The defendant pleaded guilty to conspiracy to commit health care fraud. At sentencing, he wanted to change his plea. The judge told him that sentencing was not the proper place to do that. He appealed. The Ninth Circuit agreed with the judge.

In an opinion authored by Judge Ronald M. Gould, a three-judge panel for the Ninth Circuit Court of Appeals ruled unanimously on July 9 that plaintiff-appellee Ashot Minasyan had waived his right to appeal most aspects of his sentence when he entered into a valid and enforceable plea agreement. The district court’s judgment was affirmed.

Minasyan was co-owner of Fifth Avenue Home Health, a home-health service agency. For four years, between 2010 and 2014, he and his fellow owner recruited patients for alleged treatment from a nearby physician, Dr. Robert Glazer. Glazer then billed Medicare for over $4 million in unnecessary services. In 2015, Medicare reviewed Glazer’s bills and rejected 240 claims.

Evidence from Glazer’s trial was introduced at Minasyan’s. This included a “light box” that was used to trace patient’s signatures onto Medicare forms, as well as blank, pre-signed forms that showed “an ongoing fraud.” For his part in this conspiracy, Minasyan was sentenced to 78 months in prison, followed by three years of supervised release.

His plea agreement waived his right to appeal unless he could prove his plea was involuntary or that his offense level was not greater than under the Sentencing guidelines. At sentencing, for being part of a conspiracy to commit health care fraud, he received a base offense level of six, with two added levels for abuse of trust, which were adjusted when he accepted responsibility. The government dropped charges against him for money laundering and health care fraud.

The parties could not agree on how much money was actually involved in the scheme. It was somewhere between $250,000 and $9.5 million. The amount of loss can increase Sentencing Guideline levels. Since no agreement about the loss was reached, the government agreed to a minimum level of 17 for Minasyan. Since this number was below 25, Minasyan’s plea agreement was below that amount, so no appeal would be allowed.

Before his sentencing hearing, Minasyan, who came to court with an Armenian interpreter, filed several motions. He disputed the dollar amount of loss, asked for a new attorney because his current one had “pushed him” to plead guilty, and moved to withdraw his guilty plea. The district court called Minasyan’s motions court an “exercise in gamesmanship that has wasted the Court’s time.”

The district court’s comments at the time of sentencing were also called into question by the appellant. He quoted District Court Judge Otis D Wright II’s hearing statement that explained the error of Minasyan’s desire to only be held accountable for his part of Medicare’s loss. Otis explained that his plea agreement had knowingly acknowledged that he was part of a conspiracy.

Appellant also took issue with Otis’ statement that said: “[I]t would seem to me that pleading guilty is just exactly the wrong thing to do, that what you need to be able to do is put on a case or at least be able to cross-examine the government’s case and contest this loss amount. But to plead guilty, you are pretty much admitting these allegations. [The sentencing hearing] is a strange time to try to then contest it after you have admitted to all of this wrongdoing.” Ninth Circuit Judge Gould commented that Otis’s statement “may have been casual or imprudent, (but) the statements did not render his guilty plea involuntary.”

Gould rejected all of the appellant’s arguments because Minasyan “knowingly and voluntarily accepted the plea agreement, and had said that he understood it all.” In a strong opening to his restatement of the law of plea agreements, he said, “The crux of this case concerns whether the appeal waiver was valid and enforceable. If so, then there is no need to address any other claims encompassed by the appeal waiver.”

The Ninth Circuit opinion explained that “an appeal waiver in a plea agreement is enforceable if the language of the waiver encompasses (the defendant’s) right to appeal on the grounds raised and if the waiver was knowingly and voluntarily made.” With this definitional precedent, he concluded that none of Minasyan’s contentions lead to an acceptable appeal. Appellant erroneously presented four reasons for withdrawal of his appeal: that his pleas were not made knowingly, intelligently or voluntarily: the court did not give him the right to present evidence of the loss amount; he was misinformed about the elements of the crime with which he was charged; and the government breached the plea agreement.” Gould concluded, “None of Minasyan’s claims have merit.”

He then provided the standard for withdrawing a plea after it was accepted. He explained that the defendant has the burden of showing a “permissible reason” for withdrawing the plea, and concluded that one “did not exist when defendant entered his plea.” Regarding his arguments that he was denied proper opportunities to present his evidence, Gould said, “We conclude that Minasyan had a full and fair opportunity to be heard.”

Minasyan’s final argument was that the appellate waiver is unenforceable “because the government breached the plea agreement.” This one was unpersuasive as well. Gould said the government had the right to argue for a loss calculation that exceeded Minasyan’s, and their description of the lightbox used for forging patient signatures as a “hallmark of fraud” was not a “clear or obvious error based on the evidence. Here too, appellant failed to meet the standard required for an appeal waiver.

The Ninth Circuit concluded that Minasyan’s lack of a valid appeal waiver negated the need to consider his additional claims. The court’s ruling made it clear that knowing and voluntary acceptance of a plea agreement places a heavy burden on any defendant who wishes to disavow it in the future.