Court filing
OBJECTION TO PRESENTENCE INVESTIGATION REPORT filed by Defendant Artur Ayvazyan — USA v. Ayvazyan et al (Dkt. 1038)
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2021-10-07 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 1038 · 2021-10-07 · Docket on CourtListener
Summary
An objection to the Presentence Investigation Report filed by defendant Artur Ayvazyan in USA v. Ayvazyan et al., No. 2:20-cr-00579-SVW, in the U.S. District Court for the Central District of California, filed October 7, 2021 as Doc. 1038. The defense lodges a general factual objection to the offense conduct set out in paragraphs 29 through 73, 75 and 77, and states that the jury verdict came on June 25, 2021. On the guideline summary it contests a base offense level of 33, a total offense level of 35 and a range of 168 to 210 months, proposing instead a base offense level of 19, a mitigating role reduction and a total offense level of 16 yielding 21 to 27 months. Further objections address loss amounts of $21,911,962.26 intended and $18,016,141.26 actual, which the defense would limit to $274,000, and enhancements for sophisticated means and number of victims. The document is 13 pages.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
Vs.
ARTUR AYVAZYAN,
Defendant.
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DOCKET NUMBER:
2:20-CR-00579-3
DEFENDANT ARTUR
AYVAZYAN’S
OBJECTIONS TO
PRESENTENCE
INVESTIGATION
REPORT
The Defendant, ARTUR AYVAZYAN, by and through undersigned
counsel, hereby files Objections/Corrections to the Presentencing Report. Artur
Ayvazyan reserves the right to supplement the bases and arguments for these
objections prior to, or within, the later filing of a Sentencing Memorandum.
General Objections – Artur Ayvazyan has a general factual objection to the
offense conduct in paragraphs 29 through 73, 75, and 77 of the PSR. He
understands that a jury found him guilty of Counts 1 - 20, 24 and 26, and that the
Court will sentence him in accordance with those findings. However, he does not
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intend to waive objections to any of the facts associated with the offenses of
conviction that are described in the PSR.
Page 1 – “Defense Counsel” –David D. Diamond is not, and never has been,
an attorney for Mr. Artur Ayvazyan. Artur Ayvazyan respectfully requests that Mr.
Diamond’s name and contact information be removed from the PSR.
Page 2 – “Sentencing Date” – Since the disclosure of the PSR on September
23, 2021, the sentencing hearing for Artur Ayvazyan has been continued to
November 15, 2021. Artur Ayvazyan respectfully requests that this information be
updated.
Page 3 – “Citizenship” – The PSR lists Artur Ayvazyan as a Permanent
Resident. Artur Ayvazyan is a Naturalized Citizen. Artur Ayvazyan was under the
age of 18 when his mother became a United States Citizen, therefore he became a
Naturalized Citizen at that time. Artur Ayvazyan was issued a United States
Citizen passport – which is currently in the possession of the Department of
Justice. Artur Ayvazyan respectfully requests that this information be corrected.
Page 4 – “Guideline Summary” – Artur Ayvazyan respectfully objects to:
The Base Offense Level calculation of 33;
The Special Offense Characteristics of +2;
The lack of a mitigating Role Adjustment;
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The Adjusted Offense Level of 35;
The Total Offense Level of 35;
The Guideline Sentence range of 168-210 months.
Artur Ayvazyan asserts that the correct calculations are:
Base Offense Level 19
Mitigating Role Reduction – 3
Adjusted Total Offense Level 16
Guideline Range 21 – 27 months.
For clarity, the bases for these objections will be discussed below under the
specific paragraphs in which they are detailed in the PSR.
¶2 – The guilty verdict against Artur Ayvazyan occurred on June 25, 2021.
Artur Ayvazyan respectfully requests that this information be corrected.
¶17 – Edvard Paronyan was sentenced to 30 months imprisonment on
September 27, 2021. Artur Ayvazyan respectfully requests that this information be
updated.
¶32 – This paragraph discusses the evidence that Richard Ayvazyan and
Tamara Dadyan allegedly recruited others to the conspiracy. While Richard
Ayvazyan and Tamara Dadyan are mentioned in a footnote, the non-specific
phrase “[t]he defendants also recruited other individuals …” is misleading by
implying that Artur Ayvazyan recruited other people. Artur Ayvazyan did not
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recruit other people, and no evidence was presented at trial that he did so. Artur
Ayvazyan respectfully requests that this paragraph be amended to replace the
phrase “[t]he defendants …” with “Defendants Richard Ayvazyan and Tamara
Dadyan….”
