                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 15 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50061

                Plaintiff-Appellee,             D.C. No.
                                                2:12-cr-00722-TJH-3
 v.

DARYLE LAMONT SELLERS,                          MEMORANDUM*
                                                and ORDER
                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    Terry J. Hatter, District Judge, Presiding

                       Argued and Submitted March 8, 2018
                              Pasadena, California

Before: GRABER** and NGUYEN, Circuit Judges, and SIMON,*** District Judge.

      Daryle Lamont Sellers appeals the district court’s denial of his motion to

dismiss the indictment for outrageous government conduct. Following a jury trial,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              Judge Graber was drawn by lot to replace Judge Reinhardt. Ninth
Circuit General Order 3.2.h. She has read the briefs, reviewed the record, and
listened to the tape of oral argument held on March 8, 2018.
      ***
             The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
Sellers was convicted of conspiracy to distribute and possess with intent to

distribute cocaine, in violation of 21 U.S.C. § 846, and conspiracy to interfere with

commerce by robbery, in violation of 18 U.S.C. § 1951. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

      1.     We have previously upheld a stash house reverse-sting operation as

not rising to the level of outrageous government conduct. United States v. Black,

733 F.3d 294, 304–10 (9th Cir. 2013). The facts of this case are not materially

distinguishable from those in Black.

      2.     The remaining arguments presented by Sellers lack merit.1 First, the

district court was permitted to make a finding regarding drug quantity in order to

calculate the guidelines sentencing range. See United States v. Brown, 347 F.3d

1095, 1100 (9th Cir. 2003). Second, Johnson v. United States, 135 S. Ct. 2551

(2015), is inapplicable because the jury acquitted Sellers of the 18 U.S.C. § 924(c)

charge and the district court did not apply a mandatory minimum at sentencing.

Finally, the district court did not err by considering evidence that the conspiracy

involved the use of firearms at sentencing. United States v. Watts, 519 U.S. 148,

157 (1997) (per curiam).




      1
        Sellers’s unopposed motion for permission to file a pro se supplemental
brief (docket entry no. 28) is GRANTED, and thus we also consider the arguments
asserted in that brief.

                                           2
      3.     We address Sellers’ challenge to the denial of discovery on his

selective enforcement claim in a separate, concurrently filed opinion.

      The claims addressed in this disposition are

      AFFIRMED.




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