United States of America v. Alexander Nersesian

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0936n.06
Filed: December 27, 2006
No. 05-3398
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEXANDER NERSESIAN,
Defendant-Appellant.
/
On Appeal from the United
States District Court for the
Southern District of Ohio
BEFORE: RYAN, BATCHELDER, and SUTTON, Circuit Judges.
RYAN, Circuit Judge. Alexander Nersesian appeals his prison sentence for
trafficking in illegal drugs and money laundering, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), 846, and 18 U.S.C. § 1956(a)(1)(A)(i). He claims the sentence imposed was
unreasonable because the district court, in calculating the weight of the drugs, improperly
relied upon an extrapolation of the total weight of the pills Nersesian admitted trading from
a sample of the drugs seized from him. We find the district court’s sentence is reasonable
and we affirm.
I.
After a lengthy government investigation in Columbus, Ohio, into the illegal traffic
in methylenedioxymethamphetamine (MDMA), better known as Ecstacy, a federal grand
jury indicted Nersesian in June 2002 on ten counts of drug-related crimes. On January 3,
2003, Nersesian entered into a plea agreement with the government; he agreed to plead

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guilty to one count of conspiracy to distribute and possession with intent to distribute
Ecstacy, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846, and one count of money
laundering proceeds from narcotics trafficking, in violation of 18 U.S.C. § 1956(a)(1)(A)(i),
and to forfeit $200,000. The parties agreed that for the purposes of sentencing, the
November 1, 2000, Sentencing Guidelines would apply and that Nersesian had traded
100,000 pills of Ecstacy, although the government seized only 10,000 pills. The plea
agreement did not mention a total weight for the pills, although the weight of the narcotics
would be a significant factor in determining the correct base offense level. On February
14, 2003, Nersesian pled guilty, pursuant to this agreement.
The final presentence investigation report concluded that Nersesian’s base offense
level under the 2000 Guidelines was 28. The probation officer calculated this base offense
level, in part, by multiplying the average weight of 4,999 pills seized from Nersesian and
weighed by the government (190 milligrams per pill) by the 100,000 pills Nersesian
admitted trading. The district court accepted this base offense level, determined that
Nersesian had a Level II criminal history, and then reduced his offense level to 27 after
factoring in his admitted supervisory role in the trafficking scheme and acceptance of
responsibility. The court then granted the government’s motion for downward departure
under U.S.S.G. § 5K1.1, reducing the offense level to 23. With a Level II criminal history,
the Guidelines recommended a sentence of 51 to 63 months’ imprisonment.
The district court sentenced Nersesian to 55 months’ imprisonment for each count,
to run concurrently, as well as supervised release and a fine. The court dismissed the
remaining charges. Nersesian appealed the sentence.
II.

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This court reviews a district court’s choice of sentence to “determin[e] whether a
sentence is unreasonable.” United States v. Booker, 543 U.S. 220, 261 (2005). In making
this reasonableness determination, we examine the length of the sentence, but also look
to see whether the sentencing court considered the applicable Guidelines range and the
sentencing factors listed in 18 U.S.C. § 3553(a), including the nature and circumstances
of the offense, the defendant’s history and characteristics, the seriousness of the crime,
justice, deterrence of others, and the need to provide the defendant with training and
medical care. 18 U.S.C. § 3553(a); United States v. Webb, 403 F.3d 373, 383 (6th Cir.
2005) (citing Booker, 543 U.S. at 245-46), cert. denied, 126 S. Ct. 1110 (2006). While the
reasonableness standard of review applies to the actual sentence imposed by the district
court, for individual Guidelines determinations, such as drug quantity, we defer to the
district court’s factual findings, unless they are clearly erroneous. United States v.
Davidson, 409 F.3d 304, 310 (6th Cir. 2005). Mixed questions of law and fact for individual
Guidelines determinations are reviewed de novo. Id.
III.
Under the 2000 Sentencing Guidelines, a defendant’s base offense level for drug
trafficking is based on the type of drug the defendant traded and the total weight of the
drug. U.S.S.G. § 2D1.1(a)(3). Where the court knows the number of doses or pills, but
not their total weight, the Guidelines direct the court to calculate the total weight by using
the drug’s typical weight listed in a table unless “case-specific information” is available from
which the court can make a “more reliable estimate.” Id. § 2D1.1, comment. (n.11). The
2000 Guidelines do not assign a typical weight for Ecstacy. Id.

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In this circuit, if the exact amount of drugs is undetermined, “an estimate will suffice,
but . . . a preponderance of the evidence must support the estimate.” United States v.
Walton, 908 F.2d 1289, 1302 (6th Cir. 1990). This estimate can be based upon physical
evidence, such as seized drugs, or upon testimonial evidence. United States v. Pruitt, 156
F.3d 638, 647 (6th Cir. 1998).
The defendant pled guilty to trading 100,000 pills of Ecstacy. Since neither the plea
agreement nor the Guidelines assigned a typical weight for Ecstacy pills, the district court
used the average weight of 190 milligrams per pill obtained from weighing 4,999 pills
seized from Nersesian. The district court properly relied on this “case-specific information”
to conclude that it was more likely than not that the Ecstacy pills tested were representative
of the 100,000 pills the defendant admitted to trading. The district court’s extrapolation of
the total weight from the sample size is not clearly erroneous and we cannot say that the
court erred in using this estimate to determine Nersesian’s base offense level.
IV.
Nersesian also claims that only the weight of the pure Ecstacy should be used to
calculate the total drug weight, rather than including the weight of the pills’ carrier material.
We disagree. In United States v. Landers, 39 F.3d 643 (6th Cir. 1994), we approved
including the weight of the non-drug carrier component in calculating the weight of dilaudid
pills. Id. at 647. We see no reason why Ecstacy pills should be weighed differently. See,
e.g., United States v. Roche, 415 F.3d 614, 619 (7th Cir.), cert. denied, 126 S. Ct. 671
(2005). The district court did not err by using the total weight of the pills, rather than just
the weight of the pure Ecstacy drug.
V.

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While the district court’s calculations of the base offense level are not clearly
erroneous, the final question under Booker is whether the sentence is reasonable. We
think Nersesian’s sentence is not unreasonable based on his total conduct, including the
huge number of pills (100,000) he admitted possessing. Since the district court closely
followed the Guidelines’ factors and ranges and also considered the sentencing factors
listed in 18 U.S.C. § 3553(a), Nersesian’s sentence is not unreasonable under Booker.
The district court’s sentence is AFFIRMED.

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