Supreme Court of the United States

Home , Ex post facto law

No. 16-

In the Supreme Court of the United States

EDGAR SHAKBAZYAN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Mark J. Geragos Counsel of Record Geragos & Geragos, APC 644 South Figueroa Street Los Angeles, California 90017 (213) 625-3900 [email protected]

Counsel for Petitioner

270763 A (800) 274-3321 • (800) 359-6859 i

QUESTION PRESENTED FOR REVIEW

Is a criminal defendant’s Constitutional right against Ex Post Facto punishment compromised when a United States Sentencing Statute is amended resulting in an increased punishment, with effective date of the amendment both pre-dating and post-dating the underlying substantive criminal conduct charged in a criminal indictment?

Should District Courts be bound by the “one-book” rule pursuant to U.S.S.G. §1B1.11, or should a two-book rule be adopted so as to not impose a sentence that runs afoul to the United States Constitution and its Ex Post Facto Clause? Or, in the alternative, should District Courts apply pre-amendment Guidelines to all counts so as to avoid violating the Ex Post Facto Clause?

This question presents a United States Courts of Appeal circuit split. ii

LIST OF PARTIES

The caption hereto identifies all parties to the proceeding in the court whose judgment is sought to be reviewed. iii

CORPORATE DISCLOSURE STATEMENT

There are no entities requiring disclosure pursuant to Rule 29.6. iv

TABLE OF CONTENTS Page QUESTION PRESENTED FOR REVIEW . . . . .i

LIST OF PARTIES ...... ii

CORPORATE DISCLOSURE STATEMENT . . . iii

TABLE OF CONTENTS ...... iv

TABLE OF CITED AUTHORITIES ...... vi

PETITION FOR WRIT OF CERTIORARI TO UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ...... 1

OPINIONS AND ORDERS BELOW ...... 1

STATEMENT OF JURISDICTION ...... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... 2

STATEMENT OF THE CASE ...... 3

A. U.S.S.G. § 2B1.1., App. Note 4 (E) Expanded the Definition of “Victim” ...... 6

OPINION BELOW ...... 9

REASONS FOR GRANTING REVIEW . . . . . 12 v

Table of Contents Page A. The United States Court of Appeals Circuit Split With Respect to the One- book Rule Results in Due Process Conflicts for Criminal Defendants . . . . . 12

B. The Third and Ninth Circuits Have Concluded that Application of § 1B1.11(b)(3) May Run Afoul to the Ex Post Facto Clause of the United States Constitution . . .12

C. The First, Second, Fourth, Sixth, Seventh, Eighth and Eleventh Circuits—Like the Fifth Circuit in This Case—Have Concluded that Sentences Consistent With § 1B1.11(b)(3) Do Not Violate the Ex Post Facto Clause . . .14

D. This Case Is the Proper Vehicle for the Court to Address This Critical Issue . . . . 17

CONCLUSION ...... 18

APPENDIX ...... 1a vi

TABLE OF CITED AUTHORITIES Page CASES

U.S. v. Sullivan, 242 F.3d 1248 (10th Cir. 2001), opinion vacated and superseded on reh’g, 255 F.3d 1256 (10th Cir. 2001) ...... 16, 17

United States v. Bailey, 123 F.3d 1381 (11th Cir. 1997) ...... 15

United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994) ...... 12, 13

United States v. Conner, 537 F.3d 480 (5th Cir. 2008) ...... 7

United States v. Cooper, 35 F.3d 1248 (8th Cir. 1994), cert. granted, judgment vacated, 514 U.S. 1094, 115 S. Ct. 1820, 131 L. Ed. 2d 742 (1995), and opinion reinstated, 63 F.3d 761 (8th Cir. 1995) ...... 15

United States v. Duane, 533 F.3d 441 (6th Cir. 2008) ...... 14

United States v. Kimler, 167 F.3d 889 (5th Cir. 1999) ...... 10, 11

United States v. Kumar, 617 F.3d 612 (2d Cir. 2010) ...... 15, 17 vii

Cited Authorities Page United States v. Lewis, 235 F.3d 215 (4th Cir. 2000) ...... 15, 17

United States v. Ortland, 109 F.3d 539 (9th Cir. 1997) ...... 13, 14

United States v. Pagan-Ferrer, 736 F.3d 573 (1st Cir. 2013) ...... 15

United States v. Shakbazyan, 841 F.3d 286 (5th Cir. 2016) ...... 9, 10, 11

United States v. Vivit, 214 F.3d 908 (7th Cir. 2000) ...... 14

STATUTES AND OTHER AUTHORITIES

U.S. Const. art. I, § 9, cl. 3 ...... 2

U.S. Const. art. I, § 10, cl. 1 ...... 2

18 U.S.C. § 371 ...... 6

18 U.S.C. § 1347 ...... 5

28 U.S.C. § 1254(1) ...... 2

U.S.S.G. § 1B1.11 ...... 2

U.S.S.G. § 1B1.11(b)(3) ...... 12, 13, 14 viii

Cited Authorities Page U.S.S.G. § 2B1.1 ...... 6, 7

U.S.S.G. § 2B1.1(b)(2)(C) ...... 6 1

PETITION FOR WRIT OF CERTIORARI TO UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Petitioner Edgar Shakbazyan has been deprived of his right to due process and his rights under the Ex Post Facto clause of the United States Constitution, after the sentencing court imposed a sentence based on an amended sentencing statute that was not enacted during the majority of the substantive criminal acts alleged in the underlying Indictment, but that caused an increased sentence and term of incarceration. Petitioner contends that the sentencing court’s arbitrary selection of which version of the United States Sentencing Guidelines to adopt in imposing a sentence was an abuse of discretion that resulted in an unconstitutional sentence. Petitioner respectfully requests that this Court review the Fifth Circuit’s opinion denying Petitioner’s appeal because of a circuit split among the United States Court of Appeal regarding the application of the One-Book rule in these circumstances. Accordingly, Petitioner respectfully prays that a writ of certiorari issue to review the opinion of the United States Court of Appeals for the Fifth Circuit entered in the above-entitled proceeding on October 26, 2016.

