Petition for Writ of Certiorari — Vahe Dadyan and Artur Ayvazyan, aka Arthur Ayvazyan, Petitioners v. United States

Supreme Court briefJan 22, 2024

Ask Donna

What actually matters in this document.

Text

APPENDIX A

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 1 of 16

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No. 21-50237

Plaintiff-Appellee,

D.C. No.

2:20-cr-00579SVW-8

VAHE DADYAN,

Defendant-Appellant.

OPINION

UNITED STATES OF AMERICA,

No. 21-50302

Plaintiff-Appellee,

D.C. Nos.

2:20-cr-00579SVW-3

2:20-cr-00579SVW

ARTUR AYVAZYAN, AKA Arthur

Ayvazyan,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 2 of 16

USA V. DADYAN

Argued and Submitted June 8, 2023

Pasadena, California

Filed August 7, 2023

Before: MILAN D. SMITH, JR. and ROOPALI H.

DESAI, Circuit Judges, and CAROL BAGLEY AMON, *

District Judge.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY **

Criminal Law

The panel affirmed in part and vacated in part the district

court’s imposition of restitution obligations on Vahe Dadyan

and Artur Ayvazyan following their convictions 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.

The panel held that, under the Mandatory Victims

Restitution Act (MVRA), the district court properly imposed

The Honorable Carol Bagley Amon, United States District Judge for

the Eastern District of New York, sitting by designation.

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 3 of 16

USA V. DADYAN

restitution in the full amount of the loss caused by the

conspiracy instead of just the loss caused by the fraudulent

loan applications Vahe and Artur personally played a role in

submitting.

As to Artur, the panel held that the district court properly

ordered a restitution amount under the MVRA based on the

“value” of fraudulently obtained property, which exceeded

the amount of “actual loss” the district court found when

sentencing him under U.S.S.G. § 2B1.1(b)(1). Artur’s

proposed rule to make a Guidelines-loss finding a hard cap

on a restitution calculation could not be squared with Ninth

Circuit precedent, or with the text and purpose of the

MVRA.

The panel held that Artur failed to establish that the

district court clearly erred in calculating the amount of

restitution.

The panel held that precedent foreclosed Artur’s

argument that his Fifth and Sixth Amendment rights to due

process and a jury trial required that a jury, not a district

judge, find all facts underpinning restitution beyond a

reasonable doubt.

As to Vahe, the panel vacated and remanded for the

district court to amend his judgment and commitment order

to specify, as the government conceded, that his restitution

obligation runs jointly and severally with those of his four

trial co-defendants.

In separately filed memorandum dispositions, the panel

affirmed Vahe and Artur’s jury convictions, affirmed the

district court’s application of the Sentencing Guidelines to

Artur, and vacated and remanded for Artur’s resentencing

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 4 of 16

USA V. DADYAN

because the district court plainly erred by failing to invite his

allocution.

COUNSEL

Verna J. Wefald (argued), Law Office of Verna Wefald,

Pasadena, California, for Defendant-Appellant Vahe

Dadyan.

Kathryn A. Young (argued), Deputy Federal Public

Defender; Cuauhtemoc Ortega, Federal Public Defender;

Federal Public Defender’s Office, Los Angeles, California;

for Defendant-Appellant Artur Ayvazyan.

David M. Lieberman (argued) and Christopher Fenton,

Attorneys, Appellate and Fraud Sections; Lisa H. Miller,

Deputy Assistant Attorney General; Kenneth A. Polite, Jr.,

Assistant Attorney General; E. Martin Estrada, United States

Attorney; Criminal Division, United States Department of

Justice, United States Attorney’s Office; Washington, D.C.;

Daniel G. Boyle and Scott Paetty, Assistant United States

Attorneys; Bram M. Alden, Criminal Appeals Section Chief;

United States Department of Justice, United States

Attorney’s Office; Los Angeles, California; Jeremy R.

Sanders, Trial Attorney; United States Department of

Justice; New York, New York; for Plaintiff-Appellee.

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 5 of 16

USA V. DADYAN

OPINION

M. SMITH, Circuit Judge:

Vahe Dadyan and Artur Ayvazyan were convicted 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. On appeal, Vahe and

Artur challenge their restitution obligations on both legal and

factual grounds. We affirm their restitution obligations,

except that we vacate and remand for Vahe’s judgment and

commitment order to be amended to specify that, as all

parties agree, his restitution obligation runs jointly and

severally with those of his trial co-codefendants. 1

FACTUAL BACKGROUND

In March 2020, the federal government provided two

lifelines to businesses impacted by the Covid-19 pandemic.

The Coronavirus Aid, Relief, and Economic Security

(CARES) Act established the Paycheck Protection Program

(PPP), which made billions of dollars in governmentguaranteed loans available to qualifying businesses for

payroll retention and other authorized expenses. Pub. L. No.

116-136, § 1102, 134 Stat. 281, 286–94 (2020). The

CARES Act also authorized the Small Business

Administration, through the Economic Injury Disaster Loans

(EIDL) program, to make low-interest loans to qualifying

In separately filed memorandum dispositions, we affirm Vahe and

Artur’s jury convictions, affirm the district court’s application of the

Sentencing Guidelines to Artur, and vacate and remand for Artur’s

resentencing because the district court plainly erred by failing to invite

his allocution.

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 6 of 16

USA V. DADYAN

businesses for certain authorized expenses, including

providing sick leave to employees who contracted Covid and

maintaining payroll during Covid-related business

disruptions. Id. § 1110, 306–08.

Vahe, Artur, and six other individuals conspired to

submit fraudulent PPP and EIDL loan applications and, once

those loan applications were approved, to launder the

fraudulently obtained funds. 2 Vahe, for example, signed a

$157,500 PPP loan application stating that his business had

eleven employees and average monthly payroll expenses of

$63,000—but, in reality, his business had no employees and

no payroll expenses. Similarly, Artur (among other things)

submitted a $124,000 PPP loan application containing false

payroll information. Nor did Vahe and Artur use the PPP

funds for authorized business expenses. Instead, after taking

a circuitous route, the bulk of Vahe’s and Artur’s PPP funds

ended up facilitating co-conspirators’ multi-million-dollar

real estate transactions.

