                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 13 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-56138

                Plaintiff-Appellee,             D.C. Nos.    2:18-cv-01426-TJH
                                                             2:14-cr-00567-BRO-2
 v.

ANAHIT SHATVORYAN, AKA Anna                     MEMORANDUM*
Shatvoryan, AKA Anne Shatvoryan,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Terry J. Hatter, Jr., District Judge, Presiding

                     Argued and Submitted September 9, 2019
                              Pasadena, California

Before: OWENS, R. NELSON, and MILLER, Circuit Judges.

      Anahit Shatvoryan pled guilty to one count of conspiracy to commit

healthcare fraud for her role in a scheme to defraud Medicare. After signing the

plea agreement, Shatvoryan filed a 28 U.S.C. § 2255 motion arguing that her

counsel were ineffective in negotiating her plea agreement. The district court

denied the motion without holding an evidentiary hearing. In its order, the district


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court found that Shatvoryan’s counsel were defective in negotiating her plea

agreement but concluded that she had not suffered any prejudice under Strickland

v. Washington, 466 U.S. 668 (1984). Shatvoryan timely appealed and argues that

the district court erred in denying her motion without holding an evidentiary

hearing pursuant to 28 U.S.C. § 2255(b). We agree and therefore reverse and

remand with instructions to hold a hearing.

      A trial court may deny a § 2255 motion without holding an evidentiary

hearing only if the record “conclusively show[s] that the prisoner is entitled to no

relief.” § 2255(b). Otherwise, the trial court “shall . . . grant a prompt hearing

. . . , determine the issues[,] and make findings of fact and conclusions of law . . . .”

Id. “A hearing must be granted unless the movant’s allegations, when viewed

against the record, do not state a claim for relief or are so palpably incredible or

patently frivolous as to warrant summary dismissal.” United States v. Schaflander,

743 F.2d 714, 717 (9th Cir. 1984). “The standard essentially is whether the

movant has made specific factual allegations that, if true, state a claim on which

relief could be granted,” id., which is a “low threshold,” United States v. Howard,

381 F.3d 873, 883 (9th Cir. 2004). The decision to deny a § 2255 motion without a

hearing is reviewed for abuse of discretion. See United States v. Leonti, 326 F.3d

1111, 1116 (9th Cir. 2003).

      Here, Shatvoryan argues that but for her counsel’s ineffective assistance, she


                                           2
would have secured a more favorable plea agreement that left open the loss amount

attributable to her fraudulent conduct under United States Sentencing Guideline

§ 2B1.1(b)(1)(J).

      In support of that argument, Shatvoryan submitted declarations detailing her

familiarity with Medicare’s reimbursement scheme. According to Shatvoryan, she

knew that despite her submission of reimbursement requests in the amount of $4.5

million to Medicare, Medicare’s reimbursement caps limited the amount she and

her co-conspirators could collect to roughly $1.7 million. Crediting those

statements, and in light of the fact that (1) Shatvoryan was able to secure a more

favorable plea agreement after her first plea agreement was vacated and (2) the

United States Attorney for the Central District of California has routinely

negotiated plea agreements that leave open the loss amount under § 2B1.1(b)(1)(J),

we conclude that Shatvoryan has “state[d] a claim on which relief could be

granted.” Schaflander, 743 F.2d at 717. The district court therefore was required

to hold an evidentiary hearing before denying Shatvoryan’s § 2255 motion.

      Accordingly, we REVERSE AND REMAND with instructions to hold a

timely hearing that allows Shatvoryan to obtain appropriate relief.




                                          3
                                                                       FILED
                                                                       SEP 13 2019
United States v. Shatvoryan, No. 18-56138                          MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS

OWENS, Circuit Judge, dissenting:

      I respectfully dissent, as I do not believe the defendant has satisfied her

burden to receive an evidentiary hearing.
