                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             AUG 8 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-30097

              Plaintiff-Appellee,                D.C. No.
                                                 3:17-cr-00034-TMB-1
 v.

JOSEPH KUZMIN,                                   MEMORANDUM*

              Defendant-Appellant.


                    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




      *
             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).
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.


                                           2
      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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