NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. JACK BENJAMIN HESSIANI,

Defendant

- Appellant. No. 18

- 10176
D.C. No. 2:16

- cr - 00320

- LRH

- VCF

- 1

MEMORANDUM *

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, w e affirm the c onviction 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. 

# FILED

SEP 30 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

government’s peremptory strike against juror T.O. under Batson v. Kentucky , 476 U.S. 79 (1986) . T he 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 , 5 5 2 U.S. 472, 477 (2008).
The district court did not clearly err in concluding Hessiani failed to meet his
burden to show that rac e 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

. S ee Mitleider v. Hall , 391 F.3d 1039, 1047 (9th Cir. 2004)

. Particularly given the criminal justice subject T.O. had stud ied , we do not have a basis to doubt the district court’s concl usion 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 po ssessed two firearm s 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. Because3

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 becaus e there the jury instructions
allow ed the jury to convict for uncharged conduct.
T he 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 risk ed “blindsiding a defendant with an unforeseeable basis of liability or prosecution strategy.” Hartz , 458 F.3d at 1022

– 23. T he shooting range manager and assistant manager both testified that every gun at the range w as 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

. T here

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)

.4

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 Pen al 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 w ere 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
insuranc e 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 e xhibit 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 inflicting5

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 section s 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 ); Un it ed States v. Laurico

- Yeno , 590 F.3d 818, 822 (9th Cir. 2010) (“Sect ion 273.5 does not penalize minimal, non

- violent touching s . 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)

. T he indictment and the jury instructions contained the same
obvious error: T hey omitted the element that Hessiani knew he had previously been convicted of a crime p unishable 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
establishe d 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,6

integrity, or public reputation o f 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 anot her sixteen months for stalking. Th e conviction s and sentence s were properly before the jury.
AFFIRMED.