OPINIONS AND ORDERS BELOW

The opinion of the Court of Appeals was certified for publication, reported at 841 F.3d 286 (5th Cir. 2016), and is reproduced in the Appendix, App. 1. 2

STATEMENT OF JURISDICTION

The opinion of the United States Court of Appeals for the Fifth was entered on October 26, 2016. No petition for rehearing was filed. This petition is filed within ninety (90) days of the October 26, 2016 opinion. The question presented is within this Court’s jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. The Ex Post Facto Clause of the United States Constitution, U.S. Const. art. I, § 9, cl. 3 & U.S. Const. art. I, § 10, cl. 1, which which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to the Ex Post Facto Clause is fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.

2. U.S.S.G. 1B1.11 which provides: (a) The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced. (b)(1) If the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed. (2) The Guidelines Manual in effect on a particular 3

date shall be applied in its entirety. The court shall not apply, for example, one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual. However, if a court applies an earlier edition of the Guidelines Manual, the court shall consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes. (3) If the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses.

STATEMENT OF THE CASE

From around April 2009 and continuing through August of 2009, and a single transaction occurring in February of 2010, in the Houston Division of the Southern District of Texas, Mr. Shakbazyan engaged in a conspiracy to commit healthcare fraud.

The co-defendants involved in the conspiracy were Dario Juarez (“Mr. Juarez”), Dennis Barson, D.O. (“Dr. Barson”), “George,” and unnamed individuals. The conspiracy operated out of a clinic located at 8470 Gulf Freeway, Suite G, Houston, Texas (“Barson Clinic” or the “Clinic”). Dr. Barson was the medical director of the Barson Clinic and the Clinic opened in or around June 2009. Dr. Barson applied to Medicare for a provider number to be utilized by the Clinic. Dr. Barson opened a bank account also to receive deposits into. The Medicare payments were deposited in Dr. Barson’s bank account. 4

On or about April 27, 2009, Dr. Barson signed the Medicare application and related documents. On the same day, Dr. Barson opened a bank account, number ending in 3074, in his name at Wells Fargo Bank. Dr. Barson signed several blank checks and retained the checkbook for himself. Mr. Shakbazyan also had access to checks from this account. To further the conspiracy, Dr. Barson agreed to travel to Houston every two weeks to review ten percent of the patient files. Dr. Barson was to be paid $7,000 per month for his services.

Co-defendant Juarez was also hired to work at the Barson Clinic. Mr. Shakbazyan believed Mr. Juarez was a fully licensed physician because of his representations and the various medical diplomas that Mr. Juarez presented. Mr. Juarez was to be paid a set amount via check and receive ten percent of the gross billing.

Mr. Shakbazyan was a manager and present at the Clinic for approximately four days per week until July 17, 2009. On July 17, 2009, Mr. Shakbazyan left Houston for Los Angeles and later traveled to Armenia. Mr. Shakbazyan never returned to the Barson Clinic thereafter.

Additionally, uncharged co-conspirators were paid to refer patients to the Barson Clinic. These patients were then paid to attend the Barson Clinic. The Barson Clinic caused Medicare to be billed for testing and treatments that were apparently never done.

Mr. Shakbazyan did not participate in the actual billing of Medicare. Rather, George, an uncharged co-conspirator, worked at the Clinic as an ultrasound 5 technician and assistant manager, and was responsible for the billing. Mr. Juarez would fill out the super bills and would hand off the super bills to George at the end of each day. George would then proceed to fax these super bills to a separate entity that would actually bill directly to Medicare. Mr. Shakbazyan was not aware of the procedures of the super bills, the extent of the billing, nor the amount of the billing. The details of the super bills were handled by Mr. Juarez and George. Further, throughout the operation, Mr. Shakbazyan and George reported to unnamed people that actually owned the Barson Clinic.

The 21-count Indictment was filed on December 12, 2013 and charged Mr. Shakbazyan, Dr. Barson, and Mr. Juarez collectively.

On October 27, 2014, on the eve of trial, Mr. Shakbazyan pleaded guilty to all counts of the twenty- one count First Superseding Indictment filed in United States District Court for the Southern DIstrict of Texas, in case number 4:13-cr-00367. Count 1 of the Indictment alleged a charge of conspiracy to commit healthcare fraud, a violation of Title 18 United States Code Section 1349. Specifically, this count charged conduct thatstarted in 2009 through February of 2010 over a period of “39 days.” Counts 2 through 20 of the Indictment charged Mr. Shakbazyan with the substantive counts of violating Title 18 United States Code Section 1347, healthcare fraud. These counts charged conduct that occurred, according to the Indictment, beginning in or about June of 2009 to in or about August of 2009. 6

Finally, Count 21 of the Indictment charged Mr. Shakbazyan with conspiracy in violation of Title 18 United States Code Section 371, for conduct that occurred in beginning of June of 2009 and continuing to August of 2009.

