                                                                           FILED
                           NOT FOR PUBLICATION                             JUN 19 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50516

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01343-VAP-2

  v.
                                                 MEMORANDUM*
HAMLET SARDARIANI,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                       Argued and Submitted January 7, 2014
                               Pasadena, California

Before: REINHARDT and CLIFTON, Circuit Judges, and DORSEY, District
Judge.**

       Defendant Hamlet Sardariani appeals his sentence of 78 months imposed for

a guilty plea conviction for conspiring to commit wire fraud, aggravated identity



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jennifer A. Dorsey, District Judge for the District of
Nevada, sitting by designation.
theft, and transactional money laundering (18 U.S.C. § 371) and tax evasion (26

U.S.C. § 7201). We affirm.

      The district court was correct in applying an enhancement for use of an

authentication feature under U.S.S.G. § 2B1.1(b)(11)(A)(ii) (formerly

§ 2B1.1(b)(10)(B)(ii)). See United States v. Henrik Sardariani, No. 12-50418, —

F.3d — (__________, 2014) (forged notary seal used here qualified as an

“authentication feature” under 18 U.S.C. § 1028).

      Defendant contends that his false assurance of payment to one of the victims

did not constitute “especially complex” conduct as required for an enhancement for

sophisticated means under U.S.S.G. § 2B1.1(b)(10)(C).1 Defendant’s claim fails

because the relevant conduct was the entire scheme as a whole, not Defendant’s

individual contribution (U.S.S.G. § 1B1.3 (a)(1)(B) (a conspirator may be held

responsible for “all reasonably foreseeable acts and omissions ... in furtherance of

the jointly undertaken criminal activity”)), and the court found that the scheme as a

whole was sophisticated, a finding which was not clearly erroneous.

      Defendant also argues that declining to apply a minor role reduction

rendered the sentence substantively unreasonable given that his conduct was not



      1
        In the 2008 edition of the Sentencing Guidelines, under which Defendant
was sentenced, this provision is found at § 2B1.1(9)(C).

                                          2
integral to the offense. Defendant is mistaken. Whether or not his conduct was

“integral” is irrelevant. In order to qualify for a minor role reduction, Defendant

must prove that he was “substantially less culpable than the average participant.”

U.S.S.G. § 3B1.2, comment n.3(A). Defendant failed to carry this burden of proof.

      Defendant may have proven that he was less culpable than his brother

Henrik, but “merely being less culpable than one’s co-participants does not

automatically result in minor participant status.” United States v. Cantrell, 433

F.3d 1269, 1293 (9th Cir. 2006). There were other participants who played smaller

roles in or benefitted less from the scheme. The presentence report mentions an

acquaintance who introduced Henrik to one of the victims. Tenney received

significantly less money than did Hamlet. And even though Woods played a large

part in the scheme, there is no evidence that his role was significantly larger than

Hamlet’s. It is not clear from the record that Hamlet is significantly less culpable

than the average participant. Therefore the district court did not clearly err in

finding that he does not qualify for a minor role reduction.

      According to Defendant, the court failed to give notice of its intent to depart

upward in imposing consecutive sentences. See Fed. R. Crim. P. 32(h). Even if it

was a departure for the court to impose consecutive sentences in this case (an issue

we decline to decide), Defendant received notice. Notice is required only if the


                                           3
court departs “on a ground not identified for departure either in the presentence

report or in a party’s prehearing submission.” Fed. R. Crim. P. 32(h). The

probation officer’s letter recommended consecutive sentences. That letter

constituted adequate notice.

      Defendant claims the district court failed to adequately address all of the

arguments he offered to the court for reducing his sentence based on § 3553(a)

factors. The arguments Defendant contends went unaddressed were either

frivolous or taken into account through the calculation of the guideline range. See

United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (a court is only required

to explain why it accepts or rejects a party’s position “when [the] party raises a

specific nonfrivolous argument tethered to a relevant § 3553(a) factor”).

      Defendant argues that his sentence was substantively unreasonable in light

of the mitigating factors argued in his sentencing memorandum. In reviewing the

substantive reasonableness of a sentence, due deference is given “to the district

court’s decision that the § 3553(a) factors, on a whole, justify the [sentence as

imposed].” United States v. Whitehead, 532 F.3d 991, 993 (9th Cir. 2008). The

district court listened to Defendant’s arguments but determined that the amount of

loss combined with the complexity of the offense weighed in favor of a longer




                                           4
custodial sentence. It also imposed a sentence within the guideline range. We

conclude that the sentence was not substantively unreasonable.

      AFFIRMED.




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