A jury convicted Vahe of conspiracy to commit bank and

wire fraud (18 U.S.C. §§ 1343–1344, 1349); conspiracy to

commit money laundering (id. § 1956(h)); and substantive

counts of wire fraud, bank fraud, and concealment money

laundering (id. §§ 1343–1344, 1956(a)(1)(B)(i)). The

district court sentenced Vahe to one year and one day in

prison and held him jointly and severally liable along with

his trial co-defendants for $10,706,188.13 in restitution—

with that figure representing the district court’s calculation

Because Vahe and Artur are related to and share the same last names

as some of their co-conspirators, we refer to them by their first names.

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 7 of 16

USA V. DADYAN

of all losses the conspiracy directly and proximately caused

to victims after Vahe joined it. 3

A jury convicted Artur of conspiracy to commit bank and

wire fraud (18 U.S.C. §§ 1343–1344, 1349); conspiracy to

commit concealment money laundering (id. § 1956(h));

substantive counts of wire and bank fraud (id. §§ 1343–

1344); and aggravated identity theft (id. § 1028A(a)(1)).

The district court sentenced Artur to five years in prison and

held him jointly and severally liable along with his trial codefendants for $17,723,141.26 in restitution—with that

figure representing the district court’s calculation of all

losses the conspiracy directly and proximately caused to

victims. Vahe and Artur timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. “The

legality of a restitution order is reviewed de novo, as is the

district court’s valuation methodology. If the order is within

statutory bounds, then the restitution calculation is reviewed

for abuse of discretion, with any underlying factual findings

reviewed for clear error.” United States v. Gagarin, 950

F.3d 596, 607 (9th Cir. 2020) (cleaned up).

ANALYSIS

I. Co-Conspirator Liability

Vahe and Artur argue that the district court erred as a

matter of law by imposing restitution in the full amount of

loss caused by the conspiracy instead of just the loss caused

by the fraudulent loan applications they personally played a

As explained below, the parties agree that Vahe’s restitution obligation

runs jointly and severally with his trial co-defendants, but his current

judgment and commitment order does not reflect that. Infra section V.

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 8 of 16

USA V. DADYAN

role in submitting. 4 We reject this argument as foreclosed

by precedent: Where a defendant is convicted of conspiracy,

the Mandatory Victims Restitution Act (MVRA) authorizes

a district court to hold the defendant jointly and severally

liable, see 18 U.S.C. § 3664(h), “for all [victims] harmed by

the entire scheme,” United States v. Riley, 335 F.3d 919, 931

(9th Cir. 2003) (emphasis added).

In Riley, the defendant pled guilty to, among other

offenses, conspiracy to produce fictitious financial

instruments (there, checks and money orders). Id. at 923–

25. Challenging his restitution obligation, the defendant

argued that “he should not be held accountable for the losses

caused by his coconspirators’ check cashing”—that is, his

co-conspirators’ conduct within the scope of and in

furtherance of the conspiracy he joined. Id. at 931. We

rejected this argument and held: “[I]n a case involving a

conspiracy or scheme, restitution may be ordered for all

persons harmed by the entire scheme. . . . A conspirator is

vicariously liable for reasonably foreseeable substantive

crimes committed by a coconspirator in furtherance of the

conspiracy.” Id. at 931–32. So too here: The district court

did not err by holding Vahe and Artur jointly and severally

liable for restitution in the full amount of loss that the entire

conspiracy caused. 5

Vahe’s restitution obligation (about $10.7 million) is less than Artur’s

(about $17.7 million) because the district court excluded from Vahe’s

obligation all losses caused before Vahe joined the conspiracy.

This is not to suggest that a district court must follow the approach

taken here. Instead, a district court has a choice where it “finds that more

than 1 defendant has contributed to the loss of a victim.” 18 U.S.C.

§ 3664(h). A court may, as the district court did here, hold each

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 9 of 16

USA V. DADYAN

II. Different

Restitution

Calculations

and

Guidelines-Loss

Artur argues that the district court erred as a matter of

law by ordering a restitution amount (about $17.7 million)

that exceeded the amount of loss the district court found

when sentencing him (more than $1.5 million but less $3.5

million). As above, our precedent forecloses this argument:

There is no categorical rule that restitution must be equal to

or less than the amount of loss found when applying

Sentencing Guidelines § 2B1.1(b)(1) or similar loss-based

Guidelines sections.

As Artur’s argument suggests, MVRA restitution

calculations in property-deprivation cases and Guidelines

section 2B1.1(b)(1) loss calculations do share common

ground. When calculating MVRA restitution for a propertybased offense and the “return of the [fraudulently obtained]

property . . . is impossible, impracticable, or inadequate,” the

district court “shall require” the defendant to pay “the value

of the property.” 18 U.S.C. § 3663A(b)(1)(B) (emphasis

added). When calculating the Guidelines range for a

defendant convicted of a standard property-deprivation

crime, a district court increases the defendant’s Guidelines

range to account for the amount of “loss” caused, with loss

defined as the greater of the “actual” or “intended” amount

of “pecuniary harm.” U.S.S.G. § 2B1.1(b)(1) & Application

Note 3(A). Given the high-level similarity of these terms

(“value” of fraudulently obtained property and “pecuniary

harm”), restitution and Guidelines-loss figures often mirror

one another when the Guidelines calculation is based on

actual (rather than intended) loss. See United States v.

defendant jointly and severally “liable for payment of the full amount of

restitution,” or it “may apportion liability among the defendants.” Id.

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 10 of 16

USA V. DADYAN

Lawrence, 189 F.3d 838, 842 (9th Cir. 1999) ($574,700 for

both); cf. United States v. Anderson, 741 F.3d 938, 951 (9th

Cir. 2013) (Guidelines § 2B5.3(b)(1) loss of at least

$200,000; restitution of $247,144).

Moreover, some of our decisions include statements

equating restitution and actual loss. See, e.g., United States

v. Begay, 33 F.4th 1081, 1096 (9th Cir. 2022) (“any award

is limited to the victim’s actual losses” (citation omitted));

United States v. Rizk, 660 F.3d 1125, 1137 (9th Cir. 2011)

(“[a] district court may not order restitution such that victims

will receive an amount greater than their actual losses”);

United States v. Stoddard, 150 F.3d 1140, 1147 (9th Cir.