Significantly, Count 1, the conspiracy count, covers a different period of time than the actual substantive offenses charged in Counts 2 through 21.

Mr. Shakbazyan was sentenced on July 27, 2015. At sentencing, the District Court adopted the PSR’s recommendation of a total base offense level of 30, which included a 6 level sentencing enhancement pursuant to U.S.S.G. § 2B1.1(b)(2)(C) for the number of victims implicated in the Indictment. The District Court retroactively applied the November 2009 United States Sentencing Guidelines which included an amendment expanding the definition of “victim” in fraud cases. In total, the Court adopted a total offense level of 30, and imposed a 97-month sentence.

A. U.S.S.G. § 2B1.1., App. Note 4 (E) Expanded the Definition of “Victim”

On November 1, 2009, Section 2B1.1 of the United States Sentencing Guidelines was amended with Application Note 4 (E) which expanded the definition of “victim” as it applies to cases involving means of identification to include, “. . . any individual whose means of identification was used unlawfully or without authority.” U.S.S.G. § 2B1.1., App. Note 4 (E). Prior to this amendment, the definition of victim was limited to: “(A) any person who sustained any part of the actual loss determined under subsection 7

(b)(1); or (B) any individual who sustained bodily injury as a result of the offense.” U.S.S.G. § 2B1.1. Under this limited definition, an enhancement for the number of victims would be unwarranted because the patients in this case cannot be classified as “victims” since they did not sustain any actual losses.

It has been conceded that only Medicare sustained actual losses in the alleged conspiracy. Prior to the 2009 amendment, the Fifth Circuit found that the Guidelines’ definition of victim did not include individuals who are reimbursed by an entity in a fraud scheme. United States v. Conner, 537 F.3d 480, 492 (5th Cir. 2008) (finding account holders were not “victims” under USSG because they were reimbursed for losses by credit card companies). Even with respect to Count 1 of the Indictment, the individuals are characterized as “submissions” rather than patients or even victims. Conner which was decided by the Fifth Circuit in 2008, was in effect during the limited time period covered by Counts 2 through 20 of the Indictment alleging conduct that began in June of 2009 and ceased in August of 2009. During the period of the substantive conduct in this case, which covers most of the Indictment, Conner was available as a defense to Mr. Shakbazyan until the 2009 Guideline amendment reached an opposite conclusion.

Section 2B1.1 applies a 6 level sentencing enhancement to an offense that involves 250 or more “victims.” U.S.S.G. 2B1.1. This 6 level enhancement was applied to Petitioner Shakbazyan’s total offense level pursuant to the expanded definition of “victim” provided by the 2009 amendment. Petitioner maintains that application of the expanded definition to calculate his total offense level was in 8 violation of the Ex Post Facto clause of the United States Constitution.

It is undisputed that the expanded definition of victim was not in effect during the pendency of Counts 2 through 21 of the Indictment. It is also an undisputed fact that the clinic which was the subject of the Indictment closed and ceased its operations in August of 2009. With respect to Count 1 of the Indictment, except for one wire transaction amounting to $9,700 from an unindicted co-conspirator to the Bank of America account of co-defendant Barson on February 19th, 2010, all activity alleged in this conspiracy ceased in August of 2009. Sentencing Transcripts at Pg. 91. Petitioner Shakbazyan’s involvement in the conspiracy had terminated with the closure of the clinic. It is true that the February 19, 2010 transaction is indeed charged in Count One of the Indictment, and Mr. Shakbazyan plead to the entire Indictment. However, Mr. Shakbazyan accepted an open plea from the court on the eve of trial. Prior to that, the Government in this case chose not to convey a plea offer to him. Although the Government does not have an obligation to convey a plea offer to a criminal defendant, it has nevertheless been customary to do so. As a result, Mr. Shakbazyan was in no position to agree on an accurate factual basis to his guilty plea absent going to trial. Accordingly, because of the February 19, 2010 transaction that he personally did not have any involvement with was imputed to him, Count 1 subjected him to the amended version of the sentencing statute with the expanded definition of victim. With the 6-level enhancement, Mr. Shakbazyan’s total offense level was 30 with a criminal history category of I, reflecting a term of 97 to 121 months. Without the 6-level enhancement, his range of imprisonment would have been 51 to 63 months. 9

United States v. Shakbazyan, 841 F.3d 286, 289 (5th Cir. 2016).

At the July 27, 2015 sentencing proceedings, Mr. Shakbazyan objected to the 6-level enhancement on the ground that using the 2009 definition of “victim” to enhance his sentence on Counts 2 through 21 violated the Ex Post Facto Clause. The district court overruled this objection, and sentenced Shakbazyan to 97 months of imprisonment. Id. Petitioner appealed.

