United States v. Tigran Zmrukhtyan

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50043
Plaintiff-Appellee, D.C. No.
2:21-cr-00047-MCS-1
v.
TIGRAN ZMRUKHTYAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
Argued and Submitted July 12, 2023
Pasadena, California
Before: SANCHEZ and MENDOZA, Circuit Judges, and DONATO,** District
Judge.
Tigran Zmrukhtyan appeals the 84-month custodial sentence he received for
his 18 U.S.C. § 922(g)(1) conviction, and the two-level enhancement the district
court applied at sentencing under United States Sentencing Guidelines (USSG)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
§ 3C1.2 for reckless endangerment during flight. We review “the district court’s
factual findings for clear error . . . and its application of the Guidelines to the facts
for abuse of discretion.” United States v. Harris, 999 F.3d 1233, 1235 (9th
Cir. 2021) (citation omitted). We affirm.
1. The district court used the correct legal standard to conclude that the
two-level enhancement under USSG § 3C1.2 applied to defendant. The
presentence report recommended the application of § 3C1.2 because the defendant
“recklessly created a substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.” The district court
adopted the report and its calculation of the advisory sentencing guidelines.
Consequently, the district court’s omission of the word “serious” when it found
that “the record is clear that there was a substantial risk of bodily injury as a result
of the fleeing from law enforcement,” does not lead us to “assume that the court
applied the wrong legal standard when assessing the injuries sustained by” the
police officer here. United States v. Gasca-Ruiz, 852 F.3d 1167, 1174–75 (9th Cir.
2017); see also United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc)
(“We assume that district judges know the law and understand their obligation to
consider all of the § 3553(a) factors, not just the Guidelines.”).
2. The district court’s statement of reasons for applying the § 3C1.2
enhancement was succinct but not inadequate. The pertinent facts in the record
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were clear and undisputed. We are consequently able to determine “the conduct on
which [the district court] based the enhancement.” United States v. Young, 33 F.3d
31, 33 (9th Cir. 1994).
3. The district court did not abuse its discretion in applying the § 3C1.2
enhancement to the facts here. Not every instance of fleeing from law
enforcement, even with a loaded firearm, will necessarily trigger the § 3C1.2
enhancement. See United States v. Reyes-Oseguera, 106 F.3d 1481, 1484 (9th Cir.
1997). The application in this case was warranted because Zmrukhtyan carried a
loaded handgun in his waistband in a shopping mall during a holiday season, and
actively resisted arrest to the extent of injuring an officer. See id. (“The issue is
whether the suspect’s behavior during the apprehension recklessly endangers the
officer,” and it is “critical” how the suspect “behav[ed] at the time of
apprehension,” e.g., whether they “resisted the agent and a struggle ensued,” or
“simply fell to the ground in surrender and exhaustion.”). In the particular
circumstances here, the district court properly found that Zmrukhtyan recklessly
created a substantial risk of death or serious bodily injury to another in the course
of fleeing from law enforcement.
4. The district court’s 84-month custodial sentence was not substantively
unreasonable. Taking into account the totality of the circumstances, we find that
the district court properly weighed the factors under 18 U.S.C. § 3553(a) and
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concluded that 84 months was the appropriate, within-guidelines custodial
sentence for this defendant and this crime. See Gall v. United States, 552 U.S. 38,
51 (2007). Zmrukhtyan “has not demonstrated how, in light of the totality of the
circumstances, the district court abused its discretion in imposing [his] sentence.”
United States v. Crowe, 563 F.3d 969, 978 (9th Cir. 2009).
AFFIRMED.
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