¶42 - Artur Ayvazyan did not submit any G&A Diamond loan applications.
Artur Ayvazyan respectfully requests that the phrase “and his co-conspirators” be
removed from the first sentence of this paragraph.
¶51 – Artur Ayvazyan did not submit an application for a loan to Voyage
Limo. Artur Ayvazyan respectfully requests that the phrase “and his co-
conspirators” be removed from the first sentence of this paragraph.
¶55 - Artur Ayvazyan did not submit an application for a loan to Time Line
Transport. Artur Ayvazyan respectfully requests that the phrase “and his co-
conspirators” be removed from the first sentence of this paragraph.
¶57 - Artur Ayvazyan did not wire funds from Time Line Transport. Artur
Ayvazyan respectfully requests that the phrase “and his co-conspirators” be
removed from the first sentence of this paragraph.
¶58 - Artur Ayvazyan did not submit an application for a loan to Redline
Auto Mechanics. Artur Ayvazyan respectfully requests that the phrase “and his
co-conspirators” be removed from the first sentence of this paragraph.
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¶61 - Artur Ayvazyan did not submit an application for a loan to Runyan
Tax Service. Artur Ayvazyan respectfully requests that the phrase “and their co-
conspirators” be removed from the first sentence of this paragraph.
¶62 - Artur Ayvazyan did not control the Runyan Tax Service bank account.
Artur Ayvazyan respectfully requests that the phrase “and her co-conspirators” be
removed from the first sentence of this paragraph.
¶ 65 - Artur Ayvazyan did not submit an application for a loan to Mod
Interiors. Artur Ayvazyan respectfully requests that the phrase “and their co-
conspirators” be removed from the first sentence of this paragraph.
¶67 - Artur Ayvazyan did not submit an application for an SBA loan to Mod
Interiors. Artur Ayvazyan respectfully requests that the phrase “and her co-
conspirators” be removed from the first sentence of this paragraph.
¶75 – Artur Ayvazyan did not submit 151 PPP and EIDL loan applications,
did not attempt to obtain $21,911,962.26, did not obtain $18,016,141. 26 from 12
lenders or the SBA and objects to the inclusion of this paragraph.
¶71 – See General Objection above as to this paragraph, and specifically to
the assertion in footnote 9 that A. Ayvazyan used true names of tax preparers. No
evidence was presented at trial that Artur Ayvazyan used the names of tax
preparers. Artur Ayvazyan respectfully requests that his name be omitted from
footnote nine as untrue.
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¶77 – Artur Ayvazyan objects to this paragraph as he did not cause
$18,016,141.26 in actual losses to the SBA and 12 financial institutions listed in
this paragraph.
¶94 – Artur Ayvazyan objects to the first sentence of this paragraph. The
alleged loss amounts of $21,911,962 and $18,016,141 were not “established at
trial.”
Artur Ayvazyan objects to the calculation of the loss amount ascribed
to him as $21,911,962 intended and $18,016,141 actual. Artur Ayvazyan objects to
the use of + 20 loss level points in the PSR. The PSR has apparently miscalculated
the “relevant conduct” properly ascribable to Artur Ayvazyan under U.S.S.G.
§1B1.3 in arriving at these loss amounts. The sentencing guideline loss amount
level increase should be based on the $124,000 and $150,000 loans dispersed to his
legitimate company Allstate Towing and Transport, for a total loss amount of
$274,000, not the over $21 million ascribed to him in the PSR. At trial, the jury
found Artur Ayvazyan liable for the overt acts of co-conspirators pursuant to
Pinkerton liability. But Pinkerton liability does not translate directly into
sentencing culpability.1 The guidelines acknowledge that they do not purport to
establish standards of criminal liability as stated in application notes to §1B1.3.
1 See, United States v. Collazo, 984 F.3d 1308, 1334 (9th Cir. 2021) (“Pinkerton clearly distinguishes
between conspiracy and a substantive offense, see [Pinkerton v. United States]328 U.S. [640] at 643, 66
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Sentencing Accountability and Criminal Liability.—The
principles and limits of sentencing accountability under this guideline
are not always the same as the principles and limits of criminal
liability. . . . [T]he focus [of the Guidelines] is on the specific acts and
omissions for which the defendant is to be held accountable in
determining the applicable guideline range, rather than on whether the
defendant is criminally liable for an offense as a principal,
accomplice, or conspirator.
