13-2925-cr
United States v. Baghoumian
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 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 APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY 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 Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 5th day of September, two thousand fourteen.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 13-2925-cr
HERAYER BAGHOUMIAN, aka Sealed Defendant 5, aka
Vazken,
Defendant-Appellant,
ARMEN KAZARIAN, aka Sealed Defendant 1, aka Pzo,
aka Qerop, aka Armen Kazarin, DAVIT MIRZOYAN, aka
Sealed Defendant 2, ROBERT TERDJANIAN, aka Sealed
Defendant 3, aka Robik, aka Robert Vovk, ALEKSANDR
AVETISYAN, aka Sealed Defendant 4, aka Vladimir
Arushunyan, POGOS SATAMYAN, aka Sealed
Defendant 6, ARTUR YEPISKOPOSYAN, aka Sealed
Defendant 7, aka Butania, VAGAN STEPANIAN, aka
Sealed Defendant 8, VARUJAN AMROYAN, aka Sealed
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Defendant 9, aka Varush, JACOB POGOSIAN, aka Sealed
Defendant 10, KAREN SIMONIAN, 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 SOGHOYAN, aka Sealed
Defendant 16, TIKRAN TAKVORYAN, aka Sealed
Defendant 17, GAYANE KHATCHATURYAN, aka
Sealed Defendant 18, GAGIK KYURKCHYAN, aka
Sealed Defendant 19, ANNA ZAICHIK, aka Sealed
Defendant 20, ARON CHERVIN, 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 Sealed Defendant 25,
MICHAEL DOBRUSHIN, aka Sealed Defendant 26,
SAMVEL HAKOPYAN, aka Sealed Defendant 27,
RAFIK TERDJANIAN, aka Sealed Defendant 28,
Defendants.*
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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 for 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 ORDERED, ADJUDGED,
AND DECREED that the judgment entered on April 15, 2013, is AFFIRMED.
*
The Clerk of Court is directed to amend the official caption as shown above.
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Defendant Herayer Baghoumian, who stands 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 sentencing him to 135 months’ imprisonment. In
reviewing the challenged sentence for “reasonableness,” “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’ familiarity with the facts and the record of prior
proceedings, which we reference only as necessary to explain 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” that 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 quotation marks omitted). Here,
the record shows that the district court considered not only the nature of Baghoumian’s
crime and the need for general deterrence, but also numerous potentially mitigating factors,
1
Because we identify no error, we need not consider whether Baghoumian’s failure to
raise his entire inadequate consideration argument in the district court limits our review to
plain error. See United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007).
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including Baghoumian’s role in the offense, his limited criminal history, his family ties,
and the possible immigration consequences of his conviction. Indeed, the district court
expressly referenced some of these factors 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 exclusively on one word—‘deterrence’”).
2. Substantive Reasonableness
In challenging the substantive reasonableness 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 decision “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, shockingly low, or otherwise unsupportable as
a matter of law,” that allowing it to stand would “damage the administration of justice.”
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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-month prison sentence is substantively
unreasonable because any sentence above 121 months—the upper end of the Guidelines
range calculated in his plea agreement, which did not account for his then undisclosed prior
convictions—is improper in light of his role in the offense, personal history, and possible
deportation. Where, as here, the district court 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 cannot conclude that a
135-month sentence—within the 108-to-135 month 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 Guidelines sentences are
substantively reasonable); see also United States v. Jones, 531 F.3d at 174.
Accordingly, Baghoumian’s sentencing challenges fail on the merits.
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We have considered Baghoumian’s remaining 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
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