                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 05 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50258

              Plaintiff - Appellee,              D.C. No. 2:14-cr-00249-ODW-1

 v.
                                                 MEMORANDUM*
HAKOP GAMBARYAN,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Otis D. Wright, II, District Judge, Presiding

                        Argued and Submitted June 9, 2016
                              Pasadena, California

Before: REINHARDT and WARDLAW, Circuit Judges, and KORMAN,** District
Judge.

      Hakop Gambaryan (“Gambaryan”) was convicted after trial of billing Medicare

for power wheelchairs he provided to Medicare beneficiaries for whom the devices

were not medically necessary, in violation of 18 U.S.C. § 1347(a). At sentencing, the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
district judge found that over $2.5 million of Gambaryan’s total Medicare billings

were fraudulent. The application of the then-applicable Sentencing Guidelines for

cases in which the intended loss exceeds $2.5 million, U.S.S.G. § 2B1.1(b)(1)(J)

(2014), along with an additional enhancement we discuss below, id. § 2B1.1(b)(7),

resulted in a Guidelines range of sixty-three to seventy-eight months.

      The district judge imposed a sentence of eighty-four months, after considering

the factors set out in 18 U.S.C. § 3553(a) and “evaluat[ing] the various kinds of

sentences available as well as the Guidelines sentencing range.” While Gambaryan

does not challenge the substantive reasonableness of the sentence, he does argue that

the district judge erred in calculating the appropriate Guidelines range. Because the

Guidelines must be correctly calculated—if they are to be taken into account, as they

must be, in determining an appropriate sentence under § 3553(a)—and because we

hold that the district judge did not do so, we vacate the sentence and remand for

resentencing on an open record.

      1. Gambaryan argues that the enhancement was not supported by clear and

convincing evidence of the amount of loss. Considering only the loss relating to the

instances of fraud for which Gambaryan was convicted would have led to a Guidelines

range of six to twelve months. See U.S.S.G. § 2B1.1(b)(1)(C) (2014). The disputed

sentencing enhancements increased this range to sixty-three to seventy-eight months.


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See id. § 2B1.1(b)(1)(J). We have held that “facts found in support of Guidelines

enhancements that turn out to have a disproportionate impact on the ultimate sentence

imposed [must] be established by clear and convincing evidence,” rather than the

otherwise applicable preponderance of the evidence standard. United States v. Staten,

466 F.3d 708, 720 (9th Cir. 2006). Indeed, “where a severe sentencing enhancement

is imposed on the basis of uncharged or acquitted conduct, due process may require

clear and convincing evidence of that conduct.” United States v. Treadwell, 593 F.3d

990, 1000 (9th Cir. 2010). Based on this consideration and others applicable in these

circumstances, see id., we hold that the loss enhancement was required to rest on clear

and convincing evidence.

      This standard has not been met. First, although Gambaryan billed Medicare for

$3,370,200, only $2,541,805 of those claims were for power wheelchairs.

Nevertheless, the record is unclear as to the manner in which the district judge arrived

at the loss calculation of over $2.5 million. Indeed, the PSR calculated the loss as

between $1 million and $2.5 million and, when granting bail pending appeal, the

district judge observed that he was understandably troubled by the fact that “we could

[not] quantify how many of the total claims submitted were fraudulent.” There was

an exceedingly narrow margin dividing a sentencing enhancement for intended loss

exceeding $1 million and the enhancement for loss exceeding $2.5 million. The


                                           3
$41,805 difference works out to be about eight or nine wheelchairs out of

approximately 300, or about three percent of the power wheelchair claims.

      More significantly, the evidence at trial was not sufficiently clear and

convincing to justify the assumption that nearly the entire amount billed for power

wheelchairs was fraudulent. To cite just one of a number of examples, of the 123

doctors whose prescriptions for power wheelchairs Gambaryan filled, only thirty-four

were listed in a Medicare database as having been compromised—meaning that they

were “identified as . . . fraudulent providers . . . [for] billing abusively or having

reported that their [National Provider Identification] numbers were stolen.” While this

evidence may have been sufficient to support the inference that all of the prescriptions

written by these thirty-four compromised doctors were fraudulent, there was

concededly no evidence that any of the other eighty-nine prescribing doctors were

compromised. Significantly, even as to the compromised doctors, the record does not

reveal the number of power wheelchair claims that were predicated on prescriptions

written by these doctors.

      Nor does our holding in United States v. Popov, 742 F.3d 911 (9th Cir. 2014),

compel a contrary result. There, it was assumed that all of the claims submitted to

Medicare were fraudulent. The defendants argued, however, that, “[b]ecause it is well

known that Medicare routinely pays much less than the billed amount, . . . the district


                                           4
court should have calculated the intended loss based on the amounts actually paid by

Medicare.” Id. at 915. We rejected this argument for reasons upon which we need not

dwell here. Id. at 915–16. Unlike Popov, in this case the threshold issue is whether

all of the claims submitted to Medicare for power wheelchairs were fraudulent, and

not whether, if they were fraudulent, the intended loss was the amount Medicare paid.

      In sum, we have held that a district judge “need not make [his or her] loss

calculation with absolute precision [and] need only make a reasonable estimate of the

loss based on the available information.” United States v. Zolp, 479 F.3d 715, 719

(9th Cir. 2007) (citing U.S.S.G. § 2B1.1 cmt. n.3(C)). Nevertheless, where the

difference between a sentencing enhancement rests on $41,805 out of $2,541,805 in

total claims (or approximately eight or nine wheelchairs), and where the available

information in the record is insufficient to establish that all (or almost all) the claims

filed were fraudulent, we are unable to conclude that the estimated loss was

reasonable. We remand on an open record so that, if the Department of Justice wishes

to press for the higher enhancement based on a loss of over $2.5 million—rather than

an enhancement based on loss exceeding $1 million, which the trial record

supports—it will have the opportunity to come forward with additional evidence,

perhaps by finally opening the boxes of files Gambaryan produced pursuant to a

subpoena on the first day of trial. Moreover, contrary to Gambaryan’s suggestion, the


                                            5
district judge is not limited to the counts of conviction. Nor do we suggest that the

factors set out in 18 U.S.C. § 3553(a), upon which the district judge previously relied,

would not warrant a sentence greater than the applicable Guidelines range.

Nevertheless, before such a sentence can be imposed, the applicable Guidelines range

must be accurately calculated.

      2. Gambaryan also argues that increasing his Guidelines range for defrauding

a federal health care program more than $1 million violated the Ex Post Facto Clause.

Gambaryan’s base offense level was increased by two steps pursuant to

U.S.S.G. § 2B1.1(b)(7) (2014). This specific offense characteristic was added to the

Sentencing Guidelines in November 2011, after Gambaryan committed the offenses

charged in the indictment. See U.S.S.G. app. C vol. III amend. 749 (2011). We agree

with the Department of Justice that this requires the sentence to be vacated. See

Peugh v. United States, 133 S. Ct. 2072, 2084 (2013). Nevertheless, Gambaryan’s

success on this issue may possibly be canceled out by United States v. Adebimpe, 819

F.3d 1212 (9th Cir. 2016), which was decided while this appeal was pending and

which held that a two-step increase for abusing a position of trust could apply in these

circumstances, id. at 1214—an increase the district judge initially rejected.

VACATED AND REMANDED.




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