                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 24 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50568

              Plaintiff - Appellee,              D.C. No. 8:09-cr-00248-DOC-6

 v.
                                                 MEMORANDUM*
KAREN MARKOSIAN, AKA Garen,
AKA Kar,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50571

              Plaintiff - Appellee,              D.C. No. 8:09-cr-00248-DOC-3

 v.

ANGUS BROWN, AKA Cide, AKA Cy,
AKA Homicide,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50573

              Plaintiff - Appellee,              D.C. No. 8:09-cr-00248-DOC-2


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.

ARMAN SHAROPETROSIAN, AKA
Dzi, AKA Horse, AKA Arman Petosian,

           Defendant - Appellant.



UNITED STATES OF AMERICA,                   No. 12-50574

           Plaintiff - Appellee,            D.C. No. 8:09-cr-00248-DOC-10

v.

ARTUSH MARGARYAN, AKA Artush
Vaganovich Margaryan, AKA Arush V.
Margaryan, AKA Arush Vaganovic
Margaryan,

           Defendant - Appellant.



UNITED STATES OF AMERICA,                   No. 13-50092

           Plaintiff - Appellee,            D.C. No. 8:09-cr-00248-DOC-11

v.

HOVHANNES DILBOYAN, AKA
Andrankik Harutyunyan,

           Defendant - Appellant.


                Appeal from the United States District Court
                   for the Central District of California
                 David O. Carter, District Judge, Presiding
                        Argued and Submitted July 6, 2015
                              Pasadena, California

Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.

      In these consolidated appeals, five defendants (Brown, Sharopetrosian,

Markosian, Margaryan, and Dilboyan) appeal various aspects of their convictions

and sentences. We affirm.

      Dilboyan argues that his guilty plea should be vacated because it was based

on evidence seized during a pretextual traffic stop. However, by pleading guilty

without the benefit of a plea agreement, Dilboyan waived this claim. United States

v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005). Even if the claim weren’t

waived, it fails, as Dilboyan concedes that the officers had probable cause to stop

the car for a traffic violation. See United States v. Whren, 517 U.S. 806 (1996).

      Margaryan claims that the district court violated his right to a speedy trial

under both the Speedy Trial Act and the Sixth Amendment. Margaryan waived his

Speedy Trial Act claim, as he failed to move for dismissal on Speedy Trial Act

grounds. See United States v. Lam, 251 F.3d 852, 854, 861 n.11 (9th Cir. 2001).

His Sixth Amendment claim fails because he has not shown specific prejudice,

which is required when, as here, the government acts with reasonable diligence.

See Doggett v. United States, 505 U.S. 647, 654 (1992).


                                          3
      Nor did the district court err by failing to sever Margaryan’s trial. The

government introduced “substantially overlapping evidence” of all of the

codefendants’ involvement in a single bank fraud conspiracy scheme, which is a

particularly appropriate reason for joinder under Federal Rule of Criminal

Procedure 8(b). United States v. Vasquez-Velasco, 15 F.3d 833, 844 (9th Cir.

1994). Margaryan did not show that the district court’s limiting instruction was

insufficient to cure any prejudice he may have suffered. See United States v.

Johnson, 297 F.3d 845, 855 (9th Cir. 2002).

      The district court did not err in admitting evidence of Margaryan’s

uncharged conduct. Margaryan’s depositing of the $79,000 forged check and

placement of skimmers and micro-cameras on ATMs were acts that “comprised the

conspiracy” and “occurred within the temporal scope of the conspiracy,” and so are

considered “inextricably intertwined.” United States v. Montgomery, 384 F.3d

1050, 1062 (9th Cir. 2004). Under Federal Rule of Evidence 404(b), these acts

were admissible as probative of Margaryan’s intent to participate in the conspiracy.

See United States v. Ayers, 924 F.2d 1468, 1472–73 (9th Cir. 1991).

