UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-55515

Plaintiff-Appellee, D.C. No. 2:20-cv- 07717-VAP v. ARTAK OVSEPIAN, OPINION

Defendant-Appellant.

On Remand from the United States Supreme Court

Argued and Submitted February 5, 2024 Pasadena, California

Filed September 3, 2024 Before: Kim McLane Wardlaw, Michelle T. Friedland, and Jennifer Sung, Circuit Judges.

Opinion by Judge Wardlaw 2 USA V. OVSEPIAN

SUMMARY *

28 U.S.C. § 2255

On remand from the Supreme Court for further consideration in light of Dubin v. United States, 599 U.S. 110 (2023), the panel reversed the district court’s denial of Artak Ovsepian’s 28 U.S.C. § 2255 motion and remanded. Ovsepian contended that he is factually innocent of aggravated identity theft. The panel held that a petitioner who was convicted at trial under a divisible statute must demonstrate actual innocence only with respect to the prong(s) for which the petitioner was actually tried and convicted. Because the offense for which Ovsepian was actually tried and convicted was unlawful possession of another’s means of identification during and in relation to a conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 1028A(a)(1), he need only show innocence as to “possession” to succeed in his § 2255 motion. In light of Dubin, the panel excused Ovseptian’s procedural default and concluded that the jury instructions used in his trial were erroneous because they did not convey that his “possession” of another’s identifying information must have been at the crux of the healthcare fraud to sustain a conviction of aggravated identity theft. Because no jury so instructed could find Ovsepian guilty of that offense on this record, the panel reversed the denial of the § 2255 motion * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. OVSEPIAN 3

and remanded with instructions to vacate Ovsepian’s conviction and sentence on the aggravated identity theft count.

COUNSEL Faraz R. Mohammadi (argued), Assistant United States Attorney, United States Department of Justice, Office of the United States Attorney, Santa Ana, California; Bram M. Alden, Assistant United States Attorney, Chief, Criminal Appeals Section; E. Martin Estrada, United States Attorney; United States Department of Justice, Office of the United States Attorney, Los Angeles, California; Benjamin R. Barron, Keller/Anderle LLP, Irvine, California; for Plaintiff- Appellee. Benjamin L. Coleman (argued), Benjamin L. Coleman Law PC, San Diego, California, for Defendant-Appellant. 4 USA V. OVSEPIAN

OPINION WARDLAW, Circuit Judge:

Artak Ovsepian appeals from the district court’s denial of his 28 U.S.C. § 2255 motion. He contends that he is factually innocent of aggravated identity theft, a crime for which he was prosecuted and convicted at trial. Our court previously denied Ovsepian’s request for a certificate of appealability, and Ovsepian petitioned the Supreme Court for a writ of certiorari of that denial. While Ovsepian’s petition was pending, the Supreme Court issued its decision in Dubin v. United States, 599 U.S. 110 (2023), which interpreted the aggravated identity theft statute. The Court then granted Ovsepian’s petition, vacated our denial of a certificate of appealability, and remanded the matter for further consideration in light of Dubin. Ovsepian v. United States, 143 S. Ct. 2634 (2023). In light of Dubin, we excuse Ovsepian’s procedural default and conclude that the jury instructions used in his trial were erroneou