Memorandum of USCA filed as to Defendant Artur Ayvazyan, Notice — USA v. Ayvazyan et al. (Dkt. 1401, C.D. Cal.)

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U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 1401 · 2023-08-07 · Docket on CourtListener

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NOT FOR PUBLICATION 
 
UNITED STATES COURT OF APPEALS 
 
FOR THE NINTH CIRCUIT 
 
UNITED STATES OF AMERICA,  
  
 
 
 
 
 
Plaintiff-Appellee,  
  
   v.  
  
ARTUR AYVAZYAN, AKA Arthur 
Ayvazyan,  
  
 
 
 
 
 
Defendant-Appellant. 
No. 
21-50302  
 
D.C. Nos.  
2:20-cr-00579-SVW-3  
2:20-cr-00579-SVW  
 
 
MEMORANDUM*  
 
Appeal from the United States District Court 
for the Central District of California 
Stephen V. Wilson, District Judge, Presiding 
 
Argued and Submitted June 8, 2023 
Pasadena, California 
 
Before:  M. SMITH and DESAI, Circuit Judges, and AMON,** District Judge. 
 
A jury convicted Artur Ayvazyan of various offenses stemming from an eight-
person conspiracy to fraudulently obtain and launder millions of dollars in federal 
Covid-relief funds that were intended to assist businesses impacted by the pandemic.  
 
 
 
*  
This disposition is not appropriate for publication and is not precedent 
except as provided by Ninth Circuit Rule 36-3. 
  
 
 
**  
The Honorable Carol Bagley Amon, United States District Judge for 
the Eastern District of New York, sitting by designation. 
FILED 
 
AUG 7 2023 
 
MOLLY C. DWYER, CLERK 
U.S. COURT OF APPEALS 
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Artur argues that his convictions are not supported by sufficient evidence and that 
the district court erred in its application of the Sentencing Guidelines and by failing 
to invite his allocution.1  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We 
affirm in part as to his jury convictions and the district court’s application of the 
Sentencing Guidelines; we vacate in part as to the district court’s failure to invite 
allocution and remand for his de novo resentencing.2 
SUFFICENCY OF THE EVIDENCE 
 
“The court reviews de novo the sufficiency of the evidence, viewing the 
evidence in the light most favorable to the prosecution and asking whether any 
rational trier of fact could have found the essential elements of the crime beyond a 
reasonable doubt.”  United States v. Tuan Ngoc Luong, 965 F.3d 973, 980–81 (9th 
Cir. 2020) (cleaned up). 
 
1. 
A rational jury could have convicted Artur for conspiracy to commit 
wire and bank fraud (Count 1).  See 18 U.S.C. §§ 1343–1344, 1349.  “[P]roof of the 
defendant’s connection to the conspiracy must be shown beyond a reasonable doubt, 
but the connection can be slight.”  United States v. Montgomery, 384 F.3d 1050, 
1062 (9th Cir. 2004).  “[T]he government need not prove the defendant knew all the 
 
1  
Because Artur shares the same last name as one of his co-conspirators, 
we refer to all defendants by their first names. 
2 
In a separately filed opinion, we affirm Artur’s restitution obligation. 
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conspirators and details or participated in all the conspiracy’s dealings.”  United 
States v. Jaimez, 45 F.4th 1118, 1123 (9th Cir. 2022).  Artur submitted a loan with 
false payroll information exactly matching the payroll information on other loan 
applications connected to the conspiracy; texts between the conspiracy’s two 
principal organizers contemplated Artur’s involvement in the conspiracy, including 
that Artur “want[ed] to do another [fraudulent loan application] with [U.S.] bank”; 
and Artur’s home and cellphone were filled with materials (including stolen 
identification documents) connected to fraudulent loan applications.  
 
2. 
A rational jury could have convicted Artur of substantive counts of wire 
fraud and bank fraud (Counts 2, 4–14, 16–20).  See 18 U.S.C. §§ 1343–1344.  The 
fraudulent loan applications and wire transfers underpinning these counts were “in 
furtherance of the conspiracy,” “within the scope” of the conspiracy, and 
“reasonably forsee[able].”  Pinkerton v. United States, 328 U.S. 640, 647–48 (1946). 
 