On Appeal, Petitioner argued that application of the November 2009 guideline amendments cannot be applied to Counts 2 through 20 of the Indictment because they are barred by the ex post facto clause. The 2009 version of the Guidelines could technically be applied to Count 1 which alleges conduct that occurred post November of 2009, in February of 2010. However, the existence of Count 1 alone does not revive ex post facto application of the November 2009 Guidelines to the 19 substantive counts as the Government claimed at sentencing. Rather, the Court should have applied the appropriate guideline in order to not run afould to ex post facto principles. Petitioner argued that if the sentencing court adopted the Probation Department’s position that it is the “last date of the offense of conviction as a controlling date,” the ex post facto ramifications remain and Mr. Shakbazyan is still prejudiced.

OPINION BELOW

In a published opinion, United States v. Shakbazyan, 841 F.3d 286 (5th Cir. 2016), issued on October 26, 2016, the United States Court of Appeals for the Fifth Circuit 10 affirmed Petitioner’s sentence holding that the application of the statute amended on November 1, 2009 did not violate the Ex Post Facto clause.

The Fifth Circuit cited to its decision in United States v. Kimler, 167 F.3d 889 (5th Cir. 1999), which held that “where a sentencing court groups offenses committed before a change in the sentencing guidelines with offenses after the amendment, and then applies the amended guideline in determining a defendant’s appropriate sentence, the Ex Post Facto Clause is not implicated.” Id. at 893. United States v. Shakbazyan, 841 F.3d 286, 290–91 (5th Cir. 2016) citing United States v. Kimler, 167 F.3d 889. 893 (5th Cir. 1999). The Court held that the Guidelines’ “one-book rule” combined with grouping rules gives a criminal defendant sufficient notice “that the version of the sentencing guidelines in effect at the time he committed the last of a series of grouped offenses will apply to the entire group.” United States v. Shakbazyan, 841 F.3d 286, 291 (5th Cir. 2016) citing United States v. Kimler, 167 F.3d 889, 894–95 (5th Cir. 1999). Accordingly, the Fifth Circuit holds that notice eliminates any Ex Post Facto Clause concerns. Id. at 291. According to the Fifth Circuit’s Opinion, Mr. Shakbazyan, while on notice by the guideline amendments, acted at his own peril when an unindicted co-conspirator wired $9,500 to the bank account held by co-defendant Barson. Id. In reality, Mr. Shakbazyan had no role in the conspiracy after the clinic was shut down and ceased to operate in August of 2009 nor did he have access to the account. However the Fifth Circuit stated “Therefore, a defendant who decides to ‘continue his illegal activities ... after the revisions in the sentencing guidelines’ does so at his own peril because ‘that decision allow[s] the sentencing court to determine 11 his appropriate sentence with reference to the guidelines in effect when the last criminal act in the grouped series was committed without running afoul of the Constitution.’” United States v. Shakbazyan, 841 F.3d 286, 291 (5th Cir. 2016) citing United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).

The one and only overt act that is alleged in Count 1 of the Indictment after the clinic closed in August of 2009 was the February 2010 wire transaction. The Fifth Circuit mischaracterizes the extent and degree of the conduct as far as it being imputed to Shakbazyan. In the October 26th opinion, the Court states that the November 1, 2009 amendment was sufficient for Ex Post Facto purposes to give adequate notice to Shakbazyan “that his pre- November 1, 2009 offenses would be grouped with the Count 1 conspiracy offense, and therefore that the 2009 Guidelines would apply. Indeed, ‘[i]t was [Shakbazyan’s] decision to continue his illegal activities related to his ... [conspiracy] offense[ ] after the revisions in the sentencing guidelines, and that decision allowed the sentencing court to determine his appropriate sentence with reference to the guidelines in effect when the last criminal act in the grouped series was committed without running afoul of the Constitution.’” Id. at 291 citing Kimler, 167 F.3d at 893. The Court concluded that the Fifth Circuit’s decision in Kimler foreclosed Shakbazyan’s Ex Post Facto claim. Id. 12

REASONS FOR GRANTING REVIEW

A. The United States Court of Appeals Circuit Split With Respect to the One-book Rule Results in Due Process Conflicts for Criminal Defendants

In this case, the Fifth Circuit joined the Courts of Appeals for the First, Second, Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits, which have all concluded that the One Book Rule applies in circumstances such as this, where an amendment to the Sentencing Guidelines both pre-dates and post-dates the substantive and distinct criminal offenses charged in an Indictment. The Third and Ninth Circuits are divided from the remaining circuits and have reached contrary results. The United States Supreme Court is the only source of resolution for this conflict to provide uniformity on the issue of implicating the Ex Post Facto Clause of the United States Constitution when applying the Sentencing Guidelines, presenting an important federal constitutional question.

B. The Third and Ninth Circuits Have Concluded that Application of § 1B1.11(b)(3) May Run Afoul to the Ex Post Facto Clause of the United States Constitution

In a scenario similar to that in the present case, the Third Circuit in United States v. Bertoli, 40 F.3d 1384, 1404 (3d Cir.1994) held that “[t]he fact that various counts of an indictment are grouped cannot override ex post facto concerns.” In Bertoli, the district court grouped the counts for sentencing purposes, applying the revised sentencing guidelines to all counts, even that which occurred before 13 the enactment of the revised guidelines, which increased the defendant’s sentence. Id. at 1403-04. On appeal, the Third Circuit vacated the sentence on the ground that it violated the Ex Post Facto Clause, but did so without rejecting the one-book rule. Id. at 1403-04, 1407. The court held that the sentencing court could apply the one-book rule without violating the ex post facto clause by applying the pre-amendment Guidelines to all counts. See id. at 1403-1404.