1998) (“[r]estitution can only be based on actual loss”). As

we have done before, “[w]e acknowledge that [these

decisions] use of the phrase ‘actual loss’ in discussion of

restitution generates some confusion.” United States v.

Nosal, 844 F.3d 1024, 1046–47 (9th Cir. 2016) (citation

omitted). That is because those decisions used “actual loss”

in the colloquial sense, not necessarily tethered to a

Guidelines calculation. The point being emphasized in those

statements is that victims may not receive restitution that

exceeds the losses they actually suffered.

But those statements and the noted similarities between

restitution and Guidelines loss do not add up to the

categorical rule, advanced by Artur, that once a court

determines “actual loss” for Sentencing Guidelines

purposes, its restitution determination cannot exceed that

amount. Instead, when our court has actually been presented

with Artur’s categorical argument, we have rejected it. In

Nosal, we explained: “We must initially decide whether, as

[the defendant] urges, the restitution award is invalid

because it exceeds the actual loss that the district court

determined for the purposes of the Sentencing Guidelines

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 11 of 16

USA V. DADYAN

U.S.S.G. § 2B1.1(b) . . . . The answer to that question is

found in our observation that ‘calculating loss under the

guidelines is not necessarily identical to loss calculation for

purposes of restitution.’” Id. at 1046 (citation omitted).

Indeed, we have cautioned district courts to not reflexively

“rely on [their] calculation of the loss under the Sentencing

Guidelines to determine the amount of restitution as the two

measures serve different purposes and utilize different

calculation methods.” Anderson, 741 F.3d at 952; see also

United States v. Gossi, 608 F.3d 574, 582 (9th Cir. 2010)

(“we reject [the defendant’s] argument that we should look

to the advisory Sentencing Guidelines for calculating the

victim’s losses”). Artur’s proposed categorial rule, which

would make a Guidelines-loss finding a hard cap on a

restitution calculation, cannot be squared with our court’s

precedent.

Nor can Artur’s proposed categorical rule be squared

with the text and purpose of the MVRA. The MVRA does

not just set forth the high-level guidance that restitution

should equal the “value” of fraudulently obtained property;

it provides specific instructions on how to calculate “value”

in specific situations—sometimes doing so in ways that

expressly contradict the Guidelines’ approach to calculating

loss. Consider the following two examples: The MVRA

requires compensation for “expenses incurred during

participation in the investigation,” while Guidelines

commentary provides that “[l]oss shall not include . . . costs

incurred by victims primarily to aid the government in[] the

prosecution and criminal investigation of an offense.”

Nosal, 844 F.3d at 1046–47 (quoting 18 U.S.C.

§ 3663A(b)(4); U.S.S.G. § 2B1.1 Application Note

3(D)(ii)). Similarly, the MVRA “can include prejudgment

interest,” United States v. Catherine, 55 F.3d 1462, 1465

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 12 of 16

USA V. DADYAN

(9th Cir. 1995), while Guidelines commentary provides that

“[l]oss shall not include . . . interest of any kind,” U.S.S.G.

§ 2B1.1 Application Note 3(D)(i). In each example, the

MVRA not only tolerates but requires a restitution

calculation that exceeds Guidelines loss.

That is not to suggest that a large discrepancy will always

be without significance. An unexplained discrepancy may,

in certain cases, facilitate a defendant’s clear-error challenge

to his or her restitution obligation—though we caution

against overreliance on a discrepancy, as it does not indicate

which figure, restitution or Guidelines loss, might be

erroneous. 6 Or, an unexplained discrepancy not rooted in

statutory differences might provide a hint that the district

court included a non-cognizable form of loss in its restitution

calculation. But to reiterate our holding: A discrepancy,

standing alone, does not establish legal error.

III. Clear-Error Challenge

We now turn to and reject Artur’s clear-error challenge.

In the district court, “[a]ny dispute as to the proper amount

or type of restitution shall be resolved by the court by the

preponderance of the evidence,” with the government

bearing “[t]he burden of demonstrating the amount of loss

sustained by a victim as a result of the offense.” 18 U.S.C.

§ 3664(e). In resolving such a dispute, the district court must

rely on “evidence that possesses sufficient indicia of

Here, for instance, the government suggested at oral argument that the

district court’s Guidelines loss calculation constituted procedural error,

before clarifying that it was not raising that argument on appeal.

“Because the government did not take an appeal” on this issue and Artur

“has nothing to gain from a higher advisory guidelines range,” we

express no view on whether the district court committed procedural

error. United States v. Dokich, 614 F.3d 314, 320 (7th Cir. 2010).

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 13 of 16

USA V. DADYAN

reliability to support its probable accuracy.” Anderson, 741

F.3d at 951–52 (citation omitted); see also United States v.

Waknine, 543 F.3d 546, 557–58 (9th Cir. 2008) (victim

affidavits in question “were too summary and too conclusory

to be sufficiently reliable in the face of [the defendant’s]

objections”). “[E]xact precision is not required and district

courts do have a degree of flexibility in accounting for a

victim’s complete losses.” Anderson, 741 F.3d at 954.

Accordingly, the district court is entitled to draw reasonable

inferences when coming to its restitution calculation. See

United States v. Walter-Eze, 869 F.3d 891, 914–15 (9th Cir.

2017).

On appeal, a factual challenge to a restitution calculation

is subject to clear-error review. Gagarin, 950 F.3d at 607.

Broad, unsupported contentions of inaccuracy will generally

not overcome that deferential standard of review. A

defendant-appellant must undermine the reliability of

specific evidence on which the district court relied or

undermine specific factual underpinnings of the calculation.

See Waknine, 543 F.3d at 557–58 (clear error to rely on

“summary and . . . conclusory” victim affidavits when

defendant challenged affidavits’ assertions); United States v.

Matsumaru, 244 F.3d 1092, 1108–09 (9th Cir. 2001) (clear

error to not discount from calculation the value that the

victim did receive in the fraudulent transaction).

