United States of America v. Karapet Damaryan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KARAPET DAMARYAN,
Defendant-Appellant.
No. 17-10486
D.C. No.
2:13-cr-00274-GEB-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted February 8, 2019
San Francisco, California
Before: PAEZ and BERZON, Circuit Judges, and FEINERMAN,** District Judge.
Karapet Damaryan appeals the district court’s denial of his motion to
withdraw his guilty plea. We review the denial for abuse of discretion. United
States v. Yamashiro, 788 F.3d 1231, 1236 (9th Cir. 2015). We have jurisdiction
under 28 U.S.C. § 1291 and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
MAR 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Federal Rule of Criminal Procedure 11 “requires a court to address a
defendant personally in open court and inform the defendant of, and determine the
defendant understands, the numerous consequences of pleading guilty.” United
States v. Toothman, 137 F.3d 1393, 1399 (9th Cir. 1998). Specifically, the court
must, inter alia, “inform the defendant of, and determine the defendant
understands . . . any mandatory minimum penalty.” Fed. R. Crim. P. 11(b)(1).
During the plea colloquy, the district court incorrectly informed Damaryan
that as a result of pleading guilty to Count Two, which alleged a violation of 18
U.S.C. § 1028A, he “could be placed in prison up to two years.” This advisement
was incorrect as a violation of 18 U.S.C. § 1028A requires a two-year mandatory
sentence. The district court attempted to clarify the mandatory minimum sentence,
but the court’s explanation was not entirely clear. This somewhat unclear
advisement, however, does not require setting aside Damaryan’s guilty plea, as he
was clearly advised of the mandatory two-year sentence at two earlier
arraignments. In light of the prior oral advisements, the error was harmless, and
the district court did not abuse its discretion in denying Damaryan’s motion to
withdraw his guilty plea. See United States v. Alber, 56 F.3d 1106, 1109-1110 (9th
Cir. 1995).
Damaryan’s other arguments regarding his previous counsel, his lack of any
criminal history, his limited English language abilities, the district court’s limited

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inquiry into whether he was taking medication, and his codefendant’s sentence are
not persuasive. We decline to consider his ineffective assistance of counsel claim
on direct appeal as the record is not sufficiently developed to consider the claim.
See United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000).
AFFIRMED.

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