United States v. Odachyan

Judicial statements which respond to arguments made by the defendant in the manner of a “general frustration” that do not represent their own personal bias are not unconstitutional and not enough to make a fair judgment impossible; and, a defendant may waive his right to appeal by a knowing and voluntary waiver.

Petros Odachyan pled guilty under a plea agreement to conspiracy to commit health care fraud in violation of 18 U.S.C. § 1347 by participating in a scheme to defraud the federal Medicare program. The plea agreement included Odachyan’s waiver of his right to appeal, provided that the sentence was within the statutory maximum, was not unconstitutional, and that the sentence imposed by the court was “within or below the range corresponding to a total offense level of 21, and the applicable criminal history category.” At the sentencing hearing the judge made a statement that Odachyan alleges violated his constitutional rights. The pertinent portion of the judge’s statement is, “I am in constant wonder and amazement why it is so many people come to this country seeking a better life and then prey on this government’s institutions as their own personal piggybanks.” The district court concluded that the total offense level was 19 and that Odachyan’s criminal history places him in a category II. Therefore, he was sentenced to 51 months imprisonment, followed by three years of supervised release, and was ordered to pay more than $600,000 restitution. The Ninth Circuit agreed with the district court that a statement that is critical or disapproving of, or even hostile to counsel, the parties or their cases, ordinarily do not support a bias or partiality. Therefore, the statement by the judge at Odachyan’s sentencing hearing fell within this realm and was not a constitutional error. Additionally, the panel agreed Odachyan indicated prior to waiving his right to appeal that he understood and agreed to the waiver. The panel noted that Odachyan’s plea agreement including his waiver of his right to appeal explicitly set out certain exceptions, and his arguments did not fall into any of those exceptions. AFFIRMED in part, DISMISSED in part.