Here, the district court elected not to calculate restitution

at the time of sentencing and instead ordered supplemental

briefing. The government largely rested on its prior papers

and a declaration that attached as an exhibit a table of over

one hundred fraudulently obtained loans the government

contended were connected to the conspiracy. Artur argued

in his supplemental brief that “many of th[e] loans” in the

government’s table “involv[ed] real companies” and that it

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 14 of 16

USA V. DADYAN

is “unclear whether the loans were fraudulent at all or

whether the third party simply had a [legitimate ]

connection” to one of the co-conspirators. In a written order,

the district court accepted the $17.7 million sum supported

by the government’s table. Addressing Artur’s argument,

the court explained that all the loans in the table “are

connected to the conspiracy” in “a variety of ways.” The

table includes loans that were obtained via applications

submitted in co-conspirators’ own names, using coconspirators’ known aliases, and from IP addresses traced to

co-conspirators’ homes. Proceeds from included loans were

traced to bank accounts and entities controlled by coconspirators. And the loans included in the table supported

the bank and wire fraud counts on which the jury convicted.

On appeal, Artur again suggests in passing that it is

“unclear” whether some loans included in the restitution

amount were “fraudulent at all” and described the

government’s table as resting on “cryptic summaries that did

not explain [the loans’] illegality.” Artur does not identify

any particular loans that he thinks were legitimate; nor does

he identify which particular “summaries” are so “cryptic”

that the loans they describe cannot be connected to the

conspiracy. Moreover, Artur does not challenge any of the

district court’s detailed factual findings that connected the

loans in the table to the conspiracy. Accordingly, Artur fell

far short of establishing that the district court clearly erred in

calculating restitution.

IV. Due Process and Jury-Trial Right

Artur argues that his Fifth and Sixth Amendment rights

to due process and a jury trial require that a jury (not a district

judge) find all facts underpinning restitution beyond a

reasonable doubt (not by a preponderance of the evidence).

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 15 of 16

USA V. DADYAN

Artur concedes that our precedent forecloses this argument,

and he raises it before this panel only to preserve it. See

United States v. George, 949 F.3d 1181, 1188 (9th Cir.

2020); United States v. Green, 722 F.3d 1146, 1148–51 (9th

Cir. 2013).

V. Joint and Several Liability

Vahe requests a limited remand instructing the district

court to amend his judgment and commitment order to

reflect that his restitution obligation runs jointly and

severally with that of his trial co-defendants. The MVRA

provides the district court with two options where it “finds

that more than 1 defendant has contributed to the loss of a

victim”: The “court may make each defendant liable for

payment of the full amount of restitution or may apportion

liability among the defendants.” 18 U.S.C. § 3664(h)

(emphasis added). Here, the district court determined in an

order addressing the restitution obligations of four of Vahe’s

co-defendants that joint and several liability is appropriate.

The judgment and commitment order for each of those four

defendants further specifies that their restitution obligations

run jointly and severally. Yet Vahe’s judgment and

commitment order does not so specify. The government

concedes on appeal that Vahe’s restitution obligation runs

jointly and severally and that a limited remand would be

appropriate. Accordingly, we remand Vahe’s case on this

narrow ground and instruct the district court to amend

Vahe’s judgment and commitment order to specify, as

everyone agrees, that his restitution obligation runs jointly

and severally with those of his four trial co-defendants.

CONCLUSION

For the above reasons, we AFFIRM Vahe’s and Artur’s

restitution obligations, except that we VACATE AND

Case: 21-50237, 08/07/2023, ID: 12768903, DktEntry: 99-1, Page 16 of 16

USA V. DADYAN

REMAND for the district court to amend Vahe’s judgment

and commitment order to specify that his obligation runs

jointly and severally. We address in separately filed

memorandum dispositions Vahe and Artur’s arguments

regarding their jury convictions and Artur’s arguments

regarding his sentencing.

APPENDIX B

Case: 21-50237, 08/07/2023, ID: 12768906, DktEntry: 100-1, Page 1 of 4

FILED

NOT FOR PUBLICATION

AUG 7 2023

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

U.S. COURT OF APPEALS

21-50237

D.C. No.

2:20-cr-00579-SVW-8

MEMORANDUM*

VAHE DADYAN,

Defendant-Appellant.

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 Vahe Dadyan of various offenses stemming from an eightperson 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.

Case: 21-50237, 08/07/2023, ID: 12768906, DktEntry: 100-1, Page 2 of 4

Vahe argues that his convictions are not supported by sufficient evidence.1 We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we review “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). We affirm Vahe’s jury convictions.2

A rational jury could have convicted Vahe 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

conspirators and details or participated in all the conspiracy’s dealings.” United

States v. Jaimez, 45 F.4th 1118, 1123 (9th Cir. 2022). Here, evidence shows that

Vahe worked in tandem with co-conspirator Tamara Dadyan to submit a $157,500

loan application with false payroll information for his business, Voyage Limo.

Voyage Limo had, in fact, no payroll activity, and the false information reported on

Because Vahe shares the same last name as one of his co-conspirators,

we refer to all defendants by their first names.

In a separately filed opinion, we affirm Vahe’s restitution obligation,

except that we remand for Vahe’s judgment and commitment order to be amended

to reflect that his restitution obligation runs jointly and severally with those of his

trial co-defendants.

Case: 21-50237, 08/07/2023, ID: 12768906, DktEntry: 100-1, Page 3 of 4

Vahe’s application exactly matched that on other applications submitted by coconspirators.

A rational jury could have convicted Vahe for conspiracy to commit

money laundering (Count 26). See 18 U.S.C. § 1956(h). Evidence shows that the

$157,500 from the Voyage Limo loan was deposited in a bank account that Vahe

controlled. Tamara texted Richard Ayvazyan, another co-conspirator, to “send the

account number again so I have [Artur Ayvazyan, another co-conspirator] go deposit

the 157k Vahe.” All but $2,500 of that sum was then transferred with the false

description, “payroll,” to a Runyan Tax Service account controlled by Richard. That

money was then transferred to an escrow company for the purchase of a house. Text

messages between Richard and Tamara then contemplate paying at least $50,000 to

Vahe. And bank records show two $25,000 payments to one of Vahe’s business

accounts.

A rational jury could have convicted Vahe, pursuant to Pinkerton, for

bank and wire fraud based on acts taken by his co-conspirators (Counts 8–12, 19–

20). See 18 U.S.C. §§ 1343–1344; Pinkerton v. United States, 328 U.S. 640, 647–

48 (1946) (a defendant is liable for offenses committed by co-conspirators that are

“in furtherance of the conspiracy,” “within the scope” of the conspiracy, and

“reasonably forsee[able]”). On appeal, Vahe does not contend that Pinkerton’s

requirements are not met—he makes only the threshold argument that because “he

Case: 21-50237, 08/07/2023, ID: 12768906, DktEntry: 100-1, Page 4 of 4

is not guilty of conspiracy, then he cannot be guilty of any of these [Pinkerton-based]

counts.” Because we affirm his conspiracy convictions (supra sections 1 and 2), we

also affirm his Pinkerton-based convictions.