U.S.S.G. §1B1.3, comment. (n.1) (Emphasis Added)
Artur Ayvazyan’s “relevant conduct” for purposes of determining his
offense level may only be based on the actions of co-conspirators when their
conduct falls “within the scope of the jointly undertaken criminal activity,” is
committed “in furtherance of that criminal activity,” and is “reasonably foreseeable
S.Ct. 1180, while the Guidelines does not.”) William W. Wilkins, Jr. and John R. Steer, Relevant Conduct:
The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L. Rev. 495, 510 (1990). See generally
United States v. McClatchey, 316 F.3d 1122, 1127-29 (10th Cir. 2003) (conviction of conspiracy does not
make defendant responsible under § 1B1.3 for all reasonably foreseeable bribes paid by his co-
conspirators; the bribes must also fall within the scope of the defendant's joint undertaking); United
States v. Soto-Piedra, 525 F.3d 527, 531-33 (7th Cir.) (“Conspiracy liability . . . is generally much broader
than jointly undertaken criminal activity under section 1B1.3. . . . Actions of coconspirators that a
particular defendant does not assist or agree to promote are generally not within the scope of that
defendant’s jointly undertaken activity.”), cert. denied, 129 S. Ct. 261, 172 L. Ed. 2d 195 (2008); United
States v. Swiney, 203 F.3d 397, 404 (6th Cir. 2000) ("[T]he Sentencing Guidelines have modified the
Pinkerton theory of liability so as to harmonize it with the Guidelines’ goal of sentencing a defendant
according to the ‘seriousness of the actual conduct of the defendant and his accomplices.’”) (quoting
Wilkins & Steer, supra) (distinguished in United States v. McIntosh, 236 F.3d 968, 974 (8th Cir. 2001));
United States v. Lanni, 970 F.2d 1092, 1093 (2d Cir. 1992) ("[A]n important distinction exists between
the criminal law standard for convicting a defendant of conspiracy and the Guidelines standard for
sentencing a defendant convicted of conspiracy.”).
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in connection with that criminal activity.” U.S.S.G. § 1B1.3, cmt. n.3(A) (2018).
[W]hen the conduct of others does not meet [the above criteria], the conduct is not
relevant conduct….” Id. (Emphasis added). This sentencing determination must be
supported by a preponderance of the evidence. See United States v. Perez, 962 F.3d
420, 448 (9th Cir. 2020).
The scope of Artur Ayvazyan’s “jointly undertaken criminal activity” for
purposes of sentencing after findings of guilt at trial, extend only to the losses from
the loans dispersed to his legitimate company – Allstate Towing. Those loss
amounts total $274,000. Losses from other loans were not “reasonably
foreseeable” to Artur Ayvazyan either. Artur Ayvazyan’s convictions appear to
have been sustained on the strength of the evidence against his wife Tamara
Dadyan, and his brother Richard Ayvazyan. There is no evidence that Artur
Ayvazyan was participating with his wife and brother in the filing of multiple loans
for multiple fictitious businesses. While a jury found Artur Ayvazyan guilty, the
amount of loss attributable to Artur Ayvazyan for sentencing purposes cannot be
predicated on that alone.
The proper loss amount as to Artur Ayvazyan is $274,000, resulting in a
level increase of 12 pursuant to U.S.S.C §2B1.1(b)(1)(G).
¶95 – Artur Ayvazyan objects to the inclusion of a two (2) point increase
under §2B1.1(b)(2)(A)(i) for more than 10 victims. Only victims which suffer
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actual loss from the relevant conduct of Artur Ayvazyan may be counted towards
the number of victims under §2B1.1(b)(2)(A)(i). §1B1.3(a)(1)(B). As discussed
above, Artur Ayvazyan’s relevant conduct runs only to the losses from loans to his
business, Allstate Towing. The victims of these two loans would be Cross River
Bank, and the SBA. These two (2) lenders are not 10 or more lenders. Because
Artur Ayvazyan’s relevant conduct does not extend to 10 or more victims, the
application of this specific offense characteristic is unwarranted.
¶97 – Artur Ayvazyan objects to the addition of two (2) points for
“Sophisticated Means.” §2B1.1(b)(10) allows for an additional two (2) points if the
“defendant intentionally engaged in or caused the conduct constituting
sophisticated means.” As discussed previously, Artur Ayvazyan understands that
he will be sentenced by this Court subsequent to his conviction at trial. However,
the relevant conduct attributable to him for sentencing purposes does not
encompass sophisticated means. The loan applications for his legitimate business,
Allstate Towing, were in his name (not a fictitious name.) The bank accounts
receiving the money from those loans were legitimate business bank accounts on
which he was a signatory. The transfer of funds from his business bank account
was not done using any fictitious name. He did not use the names of business
owners unknown to him to apply for loans. Artur Ayvazyan did not “transfer
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money through a network of accounts to pay for personal expenses.Ӥ2B1.1 Cmt.
n. 9(B).
