                                                                            FILED
                           NOT FOR PUBLICATION                               NOV 17 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TYREE COUTEE,                                    No. 10-55138

              Petitioner - Appellee,             D.C. No. 5:08-cv-00692-CAS-RZ

    v.
                                                 MEMORANDUM *
JAMES WALKER, Warden,

              Respondent - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                    Argued and Submitted November 10, 2011
                              Pasadena, California

Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**




Warden J. Walker appeals the district court’s grant of Tyree Coutee’s petition for a

writ of habeas corpus. Coutee argued that there was insufficient evidence to

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
            The Honorable Henry E. Hudson, District Judge for the U.S. District
Court for Eastern Virginia, sitting by designation.
support the true finding on a gang enhancement related to his 2006 conviction. The

district court issued its opinion prior to the California Supreme Court decision in

People v. Albillar, 244 P.3d 1062 (Cal. 2010), which modified the interpretation of

Cal. Penal Code §186.22(b)(1) previously applied by this court. We hold that the

district court, in reliance on these prior opinions, erred in finding that there was

insufficient evidence to uphold the enhancement. We hold that the determination

by the California Court of Appeal that there was sufficient evidence supporting the

enhancement as defined by the California courts was not an objectively

unreasonable application of the requirements of Jackson v. Virginia, 443 U.S. 307

(1979).




REVERSED and REMANDED.
