FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50253
Plaintiff-Appellee,
D.C. No.
v. 2:08-cr-00414-ODW-2
PETROS ODACHYAN,
Defendant-Appellant. 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, Judge Reinhardt wrote 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 Defendant-
Appellant.
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 anti-
immigrant 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 constitutionally disqualifying
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 particularly inappropriate
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 above-
guidelines 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.