AFFIRMED in part; VACATED AND REMANDED in part (as explained

in the separately filed opinion).

APPENDIX C

Case: 21-50302, 08/07/2023, ID: 12768909, DktEntry: 104-1, Page 1 of 9

FILED

NOT FOR PUBLICATION

AUG 7 2023

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ARTUR AYVAZYAN, AKA Arthur

Ayvazyan,

No.

U.S. COURT OF APPEALS

21-50302

D.C. Nos.

2:20-cr-00579-SVW-3

2:20-cr-00579-SVW

MEMORANDUM*

Defendant-Appellant.

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 eightperson 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.

Case: 21-50302, 08/07/2023, ID: 12768909, DktEntry: 104-1, Page 2 of 9

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).

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

Because Artur shares the same last name as one of his co-conspirators,

we refer to all defendants by their first names.

In a separately filed opinion, we affirm Artur’s restitution obligation.

Case: 21-50302, 08/07/2023, ID: 12768909, DktEntry: 104-1, Page 3 of 9

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.

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).

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,

Case: 21-50302, 08/07/2023, ID: 12768909, DktEntry: 104-1, Page 4 of 9

965 F.3d at 980–81 (“viewing the evidence in the light most favorable to the

prosecution”).

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).

The district court did not plainly err by finding the facts underpinning

Case: 21-50302, 08/07/2023, ID: 12768909, DktEntry: 104-1, Page 5 of 9

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).

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

One of Artur’s co-defendants requested application of the clear-andconvincing 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).

Case: 21-50302, 08/07/2023, ID: 12768909, DktEntry: 104-1, Page 6 of 9

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).

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”).

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

Case: 21-50302, 08/07/2023, ID: 12768909, DktEntry: 104-1, Page 7 of 9

“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”).

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

Case: 21-50302, 08/07/2023, ID: 12768909, DktEntry: 104-1, Page 8 of 9

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 moneylaundering 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

Case: 21-50302, 08/07/2023, ID: 12768909, DktEntry: 104-1, Page 9 of 9

the district court may consider.”).

AFFIRMED in part; VACATED AND REMANDED in part.

APPENDIX D

Case: 21-50237, 10/25/2023, ID: 12814947, DktEntry: 104, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

OCT 25 2023

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

21-50237

D.C. No.

2:20-cr-00579-SVW-8

Central District of California,

Los Angeles

VAHE DADYAN,

ORDER

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

21-50302

D.C. Nos.

2:20-cr-00579-SVW-3

2:20-cr-00579-SVW

ARTUR AYVAZYAN, AKA Arthur

Ayvazyan,

Defendant-Appellant.

Before: M. SMITH and DESAI, Circuit Judges, and AMON,* District Judge.

Appellants’ petition for panel rehearing (No. 21-50237, Dkt. No. 103; No. 2150302, Dkt. No. 107) is DENIED.

IT IS SO ORDERED.

The Honorable Carol Bagley Amon, United States District Judge for

the Eastern District of New York, sitting by designation.

APPENDIX E

18 USCS § 3663A

Current through Public Law 117-130, approved June 6, 2022.

United States Code Service > TITLE 18. CRIMES AND CRIMINAL PROCEDURE (§§ 1 — 6005) > Part II.

Criminal Procedure (Chs. 201 — 238) > CHAPTER 232. Miscellaneous Sentencing Provisions (§§ 3661 —

3673)

§ 3663A. Mandatory restitution to victims of certain crimes

(a)

(1) Notwithstanding any other provision of law, when sentencing a defendant

convicted of an offense described in subsection (c), the court shall order, in

addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other

penalty authorized by law, that the defendant make restitution to the victim of the

offense or, if the victim is deceased, to the victim’s estate.

(2) For the purposes of this section, the term “victim” means a person directly

and proximately harmed as a result of the commission of an offense for which

restitution may be ordered including, in the case of an offense that involves as an

element a scheme, conspiracy, or pattern of criminal activity, any person directly

harmed by the defendant’s criminal conduct in the course of the scheme,

conspiracy, or pattern. In the case of a victim who is under 18 years of age,

incompetent, incapacitated, or deceased, the legal guardian of the victim or

representative of the victim’s estate, another family member, or any other person

appointed as suitable by the court, may assume the victim’s rights under this

section, but in no event shall the defendant be named as such representative or

guardian.

(3) The court shall also order, if agreed to by the parties in a plea agreement,

restitution to persons other than the victim of the offense.

(b) The order of restitution shall require that such defendant—

(1) in the case of an offense resulting in damage to or loss or destruction of

property of a victim of the offense—

(A) return the property to the owner of the property or someone designated

by the owner; or

(B) if return of the property under subparagraph (A) is impossible,

impracticable, or inadequate, pay an amount equal to—

(i) the greater of—

Verna Wefald

000001

Page 2 of 177

18 USCS § 3663A

(I) the value of the property on the date of the damage, loss, or

destruction; or

(II) the value of the property on the date of sentencing, less

(ii) the value (as of the date the property is returned) of any part of the

property that is returned;

(2) in the case of an offense resulting in bodily injury to a victim—

(A) pay an amount equal to the cost of necessary medical and related

professional services and devices relating to physical, psychiatric, and

psychological care, including nonmedical care and treatment rendered in

accordance with a method of healing recognized by the law of the place of

treatment;

(B) pay an amount equal to the cost of necessary physical and occupational

therapy and rehabilitation; and

offense;

(3) in the case of an offense resulting in bodily injury that results in the death of

the victim, pay an amount equal to the cost of necessary funeral and related

services; and

(4) in any case, reimburse the victim for lost income and necessary child care,

transportation, and other expenses incurred during participation in the

investigation or prosecution of the offense or attendance at proceedings related to

the offense.

