     Case: 15-10609       Document: 00513408162         Page: 1     Date Filed: 03/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-10609
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             March 7, 2016
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

ALEKSANDR YEZERSKY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-15-2


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In challenging the sentence imposed for his guilty-plea conviction for
knowingly making false statements in attempting to acquire a firearm from a
federal firearms licensee (FFL), in violation of 18 U.S.C. § 922(a)(6), Aleksandr
Yezersky contends he was entitled to a two-level minor-participant reduction
to his offense level. U.S.S.G. § 3B1.2(b). In denying the reduction, the court
rejected Yezersky’s assertion that he was merely a travel companion and


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 15-10609

translator, and was not otherwise a part of his co-defendant’s scheme to
smuggle firearms out of the United States and into Kazakhstan for resale.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). In
that respect, for issues preserved in district court, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      “Whether [Yezersky] was a minor . . . participant is a factual
determination that we review for clear error”. United States v. Villanueva, 408
F.3d 193, 203 (5th Cir. 2005). A factual finding is not clearly erroneous if it is
plausible in the light of the record as a whole. Id.
      A minor-participant reduction is applicable only if Yezersky can show he
was “substantially less culpable than the average participant” in the offense.
Id. at 203–04 (quoting U.S.S.G. § 3B1.2 cmt. n.3(A)). For the following reasons,
the court’s finding Yezersky was not a minor participant is plausible in the
light of the record.
      Yezersky and his co-defendant, Fedor Belov, drove from California to a
gun show in Texas for the explicit purpose of making illegal purchases of
firearms. And, at the show, Yezersky did more than merely translate for Belov.
Yezersky knowingly presented false identification to an FFL and wrote false
information on ATF Form 4473 (legally required in sales by FFLs). After being
detained, ATF Agents discovered:            Belov possessed a backpack with
approximately eight firearms; Yezersky, a single firearm. When questioned,



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                                 No. 15-10609

Yezersky presented the Agents with a second false identification, and informed
them how the firearms would be smuggled to California.
      Yezersky was also aware the firearms would be smuggled out of the
country to be sold, and he stood to profit from the scheme. But, another reason
Yezersky is not entitled to the reduction is because he was charged only for his
false statements, not the entire scheme. See United States v. Garcia, 242 F.3d
593, 598–99 (5th Cir. 2001); United States v. Washington, 480 F.3d 309, 313 &
n.10 (5th Cir. 2007).
      AFFIRMED.




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