                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 30 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10176

                Plaintiff-Appellee,             D.C. No.
                                                2:16-cr-00320-LRH-VCF-1
 v.

JACK BENJAMIN HESSIANI,                         MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                    Argued and Submitted September 11, 2019
                            San Francisco, California

Before: WALLACE, BEA, and FRIEDLAND, Circuit Judges.

      Jack Benjamin Hessiani appeals from his conviction for knowingly possessing

a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2), and from

his 77-month sentence. For the following reasons, we affirm the conviction and

sentence.

      1.     We decline to apply de novo review to Hessiani’s challenge of the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
government’s peremptory strike against juror T.O. under Batson v. Kentucky, 476

U.S. 79 (1986). The district court made a “deliberate decision whether purposeful

discrimination occurred.” United States v. Alanis, 335 F.3d 965, 969 (9th Cir. 2003).

After hearing from the parties on the Batson challenge, the district court decided to

“overrule the challenge” because it was “satisfied with the government’s

explanation.” Because the district court evaluated Hessiani’s challenge under all

three steps of Batson, we review the challenge on appeal for clear error. See Snyder

v. Louisiana, 552 U.S. 472, 477 (2008).

      The district court did not clearly err in concluding Hessiani failed to meet his

burden to show that race was a “substantial motivating factor in the prosecutor’s

decision to strike.” Cook v. LaMarque, 593 F.3d 810, 822 (9th Cir. 2010). The

district court evaluated the prosecutor’s reasons and credibility in their totality. See

Mitleider v. Hall, 391 F.3d 1039, 1047 (9th Cir. 2004). Particularly given the

criminal justice subject T.O. had studied, we do not have a basis to doubt the district

court’s conclusion that the government’s explanation for the strike based on age,

education, and life experience as a “combination” was not pretextual.

      2.     The district court did not constructively amend the indictment. The

indictment charged that Hessiani knowingly possessed two firearms when he was a

convicted felon. The district court’s instructions permitted the jury to convict

Hessiani if it found he knowingly possessed at least one of two firearms. Because


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the type of firearm possessed is not an essential element of section 922(g)(1), the

jury was not permitted to convict Hessiani for uncharged conduct. See United States

v. Hartz, 458 F.3d 1011, 1021 (9th Cir. 2006). United States v. Ward, 747 F.3d

1184, 1191–92 (9th Cir. 2014), is distinguishable because there the jury instructions

allowed the jury to convict for uncharged conduct.

      The variance did not prejudice Hessiani’s substantial rights. Just as in Hartz,

the difference between the indictment and jury instructions was “minor,” and not of

the nature that risked “blindsiding a defendant with an unforeseeable basis of

liability or prosecution strategy.” Hartz, 458 F.3d at 1022–23. The shooting range

manager and assistant manager both testified that every gun at the range was from

out of state. The ATF agent testified that all of the guns at issue were manufactured

in either New Hampshire or Germany. Hessiani had ample opportunity to cross-

examine these witnesses to cast doubt on the interstate nexus element of section

922(g)(1).

      3.     Even if the district court erred in admitting the out-of-court recorded

statement of Hessiani’s cousin, Jose Aceves, the error was harmless. Aceves

provided testimony that incriminated Hessiani independent of the recording. There

was other ample evidence in the record to support a guilty verdict. Any error did

not more likely than not affect the guilty verdict. See United States v. Edwards, 235

F.3d 1173, 1178 (9th Cir. 2000).


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      4.     The district court did not plainly err in admitting evidence related to

Hessiani’s nolo contendere pleas. The district court properly admitted exhibit 11,

which contained Hessiani’s nolo contendere judgment of conviction and sentence

for willful infliction of corporal injury under California Penal Code § 273.5, threats

to commit a crime under California Penal Code § 422, and stalking under California

Penal Code § 646.9(A). Because the judgment of conviction and sentence from

Hessiani’s nolo contendere plea were introduced to show that Hessiani had

previously been convicted of a felony, they were admissible under Federal Rule of

Evidence 803(8). See United States v. Nguyen, 465 F.3d 1128, 1132 (9th Cir. 2006)

(stating that judgments of conviction may be admissible under Rule 803(8) “to prove

some other element of a subsequently charged crime”). Because exhibit 11 was

admissible, the district court’s decision to admit exhibit 10, which contained the

change of plea minutes and plea agreement for Hessiani’s nolo contendere plea to

insurance fraud under California Penal Code § 550(b)(1), did not affect Hessiani’s

substantial rights.

      5.     The district court properly concluded that there was sufficient evidence

to support the section 922(g)(1) conviction. Because exhibit 11 was admissible, the

government established that Hessiani had been previously convicted of a felony.

      6.     The district court properly enhanced Hessiani’s sentence under

U.S.S.G. §§ 2K2.1 and 4B1.2(a) for his prior convictions of willfully inflicting


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corporal injury, see California Penal Code § 273.5, and making criminal threats, see

California Penal Code § 422. United States v. Castleman, 572 U.S. 157 (2014), did

not undermine our established precedent that the offenses in sections 273.5 and 422

are crimes of violence. See id. at 170; Arellano Hernandez v. Lynch, 831 F.3d 1127,

1132 (9th Cir. 2016) (holding “conviction for attempted criminal threats” under

California Penal Code § 422(a) “is categorically a crime of violence” even after the

Supreme Court’s decision in Castleman); United States v. Laurico-Yeno, 590 F.3d

818, 822 (9th Cir. 2010) (“Section 273.5 does not penalize minimal, non-violent

touchings. It penalizes the intentional use of force that results in a traumatic

condition.”). Hessiani’s state convictions qualified as crimes of violence, and the

enhancements were properly applied.

      7.    Hessiani was not entitled to relief under Rehaif v. United States, 139 S.

Ct. 2191 (2019). The indictment and the jury instructions contained the same

obvious error: They omitted the element that Hessiani knew he had previously been

convicted of a crime punishable by a term of imprisonment exceeding one year when

he possessed a firearm. See United States v. Benamor, No. 17-50308, 2019 WL

4198358, at *5 (9th Cir. Sept. 5, 2019). But because the record before the jury

established that Hessiani knew he had previously been convicted in California and

sentenced to imprisonment for more than one year when he possessed a firearm, the

error did not affect Hessiani’s substantial rights or seriously affect the fairness,


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integrity, or public reputation of the judicial proceedings. See id. Hessiani was

sentenced to three years’ imprisonment for the felony offense of willful infliction of

corporal injury. Hessiani was also sentenced to sixteen months’ imprisonment for

making criminal threats, and to another sixteen months for stalking. The convictions

and sentences were properly before the jury.

      AFFIRMED.




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