United States v. Nelli Kesoyan

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 24, 2019
• Docket: 18-10170
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10170

Plaintiff-Appellee, D.C. No. 2:15-cr-00236-GEB-1 v.

NELLI KESOYAN, MEMORANDUM*

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 11, 2019 San Francisco, California

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

Nelli Kesoyan challenges her sentence following her conviction for making

false entries in government records and conspiring to make false statements to

influence, obstruct, and impede a pending agency proceeding in violation of 18

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. U.S.C. §§ 371, 2073. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Kesoyan contends that the district court erred in applying enhancements

pursuant to U.S.S.G. §§ 2J1.2(b)(3) and 3B1.3 for obstruction of justice and abuse

of a position of trust. We review a district court’s application of the Sentencing

Guidelines to the facts of the case for abuse of discretion. United States v. Laurienti,

731 F.3d 967, 973 (9th Cir. 2013). Because Kesoyan did not object below to the

district court’s application of the enhancement under § 3B1.3, we review that

enhancement for plain error. See United States v. Hammons, 558 F.3d 1100, 1103

(9th Cir. 2009).

The district court did not abuse its discretion in applying the obstruction of

justice enhancement. The Sentencing Guidelines provides for a two-level

enhancement for obstruction of justice if the offense “involved the selection of any

essential or especially probative record . . . to destroy or alter[.]” U.S.S.G.

§ 2J1.2(b)(3)(B). In applying the enhancement, the district court relied on United

States v. Mathews, 874 F.3d 698 (11th Cir. 2017), which it found both factually

analogous and legally persuasive. We similarly find the case persuasive. In

Mathews, the Eleventh Circuit held application of the enhancement was proper

where a Veterans Affairs (“VA”) hospital nurse falsified entries in a patient’s

medical chart that were essential “to the VA’s investigation into the [p]atient’s

quality of care and would furnish, establish, or contribute toward proof (i.e., be

2 18-10170 especially probative) on that point.” Mathews, 874 F.3d at 705 (original alterations

and internal quotation omitted). Kesoyan similarly falsified records “in order to

derail and deceive [an] investigation.” Id.

Here, Kesoyan, a Social Security Administration (“Administration”) claims-

representative, submitted multiple letters which purported to be from the

Administration supporting Vanik Movseseyan’s naturalization application. In an

effort to help Movsesyan have his naturalization claims resolved in Sacramento,

which purportedly has a faster processing time than elsewhere in California, the

letters falsely listed Movsesyan’s address as one in Sacramento. Anticipating that

United States Citizenship and Immigration Services (“USCIS”) investigators would

verify the Sacramento address, Kesoyan modified Administration records to

corroborate the letters and thwart USCIS investigators from determining

Movsesyan’s true address.

Additionally, the district court did not plainly err in finding that Kesoyan’s

position at the Administration constituted a position of trust. For the abuse of public

trust enhancement to apply, the defendant must occupy a position of trust and use

that position to significantly facilitate the commission or concealment of a crime.

U.S.S.G. § 3B1.3. A position of trust is “characterized by professional or managerial

discretion (i.e., substantial discretionary judgment that is ordinarily given

considerable deference). Persons holding such positions ordinarily are subject to

3 18-10170 significantly less supervision than employees whose responsibilities are primarily

non-discretionary in nature.” U.S.S.G. § 3B1.3, cmt. n.1; see also United States v.

Adebimpe, 819 F.3d 1212, 1217 (9th Cir. 2016), cert. denied, 137 S. Ct. 317 (2016).

Here, as a claims representative, Kesoyan acted with discretion in

“adjudicat[ing] and authoriz[ing] entitlement or disallowance actions[,]”

“develop[ing], investigat[ing], and resolv[ing] claims[,]” “conduct[ing] inquiries

and or interviews to obtain, clarify, and verify information[,]” and “examin[ing]

evidence to evaluate its validity and acceptability in establishing entitlement of

benefits[.]” Given the amount of discretion inherent to Kesoyan’s role, we cannot

say application of the enhancement constituted error, let alone plain error.

AFFIRMED.

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