United States v. Ohanes Haladjian , 603 F. App'x 561 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50409
Plaintiff - Appellee, D.C. No. 8:12-cr-00172-CJC-1
v.
MEMORANDUM*
OHANES HAMPARSOUM
HALADJIAN, a.k.a. Ohanes H.O.
Haladjian,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted November 12, 2014**
Before: HUG, FARRIS, and CANBY, Circuit Judges.
Ohanes Haladjian appeals from the district court’s judgment and challenges
the 70-month sentence imposed following his guilty-plea conviction for possession
of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Haladjian contends that the district court erred at sentencing when it imposed an
adjustment for obstruction of justice. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
Haladjian contends that the district court violated Federal Rule of Criminal
Procedure 32 by failing to make adequate findings regarding who purchased a one-
way airline ticket to Jordan and who checked in for that flight. Because he did not
object on these grounds in the district court, we review for plain error. See United
States v. Christensen, 732 F.3d 1094, 1101 (9th Cir. 2103). Haladjian never
objected to any of the facts set forth in the presentence reports (“PSRs”) relating to
the obstruction of justice issue, including the assertions that he purchased the plane
ticket, possessed the plane ticket, and checked in for the flight. Therefore, Rule 32
did not apply and the district court did not plainly err. See Christensen, 732 F.3d at
1102; United States v. Petri, 731 F.3d 833, 840-41 (9th Cir. 2013).
In addition, Haladjian contends that the district court clearly erred because
its acceptance of the obstruction-related allegations in the presentence reports and
in the government’s position paper was not supported by inferences that reasonably
might be drawn from the record. The record shows that there was sufficient
evidence to support a conclusion that Haladjian attempted to leave the country. He
did not dispute the amended PSRs’ statements that he possessed the plane ticket to
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Jordan and had checked in for the flight. The court therefore was permitted to
accept these facts as true. See United States v. Charlesworth, 217 F.3d 1155,
1160-61 (9th Cir. 2000) (a sentencing court may rely only on an unchallenged PSR
to find that the facts underlying a sentence enhancement have been established).
Furthermore, the government provided evidence of a plane ticket that was in
Haladjian’s name and also provided evidence of the check in. Halajian presented
no evidence to undermine the inference that he played a role in obtaining the ticket
and checking in for the flight.
Haladjian also contends that, even if the facts underlying the court’s
obstruction of justice ruling are true, it was legal error to apply the obstruction of
justice enhancement under U.S.S.G. § 3C1.1. First, he argues that, because he was
not in a custodial facility such as a treatment center, halfway house, or correctional
facility, while he was on pre-trial release he was not in “custody” for purposes of
application note 4 to § 3C1.1 and therefore did not attempt to escape. He is
incorrect. For purposes of the obstruction guideline, “‘custody’ need only involve
some degree of official control over a defendant . . . the defendant must have been
submitted, willfully or otherwise, to the due process of law before the obstruction
adjustment can obtain.” United States v. Draper, 996 F.2d 982, 985-86 (9th Cir.
1993). Thus, “absconding from pretrial release amounts to escape from custody
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under the Sentencing Guidelines.” Id. at 987; see also United States v. Manning,
704 F.3d 584, 585, 587 (9th Cir. 2012) (holding that obstruction enhancement
applied because defendant fled to Mexico while on pretrial release pending a
voluntary surrender).
Second, Haladjian argues that his conduct did not constitute an escape or an
attempt to escape and that the obstruction enhancement therefore does not apply.
The obstruction of justice enhancement applies when a “defendant wilfully
obstructed or impeded, or attempted to obstruct or impede, the administration of
justice with respect to . . . sentencing.” U.S.S.G. § 3C1.1. “It is irrelevant whether
justice is actually obstructed or impeded. . . . It is sufficient that the conduct in
question has the potential for obstructing the investigation, prosecution, or
sentencing of the instant offense.” Draper, 996 F.2d at 986. Because Haladjian
possessed a one-way airline ticket to Jordan and checked in for the flight, law
enforcement and the district court had to take additional measures to ensure that he
appeared for sentencing. Thus, at a minimum, Haladjian potentially impeded the
administration of justice. See Draper, 996 F.2d at 984, 986 n.4 (affirming
obstruction enhancement and noting that additional work was required by Pretrial
Services, the district court, and law enforcement where defendant absconded while
on pretrial release and arrest was required to ensure his appearance for sentencing);
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cf. United States v. Jackson, 985 F.2d 576 (9th Cir. 1993) (unpublished) (affirming
obstruction enhancement where defendant provided false name, requiring extra
presentence investigatory work, even though defendant later admitted to true
name).
In addition, notwithstanding the fact that Haladjian had not yet gone to the
airport to board the flight, his conduct constituted an attempt to flee and therefore
warranted the obstruction of justice enhancement. See United States v. Keats, 937
F.2d 58, 67 (2d Cir. 1991) (holding that the district court did not err when it
imposed an obstruction enhancement because there was evidence that the
defendant attempted to flee, including a visa application, an airline timetable, and a
computer printout showing a reservation for a flight leaving the country the next
day); see also Draper, 996 F.2d at 986 n.2 (citing Keats with approval).
AFFIRMED.
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