1 13-2925-cr United States v. Baghoumian UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION

A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 5 th day of September, two thousand fourteen. PRESENT: GUIDO CALABRESI, REENA RAGGI, DENNY CHIN, Circuit Judges.

---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. No. 13-2925-cr HERAYER BAGHOUMIAN, aka S ealed Defendant 5, aka Vazken, Defendant-Appellant , ARMEN KAZARIAN, aka Sealed Defendant 1, aka Pzo, aka Qerop, aka Armen Kazar in, DAVIT MIRZOYAN, aka Sealed Defendant 2, ROBERT TERDJANIAN, aka Sealed Defendant 3, aka Robik, aka Robert Vovk, ALEKSANDR AVETISYAN, aka Seal ed Defendant 4, aka Vladimir Arushunyan, POGOS SATAMYAN, aka Sealed Defendant 6, ARTUR YEPI SKOPOSYAN, aka Sealed Defendant 7, aka Butani a, VAGAN STEPANIAN, aka Sealed Defendant 8, VARUJAN AMROYAN, aka Sealed2 Defendant 9, aka Varush, JA COB POGOSIAN, aka Sealed Defendant 10, KAREN SIMONI AN, aka Sealed Defendant 11, VARTAN BOYZADZHYAN, aka Sealed Defendant 12, aka Levon Papikan, aka Ararat Bedrousian, ARTUR MANASARIAN, aka Sealed Defendant 13, GOURGEN MIRIMANIAN, aka Sealed Defendant 14, aka Edo, MANUK MURADAKHANYAN, aka Sealed Defendant 15, aka Manch, LIANA SO GHOYAN, aka Sealed Defendant 16, TIKRAN TA KVORYAN, aka Sealed Defendant 17, GAYANE KHATCHATURYAN, aka Sealed Defendant 18, GAGIK KYURKCHYAN, aka Sealed Defendant 19, ANNA ZAICHIK, aka Sealed Defendant 20, ARON CHERVI N, aka Sealed Defendant 21, KAREN AHARONIAN, aka Sealed Defendant 22, ARMEN GRIGORIAN, aka Sealed Defendant 23, KAREN MARKOSIAN, aka Sealed Defendant 24, ANNA TERMARTIROSYAN, aka S ealed Defendant 25, MICHAEL DOBRUSHIN, aka Sealed Defendant 26, SAMVEL HAKOPYAN, aka Sealed Defendant 27, RAFIK TERDJANIAN, aka Sealed Defendant 28, Defendants. *

-------------------------------------- -------------------------------- FOR APPELLANT: James M. Branden, ESQ., New York, New York. FOR APPELLEE: Harris Fischman, Brent S. Wible, Assistant United States Attorneys, for Preet Bharara, United States Attorney fo r the Southern District of New York, New York, New York. Appeal from a judgment of the United States District Court for the Southern District of New York (Paul G. Gardephe, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on April 15, 2013, is AFFIRMED.

* The Clerk of Court is directed to am end the official caption as shown above.3 Defendant Herayer Baghoumian, who st ands convicted on a guilty plea of racketeering conspiracy, see 18 U.S.C. § 1962(d ), asserts that the district court committed procedural and substantive error in senten cing him to 135 months’ imprisonment. In reviewing the challenged sentence for “reasonab leness,” “a particularly deferential form of abuse-of-discretion review,” United States v. Cavera, 550 F.3d 180, 188 n.5 (2d Cir. 2008) (en banc), we assume the parties’ familiarit y with the facts and the record of prior proceedings, which we referen ce only as necessary to expl ain our decision to affirm.

1. Procedural Reasonableness Baghoumian asserts that the district court committed procedural error by not adequately considering mitigating circumstances, relying instead only on (1) the fact that his participation in Medicare fraud affected the nation’s health care system, which the court characterized as an extremely “important issue in this country,” A. 184, and (2) the need to promote general deterrence. We disagree. 1 We entertain “a strong presumption” th at a sentencing judge has considered all arguments properly presented, “unless the record clearly suggests otherwise.” United States v. Cossey, 632 F.3d 82 , 87 (2d Cir. 2011) (internal quot ation marks omitted). Here,

the record shows that the dist rict court considered not only the nature of Baghoumian’s crime and the need for general deterrence, but also numerous po tentially mitigating factors,

1 Because we identify no error, we need not consider whethe r Baghoumian’s failure to raise his entire inadequate consideration argument in the district court limits our review to plain error. See United States v. Villa fuerte, 502 F.3d 204, 208 (2d Cir. 2007).4 including Baghoumian’s role in the offense, his limited cr iminal history, his family ties, and the possible immigration c onsequences of his conviction. Indeed, the district court expressly referenced some of these factor s in granting Baghoumian a downward variance from Criminal History Category III to Category II. In such circumstances, we identify no procedural error in sentencing. See United States v. Bonilla , 618 F.3d 102, 111 (2d Cir. 2010) (“The District Court here considered all arguments of counsel and fully stated the reasons for the sentence imposed, and that was all that was required.”); cf. United States v. Corsey, 723 F.3d 366, 376 (2d Cir. 2013) (identifying error where district court provided only “passing mention to any of the section 3553(a) factors,” instead justifying maximum sentence “by relying almost exclus ively on one word—‘deterrence’”).

2. Substantive Reasonableness In challenging the substantive reasonabl eness of his sentence, Baghoumian bears a heavy burden because we will set aside a district court’s substantive determination only in exceptional cases where the trial court’s deci sion “cannot be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted); see United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008) (recognizing that broad range of sentences can be reasonable in particular case). Thus, we do not substitute our own judgment for that of the sentencing court; we ask only whether the challenged sentence is so “shockingly high, sh ockingly low, or otherwise unsupportable as a matter of law,” that allowing it to stand would “damage the administration of justice.”5 United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009); accord United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). That is not this case. Baghoumian asserts that his 135-m onth prison sentence is substantively unreasonable because any senten ce above 121 months—the upp er end of the Guidelines range calculated in his plea agreement, which did not account for his th en undisclosed prior convictions—is improper in light of his role in the offense, personal history, and possible deportation. Where, as here, the district c ourt explicitly considered such facts in imposing sentence, we will not second guess the weight it assigns them “as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.” United States v. Fernandez, 443 F. 3d 19, 32 (2d Cir. 2006) (recognizing that “weight to be afforded any given argument made pursuant to one of the § 3553(a) factors is a matter firmly committed to the discretion of the sentencing judge” and generally is beyond appellate review). In light of Baghoumian’s substantial participation in a Medicare fraud scheme that resulted in loss between $7 million and $20 million, we cann ot conclude that a

135-month sentence—within the 108-to-135 mo nth Guidelines range resulting from the

district court’s downward variance—is outside the range of substantive reasonableness. See id. at 27 (stating that “overwhelming majority” of Guide lines sentences are substantively reasonable); see also United States v. Jones, 531 F.3d at 174. Accordingly, Baghoumian’s senten cing challenges fail on the merits.6 We have considered Baghoumian’s remaini ng arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

FOR THE COURT: CATHERINE O = HAGAN WOLFE, Clerk of Court