The Ninth Circuit reached a similar conclusion in United States v. Ortland, 109 F.3d 539 (9th Cir.1997), but supplied a different solution to the Ex Post Facto concern. In Ortland, the defendant was charged with five counts of mail fraud, but only the fifth count covered conduct that occurred after the sentencing guidelines were amended. Yet, as in the present case, the district court relied on USSG §1B1.11(b)(3) to apply the amended guidelines to all five counts.

Upon review, the Ninth Circuit found the application of §1B1.11(b)(3) to violate the Ex Post Facto Clause, since it caused defendant’s “sentence on earlier, completed counts to be increased by a later Guideline.” Id. at 546, 547 (emphasis added). The Ninth Circuit held: “[t]here are, in fact, five separate crimes; each carries its own punishment, even if the sentences are all run concurrently to the extent that they overlap.” Id. at 547. Although the Court acknowledged precedent for applying the one-book rule under certain circumstances, the Court nevertheless concluded: “we have applied more than one Guidelines manual to multiple counts involving offenses completed at different times, and we must do so in this case.” Id. at 546. The Court reasoned: 14

The harm caused by the earlier offenses can be counted in sentencing the later one . . . That does not mean that the punishment for the earlier offenses themselves can be increased, simply because the punishment for the later one can be. In fact, were the later count to fall at some time after sentencing, all that would remain would be the earlier sentences, which would be too long.

Id. at 547.

In conflict with the Third and Ninth Circuits, the remaining Circuits have concluded—as did the Fifth Circuit in this case—that sentences consistent with § 1B1.11(b)(3) do not violate the Ex Post Facto Clause. In reaching this opposing view, these Circuits emphasize that the Ex Post Facto Clause is concerned with “fair notice,” and conclude that the one-book and grouping rules are sufficient to provide defendants with notice that their sentences could be increased by revised guidelines. See United States v. Duane, 533 F.3d 441 (6th Cir. 2008) (holding that “a Guidelines revision, § 1B1.11(b)(3) itself, and the § 3D1.2(d) grouping rules provide a criminal fair warning that committing future similar crimes may subject him to increased penalties for similar prior offenses.”); United States v. Vivit, 214 F.3d 908 (7th Cir. 2000) (explaining that grouping rules “provide notice to 15 criminals that engaging in ongoing fraudulent behavior involving the same type of harm risks grouping of convictions, which because of the one-book rule, will all be sentenced according to the Guidelines in effect when the latest conduct occurred”); United States v. Bailey, 123 F.3d 1381, 1405 (11th Cir.1997) (“Analogous to a continuous criminal offense, like conspiracy, the one book rule provides notice that otherwise discrete criminal acts will be sentenced together under the Guidelines in effect at the time of the last of those acts.”). See also United States v. Cooper, 35 F.3d 1248, 1250 (8th Cir. 1994), cert. granted, judgment vacated, 514 U.S. 1094, 115 S. Ct. 1820, 131 L. Ed. 2d 742 (1995), and opinion reinstated, 63 F.3d 761 (8th Cir. 1995) (explaining that “it was not the amendments to the Sentencing Guidelines that disadvantaged [defendant], it was his election to continue his criminal activity after the . . . amendments became effective.”); United States v. Kumar, 617 F.3d 612, 628 (2d Cir. 2010) (“That the consequences of the [later] offense included the application of the post-amendment Guidelines to all offenses considered at the defendants’ sentencing was fully apparent prior to the commission of the crimes that triggered those consequences.”); United States v. Pagan- Ferrer, 736 F.3d 573, 599 (1st Cir. 2013) (concluding that defendant’s harsher sentence under the revised Guidelines “is properly viewed not as a consequence of an ex post facto violation, but as the direct result of his decision to engage in closely related offense conduct in 2008 [after the revisions were enacted]”); United States v. Lewis, 235 F.3d 215, 217 (4th Cir.2000) (finding that Defendant “had ample warning, when she committed the later acts of tax evasion, that those acts would cause her sentence for the earlier crime to be determined in accordance with the Guidelines Manual applicable to the later offenses . . . . ”). 16

Notably, the Tenth Circuit originally sided with the Third and Ninth Circuits in U.S. v. Sullivan, explicitly holding that the application of amended Sentencing Guidelines to counts that arose prior to the amendment violates the Ex Post Facto Clause. U.S. v. Sullivan 242 F.3d 1248, 1253–54 (10th Cir. 2001), opinion vacated and superseded on reh’g (10th Cir. 2001) 255 F.3d 1256. While the Court ultimately reversed its position on rehearing, in U.S. v. Sullivan, 255 F.3d 1256 (10th Cir. 2001), it was not without opposition. Justice Paulk Kelly Jr. wrote in his dissenting opinion:

Given that neither the facts nor the law have changed, I respectfully dissent from the opinion on rehearing. The initial panel opinion correctly held that application of post 1993 amendment guidelines to the two counts occurring before that amendment violates the ex post facto clause.

Id. at 1265 (citations omitted). Specifically, the dissenting justice took issue with the Majority’s finding that the revised Guidelines provided defendant with sufficient notice, stating:

The court determines that Mr. Sullivan had sufficient notice to avoid ex post facto concerns because he would be deemed to know that (1) his sentence would be determined based upon the guidelines in effect at sentencing . . . and (3) offenses stemming from similar conduct will be grouped . . . or considered relevant conduct . . . . Of course, the only notice this provides at the time of commission of the 17

first two, pre-amendment offenses is that the sentence could be determined in accordance with guideline provisions that may or may not be amended. Even if the notice is sufficient to inform a defendant that the last offense could determine the sentence, only a defendant with the prescience of a clairvoyant could anticipate an actual sentence based upon a yet-to-be amended guideline.