3. 
A rational jury could have convicted Artur of aggravated identity theft 
(Count 24).  See 18 U.S.C. § 1028A(a)(1).  A fraudulent loan application in the name 
of an individual (A.D.) was submitted from an IP address registered to Artur.  A.D. 
had previously traveled to the United States on a student visa, and Artur’s cellphone 
contained pictures of A.D.’s driver’s licenses and social security card.  Artur 
contends that the materials on his cellphone and in his home belonged solely to his 
wife, but a jury is not obligated to credit that explanation.  See Tuan Ngoc Luong, 
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965 F.3d at 980–81 (“viewing the evidence in the light most favorable to the 
prosecution”).  
 
4. 
A reasonable jury could have convicted Artur of conspiracy to commit 
money laundering (Count 26).  See 18 U.S.C. § 1956(h).  Artur’s wife and one of 
the principal organizers of the conspiracy (Tamara Dadyan) texted the other 
principal organizer (Richard Ayvazyan) that she would “have [Artur] go deposit the 
157k Vahe [i.e., another co-conspirator].”  A few days later, $155,000 of Vahe’s 
$157,500 loan was transferred to a Runyan Tax Service account controlled by 
Richard for “payroll.”  Additionally, Tamara texted Richard, “I’m expecting a wire 
for Art for $73500.”  A few days later,  $73,500 was transferred to Runyan Tax 
Service for “payroll.”  And two days later, Runyan Tax Service issued a $73,500 
check to Artur’s business. 
SENTENCING 
 
“In the sentencing context, we review the district court’s factual findings for 
clear error, its construction of the United States Sentencing Guidelines de novo, and 
its application of the Guidelines to the facts for abuse of discretion.  United States v. 
Halamek, 5 F.4th 1081, 1087 (9th Cir. 2021) (cleaned up).  If an issue was not raised 
below, we review it for plain error.  Fed. R. Crim. P. 52(b); United States v. Williams, 
5 F.4th 973, 978 (9th Cir. 2021) (explaining plain error requirements). 
 
5. 
The district court did not plainly err by finding the facts underpinning 
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Artur’s loss and sophisticated-means enhancements by a preponderance of the 
evidence instead of by clear-and-convincing evidence.3  While these enhancements 
increased Artur’s Sentencing Guidelines offense level by more than four levels, they 
did not more than double his recommended Guidelines range—instead, they 
increased it from 37-46 months to 70-87 months.  See United States v. Parlor, 2 
F.4th 807, 817 (9th Cir. 2021) (not plain error to apply the preponderance standard 
where the four-level-enhancement but not the more-than-double factor is met).  
Additionally, the loss enhancement was based on “the extent of a conspiracy” for 
which Artur was convicted—a factor that “weighs heavily against” requiring the 
heightened clear-and-convincing standard.  United States v. Riley, 335 F.3d 919, 926 
(9th Cir. 2003). 
 
6. 
Even assuming arguendo that the district court erred by failing to make 
Sentencing Guidelines § 1B1.3(a)(1)(B) “particularized findings” regarding the 
scope of the conspiracy Artur joined, United States v. Lloyd, 807 F.3d 1128, 1142 
(9th Cir. 2015), any error would not affect Artur’s substantial rights.  While the 
district court did not expressly make “particularized findings” when applying the 
relevant-conduct Guidelines section, it made the required findings when conducting 
 
3 
One of Artur’s co-defendants requested application of the clear-and-
convincing standard at his own sentencing hearing.  This, however, did not preserve 
the issue for Artur, as the defendant- and fact-specific nature of the inquiry “logically 
required a separate objection” by Artur at his own sentencing hearing.  United States 
v. Scrivener, 189 F.3d 944, 953–54 (9th Cir. 1999). 
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its section 3553(a) analysis.  The district court found that Artur “knew the scope of 
the conspiracy” and that his claim of limited knowledge was “patently incredible.”  
Cf. Riley, 335 F.3d at 928 (deeming failure to expressly determine “the scope of [the 
defendant’s] participation” harmless because the court “adopt[ed] the factual 
findings of the PSR,” which went to that consideration). 
 
