United States v. Roshanak Khadem

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2023
• Docket: 22-50245
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50245

Plaintiff-Appellee, D.C. No. 2:18-cr-00288-SVW-1 v.

ROSHANAK KHADEM, AKA Roxanne MEMORANDUM* Khadem, AKA Roxy Khadem,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Submitted November 16, 2023** Pasadena, California

Before: RAWLINSON, HURWITZ, and OWENS, Circuit Judges.

Roshanak Khadem challenges her sentence for conspiracy to commit

healthcare fraud. As the parties are familiar with the facts, we do not recount them

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). here. 1 We affirm.

Khadem did not object to her sentence below but now argues that the

sentencing judge failed to “adequately explain” it. Gall v. United States, 552 U.S.

38, 51 (2007). “Where a procedural sentencing error is raised for the first time on

appeal, it is reviewed for plain error.” United States v. Rangel, 697 F.3d 795, 800

(9th Cir. 2012) (citation omitted). The sentencing judge’s explanation of

Khadem’s sentence was not plainly erroneous, particularly given that the

sentence’s one-month upward departure from the Guidelines range was “minor.”

Gall, 552 U.S. at 50 (“[A] major departure [from the Guidelines range] should be

supported by a more significant justification than a minor one.”). The sentencing

judge “set forth enough” to show that he “considered the parties’ arguments and

ha[d] a reasoned basis for exercising his own legal decisionmaking authority.”

Rita v. United States, 551 U.S. 338, 356 (2007) (citation omitted). He sentenced

Khadem after a two-day sentencing hearing, explained the variance between the

Guidelines range and the sentence, and referenced Khadem’s offense, history, and

characteristics.

Despite this adequate justification, Khadem contends that the sentencing

1 Khadem’s Motion to Strike Government’s Answering Brief, filed May 11, 2023, is DENIED. Khadem has made no showing that the government violated Federal Rule of Appellate Procedure 28 or its obligations under the plea agreement by citing the Presentence Investigation Report in its brief.

2 judge did not explain the components of her sentence. To the extent that this

argument is a disguised attempt to challenge the sentencing judge’s calculation of

the Guidelines range, it fails. At the sentencing hearing, defense counsel agreed

that the Guidelines range was calculated correctly given the sentencing judge’s

findings. On appeal, Khadem alleges that the sentencing judge never made those

findings. The record belies this assertion. The sentencing judge determined

Khadem’s criminal history category, the loss amount, and the applicability of the

leadership-role enhancement and did not plainly err in doing so.

AFFIRMED.