NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

NELLI KESOYAN, 

Defendant-Appellant.

No. 18-10170 

D.C. No. 

2:15-cr-00236-GEB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted June 11, 2019

San Francisco, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and RAYES,** District 

Judge.

Nelli Kesoyan challenges her sentence following her conviction for making 

false entries in government records and conspiring to make false statements to 

influence, obstruct, and impede a pending agency proceeding in violation of 18 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Douglas L. Rayes, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

JUL 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-10170 

U.S.C. §§ 371, 2073. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Kesoyan contends that the district court erred in applying enhancements 

pursuant to U.S.S.G. §§ 2J1.2(b)(3) and 3B1.3 for obstruction of justice and abuse 

of a position of trust. We review a district court’s application of the Sentencing 

Guidelines to the facts of the case for abuse of discretion. United States v. Laurienti, 

731 F.3d 967, 973 (9th Cir. 2013). Because Kesoyan did not object below to the 

district court’s application of the enhancement under § 3B1.3, we review that 

enhancement for plain error. See United States v. Hammons, 558 F.3d 1100, 1103 

(9th Cir. 2009). 

The district court did not abuse its discretion in applying the obstruction of 

justice enhancement. The Sentencing Guidelines provides for a two-level 

enhancement for obstruction of justice if the offense “involved the selection of any 

essential or especially probative record . . . to destroy or alter[.]” U.S.S.G. 

§ 2J1.2(b)(3)(B). In applying the enhancement, the district court relied on United 

States v. Mathews, 874 F.3d 698 (11th Cir. 2017), which it found both factually 

analogous and legally persuasive. We similarly find the case persuasive. In 

Mathews, the Eleventh Circuit held application of the enhancement was proper 

where a Veterans Affairs (“VA”) hospital nurse falsified entries in a patient’s 

medical chart that were essential “to the VA’s investigation into the [p]atient’s 

quality of care and would furnish, establish, or contribute toward proof (i.e., be 
3 18-10170 

especially probative) on that point.” Mathews, 874 F.3d at 705 (original alterations 

and internal quotation omitted). Kesoyan similarly falsified records “in order to 

derail and deceive [an] investigation.” Id. 

Here, Kesoyan, a Social Security Administration (“Administration”) claimsrepresentative, submitted multiple letters which purported to be from the 

Administration supporting Vanik Movseseyan’s naturalization application. In an 

effort to help Movsesyan have his naturalization claims resolved in Sacramento, 

which purportedly has a faster processing time than elsewhere in California, the 

letters falsely listed Movsesyan’s address as one in Sacramento. Anticipating that 

United States Citizenship and Immigration Services (“USCIS”) investigators would 

verify the Sacramento address, Kesoyan modified Administration records to 

corroborate the letters and thwart USCIS investigators from determining 

Movsesyan’s true address.

Additionally, the district court did not plainly err in finding that Kesoyan’s 

position at the Administration constituted a position of trust. For the abuse of public 

trust enhancement to apply, the defendant must occupy a position of trust and use 

that position to significantly facilitate the commission or concealment of a crime. 

U.S.S.G. § 3B1.3. A position of trust is “characterized by professional or managerial 

discretion (i.e., substantial discretionary judgment that is ordinarily given 

considerable deference). Persons holding such positions ordinarily are subject to 
4 18-10170 

significantly less supervision than employees whose responsibilities are primarily 

non-discretionary in nature.” U.S.S.G. § 3B1.3, cmt. n.1; see also United States v. 

Adebimpe, 819 F.3d 1212, 1217 (9th Cir. 2016), cert. denied, 137 S. Ct. 317 (2016). 

Here, as a claims representative, Kesoyan acted with discretion in 

“adjudicat[ing] and authoriz[ing] entitlement or disallowance actions[,]”

“develop[ing], investigat[ing], and resolv[ing] claims[,]” “conduct[ing] inquiries 

and or interviews to obtain, clarify, and verify information[,]” and “examin[ing] 

evidence to evaluate its validity and acceptability in establishing entitlement of 

benefits[.]” Given the amount of discretion inherent to Kesoyan’s role, we cannot 

say application of the enhancement constituted error, let alone plain error. 

AFFIRMED.