7. 
The district court did not commit legal error by imposing an identical 
loss amount on four co-coconspirators with differing roles in the conspiracy.  A 
Guidelines Application Note expressly contemplates that co-conspirators with 
differing roles in a conspiracy may receive the same loss adjustment at sentencing.  
See U.S.S.G. § 1B1.3 Application Note 4(C)(ii) (two defendants jointly conspire to 
sell fraudulent stocks; one fraudulently obtains $20,000; the other obtains $35,000; 
each is “held accountable” for $55,000 “because the conduct of each was within the 
scope of the jointly undertaken criminal activity . . . , was in furtherance of that 
criminal activity, and was reasonably foreseeable in connection with that criminal 
activity”). 
 
8. 
The district court did not abuse its discretion when determining that 
Artur qualified for a sophisticated-means enhancement.  See U.S.S.G. § 
2B1.1(b)(10).  As mentioned, Artur’s cellphone and home contained materials 
implicating him in the use of fraudulent IDs (supra sections 1, 3), and the district 
court found Artur’s contention that those materials belonged solely to his wife to be 
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“patently incredible” and that Artur “perjured himself” by so testifying.  Moreover, 
evidence implicated Artur in two transfers of funds between co-conspirators with 
the false memo lines of “payroll.”  See supra section 4; United States v. Horob, 735 
F.3d 866, 872 (9th Cir. 2013) (per curiam) (affirming the application of the 
sophisticated-means-enhancement because, among other things, the defendant 
“fabricated numerous documents” and “the complicated and fabricated paper trail 
made discovery of his fraud difficult”). 
 
9. 
The district court did not abuse its discretion by declining to apply a 
Sentencing Guidelines § 3B1.2 mitigating-role downward adjustment.  Artur’s 
argument that he is “substantially less culpable than the average participant,” 
U.S.S.G. § 3B1.2 Application Note 3(A), requires one to credit his contention that 
his involvement in the conspiracy was limited to submitting two fraudulent loans.  
But given the breadth of evidence implicating him in the conspiracy (supra sections 
1, 3–4), the district court did not clearly err in rejecting that contention. 
 
10. 
The district court did not plainly err by not expressly addressing the 
non-exhaustive mitigating-role factors set forth in Application Note 3(C) to 
Sentencing Guidelines § 3B1.2.  “[W]e assume the district judge knew the law and 
understood his or her obligation to consider all of the sentencing factors,” and “the 
district court need not recite each sentencing factor to show it has considered them.”  
United States v. Diaz, 884 F.3d 911, 916 (9th Cir. 2018).  In any event, the district 
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court made findings on every factor as part of its section 3553(a) analysis—finding 
that Artur “knew the scope of the conspiracy,” “mainly assist[ed]” Tamara, and 
received a sum approximating the Allstate loans that he submitted.  
 
11. 
The district court did not plainly err by not determining the application 
of the mitigating-role adjustment with regard only to Artur’s role in the money-
laundering conspiracy.  See U.S.S.G. § 2S1.1 Application Note 2(C).  Artur contends 
that he “had no involvement with money laundering,” but evidence implicates Artur 
in transactions intended to conceal the source of fraudulently obtained funds.  Supra 
section 4.  Moreover, given the closely related factual nature of the substantive 
offenses (fraudulently obtaining loans) and the laundering (transferring the 
fraudulently obtained loan funds through fictitious entities with fraudulent memo 
lines), Artur’s relative role in the two conspiracies does not materially differ. 
 
12. 
The district court plainly erred by failing to invite Artur’s allocution at 
sentencing.  Fed. R. Crim. P. 32(i)(4)(A)(ii); United States v. Gunning, 401 F.3d 
1145, 1147–49 (9th Cir. 2005).  We remand for Artur’s allocution and resentencing, 
consistent with “our general rule” pursuant to which we “remand for resentencing 
without limitation on the district court.”  Gunning, 401 F.3d at 1148 (citation 
omitted); see also United States v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en 
banc) (“[A]s a general matter, if a district court errs in sentencing, we will remand 
for resentencing on an open record—that is, without limitation on the evidence that 
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the district court may consider.”). 
 
AFFIRMED in part; VACATED AND REMANDED in part. 
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