Opinion
No. 17-10511
06-28-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOE NERSESYAN, AKA Ovsep Nersesyan, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 2:16-cr-00108-GEB-1 MEMORANDUM 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.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. --------
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) 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."
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.