United States of America v. Joseph Kuzmin

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH KUZMIN,
Defendant-Appellant.
No. 18-30097
D.C. No.
3:17-cr-00034-TMB-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted August 5, 2019**
Anchorage, Alaska
Before: TALLMAN, IKUTA, and N.R. SMITH, Circuit Judges.
Defendant Joseph Kuzmin appeals the district court’s denial of his motion to
suppress evidence of two firearms recovered from his residence. He also appeals
FILED
AUG 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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from the 72-month sentence imposed by the district court. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The district court did not err in denying the motion to suppress evidence
obtained by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),
based on a search warrant affidavit that included details from a previous, illegal
search by state troopers. The district court’s factual finding that Kuzmin’s son,
J.K., informed officials about firearms at the residence before the state troopers’
illegal search was not clearly erroneous. Therefore, after excising the tainted
information from the state troopers’ unlawful entry, the ATF warrant was based on
facts that demonstrate a fair probability that a search of Kuzmin’s home would
produce evidence of the crime of being a felon in possession. See Illinois v. Gates,
462 U.S. 213, 238 (1983); United States v. Nora, 765 F.3d 1049, 1058 (9th Cir.
2014). Kuzmin’s past convictions are relevant to show that Kuzmin is a felon, a
necessary element of the crime, see 18 U.S.C. § 922(g), not to show he had
firearms in the house. Because the search warrant affidavit established that
Kuzmin had constructive possession of the firearms due to his “knowledge of the
weapons and the power and intent to exercise control over them,” United States v.
Vasquez, 654 F.3d 880, 885 (9th Cir. 2011), the ATF did not need direct evidence
that Kuzmin had been seen holding the firearms.
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The district court’s above-Guidelines sentence was not substantively
unreasonable, because the court reasonably determined that Kuzmin’s criminal
history score did not reflect the seriousness of his record, his past convictions
showed that he had a violent temper and a substance abuse problem, he had been
undeterred by past sentences, and he refused to accept responsibility. The district
court did not impermissibly base its sentence upon Kuzmin’s statements at
sentencing; rather, it noted in passing that his statements further supported the
district court’s concern that he failed to accept responsibility, which is an
appropriate ground for imposing a harsher sentence. See United States v. Carter,
804 F.2d 508, 514–15 (9th Cir. 1986).
AFFIRMED.
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