U.S. v. Sullivan, 255 F.3d 1256, 1265–66 (10th Cir. 2001) (internal citations omitted) (emphasis added). Independent of this dissent, the Tenth Circuit’s self-reversal in U.S. v. Sullivan illustrates the uncertainty surrounding this issue.

D. This Case Is the Proper Vehicle for the Court to Address This Critical Issue

The Circuit Courts acknowledge that there is a divide on this critical Ex Post Facto issue. “The question of whether the Ex Post Facto Clause is violated when a revised edition of the guidelines is applied to offenses that predate and postdate the revision is one that has divided the circuit courts of appeal.” United States v. Lewis, 235 F.3d 215, 217 (4th Cir.2000). Even Circuits that have found no Ex Post Facto violation have acknowledged some of the concerns raised by the Ninth Circuit: See United States v. Kumar, 617 F.3d 612, 631(2d Cir. 2010) (citation omitted) (“we recognize the practical—though unlikely—risk that applying the one-book rule to offenses that straddle a Guidelines revision could result in a defendant being sentenced for offenses according to the revised Guidelines only to see the second offense, which 18 enabled the application of the one-book rule, fall out after sentencing.”). This case provides a vital occasion for this Court to address the conflict among the Circuits and provide a resolution for sentencing criminal defendants without risking unconstitutional increased forms of punishment that contradict the Ex Post Facto Clause of the United States Constitution.

CONCLUSION

For all these reasons, this Court should grant the petition.

Respectfully submitted, Mark J. Geragos Counsel of Record Geragos & Geragos, APC 644 South Figueroa Street Los Angeles, California 90017 (213) 625-3900 [email protected]

Counsel for Petitioner APPENDIX 1a

APPENDIX — OPINIONAppendix OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, FILED OCTOBER 26, 2016

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15-20426

UNITED STATES OF AMERICA,

Plaintiff - Appellee

EDGAR SHAKBAZYAN,

Defendant - Appellant

October 26, 2016, Filed

Appeal from the United States District Court for the Southern District of Texas

Before REAVLEY, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

For the 39 days that it was open in 2009, a small Houston clinic accomplished a lot. It claimed to treat 429 Medicare “beneficiaries,” submitted approximately 9,300 claims to Medicare, and billed Medicare for $2.1 million. The clinic, however, was a sham. A vehicle full of “patients” 2a

Appendix would arrive at the clinic each day. The driver was paid to transport them, and the “beneficiaries” were paid to visit the clinic. After acquiring their Medicare information, the clinic would charge Medicare for thousands of procedures that were either unnecessary or never performed.

The Government prosecuted several individuals involved in the enterprise, including defendant-appellant Edgar Shakbazyan, the prime mover behind the scheme. Shakbazyan pled guilty to a multi-count indictment and, pursuant to sentence enhancements under the 2009 Sentencing Guidelines, was sentenced to 97 months of imprisonment.

In this appeal, Shakbazyan challenges his sentence, arguing, among other things, that the district court erred in applying the 2009 Guidelines, because only one of the counts involved criminal conduct that occurred after the effective date of the 2009 Guidelines. He asserts that the use of the 2009 Guidelines to enhance his sentence violates the Ex Post Facto Clause. Finding no merit to any of his claims, we AFFIRM.

I. BACKGROUND

A grand jury returned a superseding indictment that charged Shakbazyan with 21 counts related to Medicare fraud: (1) one count of conspiracy to commit health care fraud “involving 429 patients” under 18 U.S.C. § 1349 (Count 1); (2) 19 counts of health care fraud under 18 U.S.C. § 1347 (Counts 2 through 20); and (3) one count of conspiracy to violate the anti-kickback provisions of 3a

Appendix

18 U.S.C. § 371 (Count 21). Count 1 alleged an ongoing conspiracy between “in or about April[] 2009” and “in or about February[] 2010.” In particular, Count 1 alleged an unindicted co-conspirator wired $9,700 to another co-conspirator on February 19, 2010. By contrast, the remaining 20 counts covered conduct that occurred between June 2009 and August 2009. Thus, Count 1 alone extended to February 2010.

These time periods are important in Shakbazyan’s view because a definition of “victim” was amended in the 2009 Sentencing Guidelines, which became effective on November 1, 2009. Section 2B1.1(b)(2)(C) of both the 2008 and 2009 Guidelines provided a 6-level sentencing enhancement where the offense “involved 250 or more victims.” See U.S. Sentencing Guidelines Manual § 2B1.1(b)(2)(C) (U.S. Sentencing Comm’n 2008); U.S. Sentencing Guidelines Manual § 2B1.1(b)(2)(C) (U.S. Sentencing Comm’n 2009) [hereinafter U.S.S.G.]. But the definitions of “victim” in the commentary differed. The 2008 commentary defined victim as “(A) any person who sustained any part of the actual loss . . . ; or (B) any individual who sustained bodily injury as a result of the offense.” U.S.S.G. § 2B1.1 cmt. n.1 (2008). The 2009 commentary added a new note for purposes of the definition of “victim:” “[I]n a case involving means of identification[,] ‘victim’ means (i) any victim as defined in Application Note 1 [the 2008 definition];or (ii) any individual whose means of identification was used unlawfully or without authority.” U.S.S.G. § 2B1.1 cmt. n.4(E) (2009) (emphasis added). 4a

