                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             JUN 09 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 14-50403

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00072-PSG-27

 v.
                                                 MEMORANDUM*
ANDRANIK ALOYAN, AKA Ando,
AKA Andy,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                        Argued and Submitted May 6, 2016
                              Pasadena, California

Before: KOZINSKI, W. FLETCHER, and GOULD, Circuit Judges.

      Andranik Aloyan appeals the denial of his motion to suppress evidence

gained in a search of his girlfriend’s apartment, and he also appeals his convictions

for participation in a RICO conspiracy, attempted bank fraud, aggravated identity




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
theft, possession of fifteen or more unauthorized access devices, and possession of

a firearm by a convicted felon. Aloyan further appeals his sentence. We affirm.

      1.     The district court did not clearly err in determining that, under the

totality of the circumstances, Aloyan’s girlfriend voluntarily consented to the

officers’ entry. See United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir. 2000).

It is significant that officers asked her if they could enter the apartment, and she

verbally gave permission before fully opening the door. The police did not use an

“unconstitutional ruse” to obtain entry because they accurately stated their purpose

for entry: to speak with Aloyan. Cf. United States v. Bosse, 898 F.2d 113, 115 (9th

Cir. 1990). The evidence was sufficient to determine that Aloyan’s girlfriend

consented, even though officers did not recall the exact words she used. See

United States v. Perez-Lopez, 348 F.3d 839, 845 (9th Cir. 2003). And even if the

officers exceeded the scope of consent by purporting to engage in a protective

sweep into private areas of the house, the contraband was discovered in plain view

in a place where police were lawfully entitled to be. See Horton v. California, 496

U.S. 128, 136–37 (1990).

      2.     The district court did not abuse its discretion by allowing the

government to present evidence of a January 2010 shooting in which Aloyan was

allegedly involved to provide context for the relationship between Aloyan and a


                                           2
coconspirator who testified against him. See United States v. Serang, 156 F.3d

910, 915 (9th Cir. 1998). The district court did not commit plain error affecting

substantial rights by admitting photos of firearms besides the one for which he was

charged. The district court did not abuse its discretion by excluding evidence that

the firearm that Aloyan was charged with possessing was inoperable. The ability

to operate the firearm was not relevant to the charge, see United States v. Harris,

792 F.2d 866, 868 (9th Cir. 1986) (citing 18 U.S.C. § 921(a)(3)), and the

government did not open the door to this evidence nor did it imply the gun was

unsafe in a manner that caused Aloyan undue prejudice.

      3.     When applying a sentencing enhancement for 50 or more victims, the

district court clearly erred in finding that Aloyan’s crimes affected 82 victims

because he possessed account numbers belonging to 82 people on a USB drive. A

victim is defined as “any individual whose means of identification was used

unlawfully or without authority.” U.S.S.G. § 2B1.1(b)(2) cmt. n.4(E) (2013). But

mere possession is not use. See, e.g., Bailey v. United States, 516 U.S. 137, 143

(1995). Aloyan did not object to this finding, however, so we review for plain

error. Exhibit 153 from the sentencing proceedings shows that Aloyan used the

account numbers of 28 different people who “actually had money moved around in

their accounts or had actual loss from their accounts via checks written against


                                          3
them or money transferred out via wire.” The record also shows that Aloyan used

account numbers to re-encode 22 Green Dot cards. While the record does not

show whether those account numbers belonged to 22 different people such that

Aloyan’s crimes would have had exactly 50 victims, Aloyan has not produced

evidence to the contrary, so he has not met his burden of showing prejudice. See

United States v. Olano, 507 U.S. 725, 734–35 (1993) (defendant bears burden of

showing prejudice on plain error).

      4.     The district court did not abuse its discretion by applying the

sophisticated means enhancement. United States v. Augare, 800 F.3d 1173,

1174–76 (9th Cir. 2015). Aloyan’s use of technology to re-encode Green Dot

cards went above and beyond “garden-variety” identity fraud.

      5.     The district court did not abuse its discretion by rejecting a two- or

four-level minor or minimal role mitigation. “[M]erely being less culpable than

one’s co-participants does not automatically result in minor status.” United States

v. Andrus, 925 F.2d 335, 338 (9th Cir. 1991). Aloyan “certainly was not the

mastermind, and the overall scheme to defraud could have operated without him.

But he joined the conspiracy, and he played a key role by” obtaining bank profiles

from an insider he knew at Bank of America, setting up fraudulent online transfers,




                                          4
and developing customer profiles to use to impersonate people. United States v.

Laurienti, 611 F.3d 530, 552 (9th Cir. 2010).

      AFFIRMED.




                                         5