(c)

(1) This section shall apply in all sentencing proceedings for convictions of, or

plea agreements relating to charges for, any offense—

(A) that is—

(i) a crime of violence, as defined in section 16 [18 USCS § 16];

(ii) an offense against property under this title, or under section 416(a) of

the Controlled Substances Act (21 U.S.C. 856(a)), including any offense

committed by fraud or deceit;

(iii) an offense described in section 3 of the Rodchenkov Anti-Doping Act

of 2019 [21 USCS § 2402];

(iv) an offense described in section 1365 [18 USCS § 1365] (relating to

tampering with consumer products); or

Verna Wefald

000002

Page 3 of 177

18 USCS § 3663A

(v) an offense under section 670 [18 USCS § 670] (relating to theft of

medical products); and

(B) in which an identifiable victim or victims has suffered a physical injury

or pecuniary loss.

(2) In the case of a plea agreement that does not result in a conviction for an

offense described in paragraph (1), this section shall apply only if the plea

specifically states that an offense listed under such paragraph gave rise to the

plea agreement.

(3) This section shall not apply in the case of an offense described in paragraph

(1)(A)(ii) or (iii) if the court finds, from facts on the record, that—

(A) the number of identifiable victims is so large as to make restitution

impracticable; or

(B) determining complex issues of fact related to the cause or amount of the

victim’s losses would complicate or prolong the sentencing process to a

degree that the need to provide restitution to any victim is outweighed by the

burden on the sentencing process.

(d) An order of restitution under this section shall be issued and enforced in

accordance with section 3664 [18 USCS § 3664].

History

HISTORY:

Added April 24, 1996, P. L. 104-132, Title II, Subtitle A, § 204(a), 110 Stat. 1227; Oct. 17,

2000, P. L. 106-310, Div B, Title XXXVI, Subtitle A, Part I, § 3613(d), 114 Stat. 1230;

Oct. 5, 2012, P. L. 112-186, § 6, 126 Stat. 1430; Dec. 4, 2020, P.L. 116-206, § 5, 134 Stat.

1000.

Annotations

Notes

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Amendment Notes

2000.

2012.

Verna Wefald

000003

18 USCS § 3664

Current through Public Law 117-130, approved June 6, 2022.

United States Code Service > TITLE 18. CRIMES AND CRIMINAL PROCEDURE (§§ 1 — 6005) > Part II.

Criminal Procedure (Chs. 201 — 238) > CHAPTER 232. Miscellaneous Sentencing Provisions (§§ 3661 —

3673)

§ 3664. Procedure for issuance and enforcement of order of restitution

(a) For orders of restitution under this title, the court shall order the probation

officer to obtain and include in its presentence report, or in a separate report, as the

court may direct, information sufficient for the court to exercise its discretion in

fashioning a restitution order. The report shall include, to the extent practicable, a

complete accounting of the losses to each victim, any restitution owed pursuant to a

plea agreement, and information relating to the economic circumstances of each

defendant. If the number or identity of victims cannot be reasonably ascertained, or

other circumstances exist that make this requirement clearly impracticable, the

probation officer shall so inform the court.

(b) The court shall disclose to both the defendant and the attorney for the

Government all portions of the presentence or other report pertaining to the matters

described in subsection (a) of this section.

§§ 3551 et seq.], and Rule 32(c) of the Federal Rules of Criminal Procedure shall be

the only rules applicable to proceedings under this section.

(d)

(1) Upon the request of the probation officer, but not later than 60 days prior to

the date initially set for sentencing, the attorney for the Government, after

consulting, to the extent practicable, with all identified victims, shall promptly

provide the probation officer with a listing of the amounts subject to restitution.

(2) The probation officer shall, prior to submitting the presentence report under

subsection (a), to the extent practicable—

(A) provide notice to all identified victims of—

(i) the offense or offenses of which the defendant was convicted;

(ii) the amounts subject to restitution submitted to the probation officer;

Verna Wefald

000004

Page 2 of 178

18 USCS § 3664

(iii) the opportunity of the victim to submit information to the probation

officer concerning the amount of the victim’s losses;

(iv) the scheduled date, time, and place of the sentencing hearing;

(v) the availability of a lien in favor of the victim pursuant to subsection

(m)(1)(B); and

(vi) the opportunity of the victim to file with the probation officer a

separate affidavit relating to the amount of the victim’s losses subject to

restitution; and

(B) provide the victim with an affidavit form to submit pursuant to

subparagraph (A)(vi).

(3) Each defendant shall prepare and file with the probation officer an affidavit

fully describing the financial resources of the defendant, including a complete

listing of all assets owned or controlled by the defendant as of the date on which

the defendant was arrested, the financial needs and earning ability of the

defendant and the defendant’s dependents, and such other information that the

court requires relating to such other factors as the court deems appropriate.

(4) After reviewing the report of the probation officer, the court may require

additional documentation or hear testimony. The privacy of any records filed, or

testimony heard, pursuant to this section shall be maintained to the greatest

extent possible, and such records may be filed or testimony heard in camera.

(5) If the victim’s losses are not ascertainable by the date that is 10 days prior to

sentencing, the attorney for the Government or the probation officer shall so

inform the court, and the court shall set a date for the final determination of the

victim’s losses, not to exceed 90 days after sentencing. If the victim subsequently

discovers further losses, the victim shall have 60 days after discovery of those

losses in which to petition the court for an amended restitution order. Such order

may be granted only upon a showing of good cause for the failure to include such

losses in the initial claim for restitutionary relief.

(6) The court may refer any issue arising in connection with a proposed order of

restitution to a magistrate judge or special master for proposed findings of fact

and recommendations as to disposition, subject to a de novo determination of the

issue by the court.

(e) Any dispute as to the proper amount or type of restitution shall be resolved by

the court by the preponderance of the evidence. The burden of demonstrating the

amount of the loss sustained by a victim as a result of the offense shall be on the

attorney for the Government. The burden of demonstrating the financial resources of

the defendant and the financial needs of the defendant’s dependents, shall be on the

Verna Wefald

000005

Page 3 of 178

18 USCS § 3664

defendant. The burden of demonstrating such other matters as the court deems

appropriate shall be upon the party designated by the court as justice requires.

(f)

(1)

(A) In each order of restitution, the court shall order restitution to each victim

in the full amount of each victim’s losses as determined by the court and

without consideration of the economic circumstances of the defendant.

(B) In no case shall the fact that a victim has received or is entitled to receive

compensation with respect to a loss from insurance or any other source be

considered in determining the amount of restitution.

