United States v. Joe Nersesyan

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 28, 2019
• Docket: 17-10511
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 28 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10511

Plaintiff-Appellee, D.C. No. 2:16-cr-00108-GEB-1 v.

JOE NERSESYAN, AKA Ovsep MEMORANDUM* Nersesyan,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted June 14, 2019 San Francisco, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and RAKOFF,** District Judge.

Defendant Joe Nersesyan pleaded guilty to unlawfully possessing a machine

gun and was sentenced to 51 months in prison. On appeal, he contests the district

court’s application of a higher base offense level under U.S.S.G. § 2K2.1(a)(4)(B)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. for being a “prohibited person” in possession of a firearm. See United States v.

Purdy, 264 F.3d 809, 813 (9th Cir. 2001) (explaining that an unlawful drug user is

a person who “took drugs with regularity, over an extended period of time, and

contemporaneously with his . . . possession of a firearm”). He contends that the

record does not establish that he was using drugs at the time of the weapon

possession. We affirm.

The record supports the district court’s finding that Nersesyan was both an

unlawful drug user and a drug addict when he was charged with possessing a

machine gun. This renders him a “prohibited person” within the meaning of the

sentencing guidelines. Police officers found Nersesyan’s unlawful machine gun on

October 26, 2015, inside a car he had been borrowing for more than two months.

In that car, the officers also found methamphetamine and recently used drug

paraphernalia that had been within Nersesyan’s reach. About six months later, in

May 2016, Nersesyan admitted to probation that he had a history of addiction that

led him to a relapse earlier in 2015, and that he was currently taking unprescribed

opiates daily. That same month, he tested positive for using methadone. A few

weeks after that, he stated in a call from jail that he “needs meth,” “has a problem,”

and has “been using heroin.”

2 Given the evidence of ongoing drug use from 2015 through June 2016, as

well as Nersesyan’s recurrent issues with drug addiction, there was more than a

preponderance of evidence supporting the district court’s conclusion that

Nersesyan was both an unlawful drug user and a drug addict when he possessed the

machine gun. Evidence that he was using drugs at the exact moment he was found

with the gun was not required.

AFFIRMED.