United States of America v. Artak Ovsepian

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARTAK OVSEPIAN,
Defendant-Appellant.
No. 17-50231
D.C. No.
2:11-CR-1075-SJO-6
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH WAYNE JOHNSON,
Defendant-Appellant.
No. 18-50026
D.C. No.
2:11-CR-1075-SJO-3
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted August 10, 2018
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and EZRA,** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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In these consolidated appeals, Appellants Artak Ovsepian (“Ovsepian”) and
Kenneth Johnson (“Johnson”) raise two principal arguments: first, Ovsepian and
Johnson argue that their consecutive sentences for aggravated identity theft under
18 U.S.C. § 1028A bar an enhancement under U.S.S.G. § 2B1.1(b)(11)(A)(ii) as
impermissible double-counting because the sentences are based on the unlawful
use of a means of identification, see U.S.S.G. § 2B1.6 cmt. n.2; and second,
Ovsepian contends that his 15-year sentence is substantively and procedurally
unreasonable under 18 U.S.C. § 3553(a) because it created an unwarranted
sentence disparity with Johnson. Johnson does not challenge the reasonableness of
his sentence.
I. Enhancement Under U.S.S.G. § 2B1.1(b)(11)(A)(ii). We review the
district court’s interpretation of the Guidelines de novo, the district court’s factual
findings for clear error, and the district court’s application of the Sentencing
Guidelines to the facts of the case for abuse of discretion. United States v.
Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017).
Despite Appellants’ argument to the contrary, under the facts in this case,
Application Note 2 to section 2B1.6 did not bar the two-level
authentication-feature enhancement under U.S.S.G. § 2B1.1(b)(11)(A)(ii).
Accordingly, the district court did not err in applying the two-level enhancement
** The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

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under U.S.S.G. § 2B1.1(b)(11)(A)(ii).
II. Reasonableness of Sentence. In his last issue on appeal, Ovsepian
argues that the district court procedurally erred because it did not state with
sufficient specificity its reason for imposing a significantly disparate sentence from
that of his co-defendant Johnson. Ovsepian also contends that his sentence is
substantively unreasonable because of the significant disparity between his and
Johnson’s sentences.
Because Ovsepian failed to raise his procedural argument before the district
court, we review the procedural reasonableness of his sentence for plain error.
United States v. Rangel, 697 F.3d 795, 800–01 (9th Cir. 2012) (“Where a
procedural sentencing error is raised for the first time on appeal, it is reviewed for
plain error.”). We review the substantive reasonableness of Ovsepian’s sentence
for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
Here, the record contains ample reasons for the disparity in sentences. The
district court explained that it imposed a harsher sentence on Ovsepian because he
and Johnson had engaged in different criminal conduct, all of which had occurred
under Ovsepian’s direction and leadership. As a result of his leadership role,
Ovsepian received an enhancement, whereas Johnson received no such
enhancement. Moreover, the district court explained that, unlike Johnson,
Ovsepian acted as one of the managers of the scheme and participated in numerous

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aspects of the conspiracy. The district court also cited the fact that Ovsepian
received a greater monetary benefit from the scheme.
The record reflects that the district court considered and rejected Ovsepian’s
arguments regarding the sentencing disparity and gave thoughtful attention to the
criteria set forth in § 3553(a), including the need to avoid unwarranted sentencing
disparities, before imposing the sentence. See 18 U.S.C. § 3553(a)(6). After
completing this review, the district court imposed a sentence that was below the
Guidelines range. Based on the record, we conclude that there was no procedural
error and that the sentence is substantively reasonable.
For the reasons stated, we AFFIRM: (1) the district court’s decision to
impose a two-level enhancement under U.S.S.G. § 2B1.1(b)(11)(A)(ii); and
(2) Appellant Ovsepian’s sentence.
AFFIRMED.

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