxim of statutory construction in the context of contract

interpretation). The point of making an exception is to depart

from the general rule, which in this case is his waiver of the

conviction, sentence, and plea agreement intact.

Defendant agrees that the choice among these three

options rests in the exclusive discretion of the USAO.
UNITED STATES V. ODACHYAN 13

right to appeal. Odachyan does not contend that his

arguments on appeal fall within the exceptions explicitly

outlined, and thus they are barred by the general waiver.

The language of the waiver encompasses Odachyan’s

right to appeal on the other grounds he has attempted to raise,

and the waiver was knowingly and voluntarily made. We

therefore dismiss Odachyan’s remaining challenges as

waived.

AFFIRMED in part, DISMISSED in part.

REINHARDT, Circuit Judge, concurring:

I agree with the majority that the district judge’s

statement just prior to imposing the sentence on the defendant

does not reach the level of a constitutional violation. That is

the only issue regarding the judge’s conduct that Odachyan

raises on appeal. Specifically, Odachyan does not raise the

statutory question whether because of his statement the judge

should have been disqualified under 28 U.S.C. § 144 or

28 U.S.C. § 455. For this reason, I do not consider whether

the judge’s statement requires his disqualification under those

statutes. Whether it does or not, however, in my view the

statement was clearly improper.

Petros Odachyan, an Armenian immigrant, pled guilty to

conspiracy to commit health care fraud. At sentencing, the

district judge prefaced his choice of an above-guidelines

sentence with the following statement:
14 UNITED STATES V. ODACHYAN

I am in constant wonder and amazement why

it is so many people come to this country

seeking a better life and then prey on this

government’s institutions as their own

personal piggybanks and then direct the court

to look at the terrible conditions from which

they came as somehow an excuse or

mitigating factor.

The majority is correct that this statement was likely made in

response to Odachyan’s sentencing memorandum, which

highlighted, as mitigating factors in sentencing, his childhood

in Armenia, his brother’s death, an earthquake, food

shortages, and his eventual immigration to the United States.

The context does not, however, make the statement any more

acceptable. On the contrary, the statement is wholly

inappropriate and particularly when made in connection with

the sentencing of a defendant.

First, the statement demonstrates an approach to

sentencing adverse to the instruction of 18 U.S.C. § 3553.

That section provides that a sentencing judge must make an

individualized determination regarding the appropriate

sentence for each person to come before him. It is the judge’s

duty to consider the “nature and circumstances” of the

specific offense and the “history and characteristics” of the

particular defendant. 18 U.S.C. § 3553(a)(1); see also United

States v. Barker, 771 F.2d 1362, 1365 (9th Cir. 1985) (“[T]he

concept of individualized sentencing is firmly entrenched in

our present jurisprudence.”). The district judge’s statement in

this case, far from being a signal of an individualized

determination, has no purpose but to inform the defendant

that his sentencer considers him to be one of those
UNITED STATES V. ODACHYAN 15

immigrants who come to this country and prey on its

institutions and that the judge will sentence him in that light.

Second, the judge’s remarks are particularlyinappropriate

because they are directed at immigrants as a class. The

remarks unjustly demean the desire of immigrants to seek a

better life, belittle the hardship and persecution they may

have experienced in their native land, and suggest that “so

many” of them are engaged in exploiting this country’s

institutions rather than contributing to them as immigrants

have throughout history. See Arizona v. United States, 132 S.

Ct. 2492, 2510 (2012) (“The history of the United States is in

part made of the stories, talents, and lasting contributions of

those who crossed oceans and deserts to come here.”). The

district judge, as an officer of the court, should avoid the

appearance of stereotyping, and refrain from giving voice at

sentencing hearings to his personal feelings about members

of minority groups, including immigrants, and their

connection with crime in general or with various types of

crimes in particular. Certainly a judge should not announce

those beliefs in connection with the imposition of an aboveguidelines sentence.

In sum, the district judge’s statement, although 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 judge sentence on an individual basis and

because it lends the appearance of stereotypical thinking

regarding alienage or membership in a particular racial,

ethnic, or religious group. Judges should forgo making such

statements at all times but especially when judging the

conduct of individuals in the course of criminal proceedings.