      Brown, Sharopetrosian, Markosian, and Margaryan challenge the district

court’s calculation of intended loss. In a conspiracy case, the sentencing court

takes into account “all reasonably foreseeable acts and omissions of others in


                                          4
furtherance of the jointly undertaken criminal activity, that occurred during the

commission of the offense of conviction” in determining its loss calculation,

U.S.S.G. § 1B1.3(a)(1)(B), which need only be “reasonable” and is “entitled to

appropriate deference,” id. § 2B1.1 cmt. n.3(C). Unlike the court in United States

v. Ladum, 141 F.3d 1328, 1345-47 (9th Cir. 1998), upon which the defendants rely,

the district court made specific factual findings that these four defendants were

aware of the overall scheme and that the full extent of the conspiracy’s losses was

reasonably foreseeable to them. The court’s findings were supported by record

evidence regarding the defendants’ involvement in the conspiracy. Brown

organized the conspiracy from prison, directing the activities of outside

participants such as his girlfriend Faye Bell and his key deputy, Kelly Benson.

Sharopetrosian was the other primary organizer, directing the activities of outside

participants such as his wife, Kristine Ogandzhanyan, and his business partner,

Markosian. Brown and Sharopetrosian, who were in prison together, spoke on

contraband cell phones in addition to in-person conversations. Bell and

Ogandzhanyan served as the primary link on the outside between Brown’s

associates and Sharopetrosian’s associates. The Brown crew took primary

responsibility for ordering and picking up legitimate checks that were fraudulently

ordered on the victims’ accounts. They would deliver the checks as well as


                                          5
documents containing legitimate signatures to Bell, who would transfer them to the

Sharopetrosian crew via Ogandzhanyan. The Sharopetrosian crew would then take

over, forging the checks and depositing them into the money laundering accounts.

Markosian managed the activities of other, lower-level conspiracy members,

including Margaryan. Margaryan was caught in possession of forged checks,

access materials for money laundering accounts, and stolen debit card numbers and

identifying information. Further, as to Sharopetrosian, the district court made

findings that he specifically intended to maximize the loss caused by his

coconspirators. See United States v. Blitz, 151 F.3d 1002, 1009–10 (9th Cir. 1998);

cf. United States v. Manatau, 647 F.3d 1048, 1050 (10th Cir. 2011).

      Brown, Sharopetrosian, Markosian, and Margaryan all argue that the district

court erred by using the late-2009 version of the sentencing guidelines manual

rather than the earlier version, which defined “victim” only as someone who had

sustained actual loss. The relevant guidelines change raises ex post facto issues

because it (1) makes a substantive change rather than merely clarifying an existing

rule and (2) makes the defendants’ punishment more onerous that it would have

been under the earlier guidelines. United States v. Johns, 5 F.3d 1267, 1269, 1272

(9th Cir. 1993). However, the distinction between the manuals is irrelevant

because the court reasonably found that each of the defendants was involved in the


                                          6
conspiracy after mid-2009. Nor did the court err in its number-of-victims

calculations, as it reasonably found that the defendants all had knowledge of the

full scope of the conspiracy’s operations. See United States v. Treadwell, 593 F.3d

990, 1002 (9th Cir. 2010) (explaining that the court should “identify the loss that

fell within the scope of the defendant’s agreement with his co-conspirators and was

reasonably foreseeable to the defendant”).

      Brown and Sharopetrosian both challenge the district court’s imposition of

the vulnerable victim enhancement. However, there was ample evidence in the

record to show that Brown intentionally targeted elderly victims, and that the

defendants knew or should have known that those victims were vulnerable to the

scheme because they would be less likely to use online banking or notice changes

made to their accounts. See United States v. Mendoza, 262 F.3d 957, 960–61 (9th

Cir. 2001); United States v. Luca, 183 F.3d 1019, 1025 (9th Cir. 1999).