Appendix

The amendment features prominently in this case because the presentence report (PSR) based Shakbazyan’s recommended sentence on the 2009 Guidelines. Ordinarily, the version of the Guidelines in effect on the date of sentencing is the controlling version, see U.S.S.G. § 1B1.11(a)-(b), unless doing so would violate the Ex Post Facto Clause. See id. § 1B1.11(b)(1). Further, the Guidelines’ “one-book rule” forbids piecemeal application of the Guidelines, requiring instead that only one version of the Guidelines be used. See id. § 1B1.11(b)(2). The PSR stated that applying the current Guidelines would violate the Ex Post Facto Clause because a post-offense amendment enhanced health care fraud computations. Thus, the PSR used the 2009 Guidelines—the version in effect on the date the last offense of conviction (the Count 1 conspiracy offense) was committed. The PSR, therefore, used the 2009 definition of “victim” and recommended a 6-level enhancement on the understanding that the fraud involved 250 or more “victims”—429 Medicare beneficiaries whose identifying information was used “unlawfully.” With that 6-level enhancement, Shakbazyan’s total offense level was 30 with a criminal history category of I, and his range of imprisonment was 97 to 121 months. Without the 6-level enhancement, his range of imprisonment would have been 51 to 63 months.

Shakbazyan objected to the 6-level enhancement on the ground that using the 2009 definition of “victim” to enhance his sentence on Counts 2 through 21 violated the Ex Post Facto Clause. The district court overruled this objection, among others, and sentenced Shakbazyan to 97 months of imprisonment. Shakbazyan timely appealed. 5a

Appendix

II. ANALYSIS

A. Standard of Review

“We review a district court’s sentencing decision for abuse of discretion.” United States v. Pringler, 765 F.3d 445, 451 (5th Cir. 2014). However, we “review[] the district court’s interpretation and application of the Sentencing Guidelines de novo.” Id. (italics added). And, “when faced with a preserved constitutional challenge to the Guidelines’ application, our review is de novo.” United States v. Preciado-Delacruz, 801 F.3d 508, 511 (5th Cir. 2015).

B. Ex Post Facto Clause

Shakbazyan’s principal argument is that using the 2009 Guidelines definition of “victim” to enhance his sentence violates the Ex Post Facto Clause. That argument is foreclosed by our precedent.

The provision that “[n]o . . . ex post facto Law shall be passed,” U.S. Const. art. I, § 9, cl. 3, includes “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Peugh v. United States, 133 S. Ct. 2072, 2077- 78, 186 L. Ed. 2d 84 (2013) (quoting Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 390, 1 L. Ed. 648 (1798)). The motivating concern in this category of ex post facto violations “is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when 6a

Appendix the crime was consummated.” Weaver v. Graham, 450 U.S. 24, 30, 101 S. Ct. 960, 965, 67 L. Ed. 2d 17 (1981) .

Shakbazyan concedes, as he did below, that the 2009 definition of “victim” “can technically be applied to Count 1 which alleges conduct that occurred post November of 2009, in February of 2010.” He does not challenge the Guidelines’ one-book rule that requires one version of the Guidelines to be applied to all grouped counts, and he does not claim that the 21 counts were improperly grouped together. Nor does he allege that the post-November 1, 2009 conspiratorial conduct cannot be imputed to him.1 His complaint, however, is that the “expanded definition of victim was not in effect during the [periods covered by] Counts 2 through 21 of the Indictment.” In his view, using the 2009 definition of “victim” to enhance his sentence constitutes “an increased retroactive punishment” and thus an Ex Post Facto Clause violation.

1. Cf. United States v. Olis, 429 F.3d 540, 545 (5th Cir. 2005) (“This court has held that conspiracy ‘is a continuing offense’ and that ‘[s]o long as there is evidence that the conspiracy continued after the effective date of the [amendments to the] guidelines, the Ex Post Facto Clause is not violated.’ Moreover, unless a conspirator effectively withdraws from the conspiracy, he is to be sentenced under the amendments to the guidelines, even if he did not commit an act in furtherance of the conspiracy after the date of the new guidelines, or did not know of acts committed by other co-conspirators after the date of the new guidelines, where it was foreseeable that the conspiracy would continue past the effective date of the amendments.” (citation omitted)). 7a

Appendix

This court, along with eight other circuits,2 has previously rejected Shakbazyan’s argument. In United States v. Kimler, 167 F.3d 889 (5th Cir. 1999), the court held that “where a sentencing court groups offenses committed before a change in the sentencing guidelines with offenses after the amendment, and then applies the amended guideline in determining a defendant’s appropriate sentence, the Ex Post Facto Clause is not implicated.” Id. at 893 (italics added). Given the Guidelines’ one-book rule and grouping rules, “a defendant has notice that the version of the sentencing guidelines in effect at the time he committed the last of a series of grouped offenses will apply to the entire group.” Id. at 894-95. That notice eliminates any Ex Post Facto Clause concerns that may have otherwise existed. Therefore, a defendant who decides to “continue his illegal activities . . . after the revisions in the sentencing guidelines” does so at his own peril because “that decision allow[s] the sentencing court to determine his appropriate sentence with reference to the guidelines in effect when the last criminal act in the grouped series was committed without running afoul of the Constitution.” Id. at 893.