(2) Upon determination of the amount of restitution owed to each victim, the

court shall, pursuant to section 3572 [18 USCS § 3572], specify in the restitution

order the manner in which, and the schedule according to which, the restitution is

to be paid, in consideration of—

(A) the financial resources and other assets of the defendant, including

whether any of these assets are jointly controlled;

(B) projected earnings and other income of the defendant; and

dependents.

(3)

(A) A restitution order may direct the defendant to make a single, lump-sum

payment, partial payments at specified intervals, in-kind payments, or a

combination of payments at specified intervals and in-kind payments.

(B) A restitution order may direct the defendant to make nominal periodic

payments if the court finds from facts on the record that the economic

circumstances of the defendant do not allow the payment of any amount of a

restitution order, and do not allow for the payment of the full amount of a

restitution order in the foreseeable future under any reasonable schedule of

payments.

(4) An in-kind payment described in paragraph (3) may be in the form of—

(A) return of property;

(B) replacement of property; or

organization other than the victim.

(g)

Verna Wefald

000006

Page 4 of 178

18 USCS § 3664

(1) No victim shall be required to participate in any phase of a restitution order.

(2) A victim may at any time assign the victim’s interest in restitution payments

to the Crime Victims Fund in the Treasury without in any way impairing the

obligation of the defendant to make such payments.

(h) If the court finds that more than 1 defendant has contributed to the loss of a

victim, the court may make each defendant liable for payment of the full amount of

restitution or may apportion liability among the defendants to reflect the level of

contribution to the victim’s loss and economic circumstances of each defendant.

(i) If the court finds that more than 1 victim has sustained a loss requiring restitution

by a defendant, the court may provide for a different payment schedule for each

victim based on the type and amount of each victim’s loss and accounting for the

economic circumstances of each victim. In any case in which the United States is a

victim, the court shall ensure that all other victims receive full restitution before the

United States receives any restitution.

(j)

(1) If a victim has received compensation from insurance or any other source

with respect to a loss, the court shall order that restitution be paid to the person

who provided or is obligated to provide the compensation, but the restitution

order shall provide that all restitution of victims required by the order be paid to

the victims before any restitution is paid to such a provider of compensation.

(2) Any amount paid to a victim under an order of restitution shall be reduced by

any amount later recovered as compensatory damages for the same loss by the

victim in—

(A) any Federal civil proceeding; and

(B) any State civil proceeding, to the extent provided by the law of the State.

(k) A restitution order shall provide that the defendant shall notify the court and the

Attorney General of any material change in the defendant’s economic circumstances

that might affect the defendant’s ability to pay restitution. The court may also accept

notification of a material change in the defendant’s economic circumstances from

the United States or from the victim. The Attorney General shall certify to the court

that the victim or victims owed restitution by the defendant have been notified of the

change in circumstances. Upon receipt of the notification, the court may, on its own

motion, or the motion of any party, including the victim, adjust the payment

schedule, or require immediate payment in full, as the interests of justice require.

(l) A conviction of a defendant for an offense involving the act giving rise to an

order of restitution shall estop the defendant from denying the essential allegations

Verna Wefald

000007

Page 5 of 178

18 USCS § 3664

of that offense in any subsequent Federal civil proceeding or State civil proceeding,

to the extent consistent with State law, brought by the victim.

(m)

(1)

(A)

(i) An order of restitution may be enforced by the United States in the

manner provided for in subchapter C of chapter 227 and subchapter B of

chapter 229 of this title [18 USCS §§ 3571 et seq. and 3611 et seq.]; or

(ii) by all other available and reasonable means.

(B) At the request of a victim named in a restitution order, the clerk of the

court shall issue an abstract of judgment certifying that a judgment has been

entered in favor of such victim in the amount specified in the restitution order.

Upon registering, recording, docketing, or indexing such abstract in

accordance with the rules and requirements relating to judgments of the court

of the State where the district court is located, the abstract of judgment shall

be a lien on the property of the defendant located in such State in the same

manner and to the same extent and under the same conditions as a judgment

of a court of general jurisdiction in that State.

(2) An order of in-kind restitution in the form of services shall be enforced by

the probation officer.

(n) If a person obligated to provide restitution, or pay a fine, receives substantial

resources from any source, including inheritance, settlement, or other judgment,

during a period of incarceration, such person shall be required to apply the value of

such resources to any restitution or fine still owed.

(o) A sentence that imposes an order of restitution is a final judgment

notwithstanding the fact that—

(1) such a sentence can subsequently be—

(A) corrected under Rule 35 of the Federal Rules of Criminal Procedure and

section 3742 [18 USCS § 3742] of chapter 235 of this title;

(B) appealed and modified under section 3742 [18 USCS § 3742];

(D) adjusted under section 3664(k), 3572, or 3613A [18 USCS § 3664(k),

3572, or 3613A]; or

(2) the defendant may be resentenced under section 3565 or 3614 [18 USCS §

3565 or 3614].

Verna Wefald

000008

Page 6 of 178

18 USCS § 3664

(p) Nothing in this section or sections 2248, 2259, 2264, 2327, 3663, and 3663A

[18 USCS §§ 2248, 2259, 2264, 2327, 3663, and 3663A] and arising out of the

application of such sections, shall be construed to create a cause of action not

otherwise authorized in favor of any person against the United States or any officer

or employee of the United States.

History

HISTORY:

Added Oct. 12, 1982, P. L. 97-291, § 5(a), 96 Stat. 1255; Oct. 12, 1984, P. L. 98-473, Title

II, Ch II, § 212(a)(1), 98 Stat. 1987; Nov. 29, 1990, P. L. 101-647, Title XXXV, § 3596,

104 Stat. 4931; April 24, 1996, P. L. 104-132, Title II, Subtitle A, § 206(a), 110 Stat. 1232;

Nov. 2, 2002, P. L. 107-273, Div B, Title IV, § 4002(e)(1), 116 Stat. 1810.

Annotations

Notes

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Effective date of section:

Amendment Notes

1984.

1990.

1996.

2002.

Other provisions:

Effective date of section:

This section became effective upon enactment, as provided by § 9(a) of Act Oct. 12, 1982,

P. L. 97-291, which appears as 18 USCS § 1512 note.

Amendment Notes

Verna Wefald

000009

18 USCS Appx § 5E1.1

Current through Public Law 117-130, approved June 6, 2022.