Sharopetrosian conceded in his sentencing memorandum that the enhancement

should apply. His claim is thus waived, as he placed “evidence in the record that

[he] was aware of . . . [a] relinquished or abandoned right.” United States v. Perez,

116 F.3d 840, 845 (9th Cir. 1997) (en banc).

      Brown and Markosian challenge the district court’s imposition of the

leadership enhancement under U.S.S.G. § 3B1.1(c). However, there was evidence


                                          7
in the record that would support the conclusion that they exercised the necessary

level of control. See id. § 3B1.1, cmt. n.4. The government introduced evidence,

via recorded telephone call, that Markosian sent Margaryan and Dilboyan to

deposit a fraudulent check, and that Markosian agreed to recruit someone else to

deposit checks after Margaryan and Dilboyan were arrested. In the same call,

Sharopetrosian asked Markosian for reassurance that Margaryan and Dilboyan

were “normal” participants, suggesting that Sharopetrosian was not familiar with

the different runners Markosian used. This is sufficient evidence to support the

district court’s conclusion that Markosian had independent authority to direct the

actions of Margaryan and Dilboyan, which is adequate foundation for the

enhancement. See United States v. Whitney, 673 F.3d 965, 975 & n.6 (9th Cir.

2012).

      The evidence was even stronger as to Brown. In his plea colloquy, the

factual basis offered by the government, which Brown accepted, included the

following evidence that demonstrated control over other coconspirators: while

Brown was in prison, the conspiracy was a multi-level operation that used

“runners” to cash checks and deliver the proceeds to other, higher-level members

of the conspiracy; after contacting Chase Bank to determine the value of one

victim’s account, Brown directed co-conspirator Kelly Benson to look up the


                                          8
victim’s address so that they could order checks on the victim’s account, and on

another occasion, Brown gave Benson another victim’s Social Security number

and “directed him to obtain their date of birth” to access the account. Benson

testified that Cox and Brown had recruited him and instructed him regarding

management of outside co-conspirators, including the runners. These facts

establish that the district court’s conclusion that Brown held a leadership position

in the conspiracy was not clearly erroneous. See United States v. Rivera, 527 F.3d

891, 908–09 (9th Cir. 2008).

      Markosian and Margaryan challenge the district court’s decision to apply the

sophisticated means enhancement under U.S.S.G. § 2B1.1. The district court

found that both defendants had full knowledge of conspiracy operations including

the use of money laundering accounts used to conceal the identities of the

conspirators; the use of prepaid phones registered in false names; the use of

skimmers and micro-cameras to collect victims’ bank account information from

ATMs; and the use of strategies to bypass bank security protocols and

manipulation of account information to avoid contact between the bank and the

account holder. These activities are clear examples of “especially complex or

especially intricate offense conduct pertaining to the execution or concealment of

an offense.” U.S.S.G. § 2B1.1, cmt. n.8(B).


                                          9
      Markosian also argues that the court erred by refusing to grant him a

sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 because

he submitted a letter to the court at sentencing in which he accepted responsibility

for his crimes. However, the court acted within its discretion in denying the

reduction, given that Markosian denied facts related to intent—an essential element

of the fraud crime—and did not manifest any evidence of contrition until after he

was convicted. See United States v. Fleming, 215 F.3d 930, 940 (9th Cir. 2000).

      Margaryan argues that the court erred by failing to grant him a minor role

reduction under U.S.S.G. § 3B1.2. The court characterized Margaryan as having a

“substantial part” in the conspiracy, and rejected as “ridiculous” his claim that he

had no knowledge of the content of the thumb drive containing victims’ identifying

information, thereby communicating its finding that Margaryan had a substantial

role in the conspiracy that was incompatible with a minor role adjustment. See

United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990); cf. United States v.

Gunning, 339 F.3d 948, 949 (9th Cir. 2003). The court did not clearly err in

determining that Margaryan was not a minor participant in the conspiracy. See

United States v. Rodriguez-Castro, 641 F.3d 1189, 1192-93 (9th Cir. 2011).

      Finally, we conclude that Brown’s sentence is substantively reasonable. A

within-guidelines sentence will be reversed only if the court’s decision was


                                          10
“‘illogical, implausible, or without support in inferences that may be drawn from

the facts in the record.’” United States v. Treadwell, 593 F.3d 990, 1011 (9th Cir.

2010) (quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en

banc)). Brown received a below-guidelines sentence despite the court’s findings

that he was one of the leaders of a high-level, complex conspiracy that defrauded

banks and account holders out of millions of dollars.

      AFFIRMED.




                                         11