Artur Ayvazyan also objects to footnote 11 to paragraph 97, which urges
without basis, an alternative two (2) level increase for sophisticated laundering
under USSG §2S1.1(b)(3). Artur Ayvazyan did not use, and no evidence was
presented at trial, that he used fictitious entities, shell corporations, or multiple
levels “layering” of funds when money was transferred from his legitimate
business bank account to an escrow company. See §2S1.1 cmt. n. 5(A)
¶98-99– Artur Ayvazyan objects to the inclusion of and additional two (2)
points under ¶2B1.1(b)(11).
¶103 – Based on the correct level increase of 12 rather than 20, the proper
exclusion of sophisticated means and number of victims specific offense
characteristics, the correct base offense level is 19.
¶105 – 106 – Artur Ayvazyan objects to the failure to include a mitigating
role adjustment. He also objects to the untrue assertion that “A. Ayvazyan was
essential in carrying out this fraudulent scheme, and clearly understood the scope
and structure of the conspiracy.” As discussed above, the conduct for which Artur
Ayvazyan suffered a conviction results in vastly less culpability than other co-
defendants, therefore a minor role adjustment of -3 points should be granted.
USSG §3B1.2. “A defendant who is accountable under §1B1.3 (Relevant Conduct)
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only for the conduct in which the defendant personally was involved and who
performs a limited function in the criminal activity may receive an adjustment
under this guideline.” Id. As discussed above, Artur Ayvazyan’s conviction at trial
appears to be largely based on the evidence of fraud committed by other co-
conspirators. No evidence was presented that Artur Ayvazyan participated or
agreed to participate in any loans not related to his own legitimate business,
Allstate Towing. He did not receive any other loan proceeds. He was not involved
in the application of any other PPP or EDIL loans. He was not involved in the
transfer of any other loan proceeds. No other PPP or EIDL loan proceeds flowed
through his bank accounts. He was not involved in the purchase of any luxury
homes or jewelry. He did not design the scheme or set it into motion. He was not
involved in the opening or management of bank accounts in fictitious names. In
short, he was far from “essential,” but rather occupied a minor role.
Alternatively, should the Court hold Artur Ayvazyan responsible for
relevant conduct in establishing a greater loss level than 12, he should still be
granted a three (3) level reduction under §3B1.1. Should Artur Ayvazyan be held
to a loss amount as calculated by the PSR, he is being held accountable for loss
“that greatly exceeds the defendant’s personal gain from a fraud offense.” U.S.S.G.
§ 3B1.2 cmt. n.3(A). In that circumstance, Artur Ayvazyan would be a “defendant
who is accountable under §1B1.3 for a loss amount under §2B1.1 (Theft, Property
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Destruction, and Fraud) that greatly exceeds the defendant's personal gain from a
fraud offense or who had limited knowledge of the scope of the scheme may
receive an adjustment under this guideline.” Id.
¶108 – The correct Adjusted Offense Level is 16.
¶112 – The correct Total Offense Level is 16.
¶134 – The phrase “when he returned to Armenia on his honeymoon,” is
factually incorrect. Artur Ayvazyan has not been to Armenia since he left as a
child. He learned his father was deceased when he returned home to America from
his honeymoon. Artur Ayvazyan respectfully requests that this information be
updated.
¶137 – The PSR lists Artur Ayvazyan as a Permanent Resident. Artur
Ayvazyan is a Naturalized Citizen. Artur Ayvazyan was under the age of 18 when
his mother became a United States Citizen, therefore he became a Naturalized
Citizen at that time. Artur Ayvazyan was issued a United States Citizen passport –
which is currently in the possession of the Department of Justice. Artur Ayvazyan
respectfully requests that this information be corrected.
¶165 – Artur Ayvazyan’s Toyota Tundra was purchased for $15,000 and the
balance on the car is $14,000 and was financed for three years. A typographical
error appears to have occurred when listing that the vehicle would be paid off in
2005. Artur Ayvazyan respectfully requests that this information be corrected.
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¶199 – As discussed above, Artur Ayvazyan assets that restitution be limited
to the loss amounts resulting from the loans dispersed to Allstate Towing.
For the reasons stated, the defense requests that the foregoing objections be
sustained.
DATED: October 7, 2021
Respectfully Submitted,
By:/s/Jennifer J. Wirsching
Jennifer J. Wirsching
Attorney for Artur Ayvazyan
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