United States Code Service > TITLE 18. CRIMES AND CRIMINAL PROCEDURE (§§ 1 — 6005) > 18

USCS appendix > SENTENCING GUIDELINES FOR THE UNITED STATES COURTS > CHAPTER

FIVE. Determining the Sentence > Part E. Restitution, Fines, Assessments, Forfeitures

§ 5E1.1. Restitution

(a) In the case of an identifiable victim, the court shall—

(1) enter a restitution order for the full amount of the victim’s loss, if such order

is authorized under 18 U.S.C. § 1593, § 2248, § 2259, § 2264, § 2327, § 3663, or

§ 3663A, or 21 U.S.C. § 853(q); or

(2) impose a term of probation or supervised release with a condition requiring

restitution for the full amount of the victim’s loss, if the offense is not an offense

for which restitution is authorized under 18 U.S.C. § 3663(a)(1) but otherwise

meets the criteria for an order of restitution under that section.

(b) Provided, that the provisions of subsection (a) do not apply—

(1) when full restitution has been made; or

(2) in the case of a restitution order under 18 U.S.C. § 3663; a restitution order

under 18 U.S.C. § 3663A that pertains to an offense against property described in

18 U.S.C. § 3663A(c)(1)(A)(ii); or a condition of restitution imposed pursuant to

subsection (a)(2) above, to the extent the court finds, from facts on the record,

that (A) the number of identifiable victims is so large as to make restitution

impracticable; or (B) determining complex issues of fact related to the cause or

amount of the victim’s losses would complicate or prolong the sentencing

process to a degree that the need to provide restitution to any victim is

outweighed by the burden on the sentencing process.

a fine, the court shall order that any money paid by the defendant shall first be

applied to satisfy the order of restitution.

(d) In a case where there is no identifiable victim and the defendant was convicted

under 21 U.S.C. § 841, § 848(a), § 849, § 856, § 861, or § 863, the court, taking into

consideration the amount of public harm caused by the offense and other relevant

factors, shall order an amount of community restitution not to exceed the fine

imposed under § 5E1.2.

Verna Wefald

000010

Page 2 of 8

18 USCS Appx § 5E1.1

(e) A restitution order may direct the defendant to make a single, lump sum

payment, partial payments at specified intervals, in-kind payments, or a combination

of payments at specified intervals and in-kind payments. See 18 U.S.C. §

3664(f)(3)(A). An in-kind payment may be in the form of (1) return of property; (2)

replacement of property; or (3) if the victim agrees, services rendered to the victim

or to a person or organization other than the victim. See 18 U.S.C. § 3664(f)(4).

(f) A restitution order may direct the defendant to make nominal periodic payments

if the court finds from facts on the record that the economic circumstances of the

defendant do not allow the payment of any amount of a restitution order and do not

allow for the payment of the full amount of a restitution order in the foreseeable

future under any reasonable schedule of payments.

(g) Special Instruction

(1) This guideline applies only to a defendant convicted of an offense committed

on or after November 1, 1997. Notwithstanding the provisions of § 1B1.11 (Use

of Guidelines Manual in Effect on Date of Sentencing), use the former § 5E1.1

(set forth in Appendix C, amendment 571) in lieu of this guideline in any other

case.

Commentary

Application Note:

1. The court shall not order community restitution under subsection (d) if it appears

likely that such an award would interfere with a forfeiture under Chapter 46 or 96 of

Title 18, United States Code, or under the Controlled Substances Act (21 U.S.C. §

801 et seq.). See 18 U.S.C. § 3663(c)(4).

Furthermore, a penalty assessment under 18 U.S.C. § 3013 or a fine under

Subchapter C of Chapter 227 of Title 18, United States Code, shall take precedence

over an order of community restitution under subsection (d). See 18 U.S.C. §

3663(c)(5).

Background: Section 3553(a)(7) of Title 18, United States Code, requires the court,

“in determining the particular sentence to be imposed,” to consider “the need to

provide restitution to any victims of the offense.” Orders of restitution are

authorized under 18 U.S.C. §§ 1593, 2248, 2259, 2264, 2327, 3663, and 3663A, and

21 U.S.C. § 853(q). For offenses for which an order of restitution is not authorized,

restitution may be imposed as a condition of probation or supervised release.

Subsection (d) implements the instruction to the Commission in section 205 of the

Antiterrorism and Effective Death Penalty Act of 1996. This provision directs the

Commission to develop guidelines for community restitution in connection with

Verna Wefald

000011

Page 3 of 8

18 USCS Appx § 5E1.1

certain drug offenses where there is no identifiable victim but the offense causes

“public harm.”

To the extent that any of the above-noted statutory provisions conflict with the

provisions of this guideline, the applicable statutory provision shall control.

History

HISTORY:

Effective November 1, 1987. Amended effective January 15, 1988 (see Appendix C,

amendment 53); November 1, 1989 (see Appendix C, amendments 278, 279, and 302);

November 1, 1991 (see Appendix C, amendment 383); November 1, 1993 (see Appendix

C, amendment 501); November 1, 1995 (see Appendix C, amendment 530); November 1,

1997 (see Appendix C, amendment 571); May 1, 2001 (see Appendix C, amendment 612);

November 1, 2001 (see Appendix C, amendment 627).

Annotations

NOTES TO DECISIONS

1.Propriety of restitution order

2.Ability to pay restitution

3.Amount of restitution

4.Charitable donation

1. Propriety of restitution order

Case would be remanded where district court, which found that defendant could not pay

fine and imposed restitution, stated in its order that it was “required” to impose restitution,

since under 18 USCS § 3663 and § 5E1.1, district court is not required to order restitution,

and record did not contain any on-the-record consideration of 18 USCS § 3664 factors,

which indicated that court may not have considered factors. United States v. Sanders, 95

F.3d 449, 1996 FED App. 0299P, 45 Fed. R. Evid. Serv. (CBC) 597 (6th Cir. 1996).

Defendant who embezzled money when he was a government employee was properly

ordered to pay restitution pursuant to § 5E1.1 and 18 USCS § 3664, even though

government had seized embezzled money in civil in rem proceeding, since full restitution

had not been made in civil case because case had not been completed, final judgment had

Verna Wefald

000012

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.