Kimler plainly forecloses Shakbazyan’s Ex Post Facto Clause claim. The conspiracy charged in Count 1 continued well after November 1, 2009. During that

2. See, e.g., United States v. Pagán-Ferrer, 736 F.3d 573, 598 (1st Cir. 2013) (explaining that its decision on this point was “consistent with the findings of an overwhelming majority of our sister circuits.” (citing cases from the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits)); United States v. Kumar, 617 F.3d 612, 626-27 (2d Cir. 2010) (similarly citing cases). 8a

Appendix period, the Guidelines gave Shakbazyan adequate notice that his pre-November 1, 2009 offenses would be grouped with the Count 1 conspiracy offense, and therefore that the 2009 Guidelines would apply. Indeed, “[i]t was [Shakbazyan’s] decision to continue his illegal activities related to his . . . [conspiracy] offense[] after the revisions in the sentencing guidelines, and that decision allowed the sentencing court to determine his appropriate sentence with reference to the guidelines in effect when the last criminal act in the grouped series was committed without running afoul of the Constitution.” Kimler, 167 F.3d at 893.

Shakbazyan fails to cite Kimler, but he contends that Peugh v. United States supports his Ex Post Facto Clause claim. It does not. Peugh found an Ex Post Facto Clause violation where “a defendant [was] sentenced under Guidelines promulgated after he committed his criminal acts and the new version provide[d] a higher applicable Guidelines sentencing range than the version in place at the time of the offense.” Peugh, 133 S. Ct. at 2078. But there are clear factual and legal distinctions between Peugh and this case. On the facts, the defendant in Peugh committed all of his alleged crimes in 1999 and 2000, before the promulgation of the 2009 Guidelines under which he was sentenced. See id. at 2078-79. In contrast, Shakbazyan concedes that one of the crimes to which he pled guilty extended past the effective date of the 2009 Guidelines. Additionally, as just explained, this case, unlike Peugh, does not implicate the Ex Post Facto Clause’s concern with “the lack of fair notice . . . when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 9a

Appendix

450 U.S. at 30, 101 S. Ct. at 965. Peugh had no notice of Guidelines enhancements that would be promulgated a decade after he committed his crimes, but Shakbazyan was on notice of the Guidelines’ one-book and grouping rules that would apply one version of the Guidelines to his pre- and post-amendment criminal conduct. Peugh does not carry the day for Shakbazyan. No Ex Post Facto Clause violation occurred when the district court applied the 2009 Guidelines to Shakbazyan’s sentence.

C. Miscellaneous Arguments

Shakbazyan raises a number of additional arguments, each of which we reject. First, Shakbazyan claims that even if the 2009 Guidelines apply to his sentence, the Medicare beneficiaries were not “victims” within the meaning of the 2009 definition but were more like co- conspirators because “they were either paid to attend the Barson Clinic or they suffered no harm.”

Shakbazyan has waived this argument. At the sentencing hearing, the district court asked Shakbazyan’s attorney whether the Medicare beneficiaries fall within the 2009 definition of “victim,” and the attorney answered affirmatively:

THE COURT: But the 2009 guideline which governs the conspiracy count for sure defines “victims” as these patients whose Medicare benefits were used.

MR. GERAGOS: Correct. 10a

Appendix

This court does not consider arguments deliberately waived in the trial court. See, e.g., United States v. Puckett, 505 F.3d 377, 383 n.1 (5th Cir. 2007), aff’d, 556 U.S. 129, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009).

Shakbazyan next asserts that, in any event, the indictment charged him only “with defrauding eight total victims”—Medicare and individuals specifically named in the indictment—which is “below the threshold need for any victim enhancement to apply.” The superseding indictment, to which he pled guilty, expressly mentioned 429 patients’ claims as being fraudulently charged. And it is hornbook procedure that “[t]he sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence.” See, e.g., United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). This contention is meritless.

Also without merit is Shakbazyan’s conclusional assertion that the trial court’s Judgment and Commitment Order is facially deficient because it states a sentence below 24 months was imposed and consequently did not include a written statement of reasons for the sentence imposed. This complaint apparently refers to the “Statement of Reasons” form, which did erroneously categorize Shakbazyan’s sentence as “within an advisory guideline range that is not greater than 24 months.” Because of the error, the form does not contain the required written statement identifying the district court’s reasons for the sentence. The error is harmless, and clerical in nature. Shakbazyan does not and cannot claim his substantial rights were affected. The transcript evinces the district court’s thorough explanation of its 11a

Appendix reasons for imposing Shakbazyan’s 97-month, bottom of the applicable sentencing range term of imprisonment. Moreover, the Statement of Reasons form is intended “to serve a record-keeping function” and not to provide “a procedural safeguard for any particular defendant.” See United States v. Pillault, 783 F.3d 282, 292 n.2 (5th Cir. 2015) (quoting United States v. Denny, 653 F.3d 415, 422 (6th Cir. 2011) (quoting United States v. Ray, 273 F. Supp. 2d 1160, 1164 (D. Mont. 2003))).

For these reasons, the district court’s sentence is AFFIRMED.