                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 15 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 17-55643

                Plaintiff-Appellee,              D.C. Nos. 3:16-cv-01433-GPC
                                                           3:12-cr-00236-GPC-1
 v.
                                                 MEMORANDUM*
RUDY ESPUDO,

                Defendant-Appellant.

UNITED STATES OF AMERICA,                        No. 17-55644

                Plaintiff-Appellee,              D.C. Nos. 3:16-cv-00738-GPC
                                                           3:12-cr-00236-GPC-4
 v.
                                                 MEMORANDUM*
MIGUEL GRADO, AKA Kathy, AKA
Kieto,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Gonzalo P. Curiel, District Judge, Presiding

                       Argued and Submitted March 6, 2019
                              Pasadena, California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: KLEINFELD, GILMAN,** and NGUYEN, Circuit Judges.

      Rudy Espudo and Miguel Grado appeal from the district court’s denial of

their motions to vacate, set aside, or correct their sentences under 28 U.S.C.

§ 2255. The defendants each pleaded guilty to, among other things, one count of

violating 18 U.S.C. § 924(c) for brandishing a firearm (as to Espudo) and

discharging a firearm (as to Grado) in relation to a crime of violence (a conspiracy

under RICO, the Racketeer Influenced and Corrupt Organizations Act) and a

drug-trafficking crime (a conspiracy to distribute controlled substances).

      In their § 2255 motions, the defendants asked that the court vacate and

correct their sentences under § 924(c)(1). Specifically, they argued that they were

sentenced pursuant to the residual clause in § 924(c)(3)’s definition of a “crime of

violence,” which they claimed to be unconstitutionally vague in light of the

Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015).

The district court denied their motions, holding that because the defendants’

§ 924(c) convictions were predicated on both a crime of violence and a drug-

trafficking crime, they would have necessarily been subject to the mandatory

enhanced sentence under § 924(c) notwithstanding Johnson.




      **
            The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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                                I.     Plea Colloquies

      As the district court explained, if the defendants’ § 924(c) convictions were

predicated on both a RICO conspiracy and a conspiracy to distribute controlled

substances, then they are not eligible for Johnson relief. The defendants, however,

contend that their § 924(c) convictions rested solely on acts involving a crime of

violence and that neither defendant admitted to facts supporting a conviction of

brandishing or discharging a firearm in relation to a drug-trafficking crime during

their plea colloquies.

      Their argument is contradicted by the record. During Espudo’s plea

colloquy, he admitted that (1) he entered into an agreement to participate in the

activities of the Mexican Mafia, a gang that controls drug distribution within

certain penal institutions; (2) he was a senior member of the Mafia and oversaw its

collection of tax money from other gangs; (3) he agreed to distribute either 500

grams or more of a mixture containing methamphetamine, or 50 grams of actual

methamphetamine, and a portion of the proceeds were provided to him in the form

of tax payments; (4) on November 16, 2011, he directed his associates to rob a

drug dealer who failed to pay tax money on behalf of the Mafia; and (5) although

he was not present for the robbery, it was foreseeable that one of his associates

brandishing a shotgun at the drug dealer. Espudo’s § 924(c) conviction was

therefore based on both a crime of violence and a drug-trafficking crime.


                                          3
      In similar fashion, Grado admitted during his plea colloquy that (1) he was a

member of the Diablos Gang, which operated under the umbrella of the Mexican

Mafia, and that he acted as a “shot-caller” who oversaw the collection of tax

money; (2) he collected tax payments by intimidation, force, or threat of force from

various drug dealers who operated within the Diablos Gang’s territory; (3) he sold

approximately 13.8 grams of methamphetamine, and distributed, possessed with

the intent to distribute, or conspired with other gang members to distribute

methamphetamine or cocaine; (4) he demanded a meeting with a local drug dealer

after that dealer shorted Grado’s coconspirator on the amount of methamphetamine

to be delivered; and (5) even though the drug dealer ultimately provided Grado’s

coconspirator with the shorted methamphetamine, Grado went to the dealer’s

residence and either shot him or aided and abetted his coconspirator in shooting

him. Grado’s § 924(c) conviction was therefore similarly based on both a crime of

violence and a drug-trafficking crime.

                         II.    Claim of Duplicitous Counts

      The defendants also contend on appeal that a § 924(c) conviction cannot be

predicated on both a crime of violence and a drug-trafficking crime because it

would create an impermissibly duplicitous indictment. They rely on In re Gomez,

830 F.3d 1225, 1227 (11th Cir. 2016), in which the Eleventh Circuit held that the

defendant had made a prima facie showing for purposes of 28 U.S.C.


                                          4
§ 2244(b)(3)(C), that his conviction, based on a single count, might have

implicated § 924(c)’s residual clause and Johnson. In Gomez, the defendant was

charged in a single count of violating § 924(c), referencing two drug-trafficking

offenses and an attempted Hobbs Act robbery on the same day, as well as an

ongoing conspiracy to commit Hobbs Act robbery spanning two weeks as potential

predicates. Because the defendant might have “carried and possessed” the firearm

during any of these separate underlying offenses (and not others), the Eleventh

Circuit was left guessing as to which predicate the jury relied on for the § 924(c)

conviction.

      But Gomez is inapposite. In the present case, the defendants were each

charged with violating § 924(c) for brandishing or discharging a firearm on only

one occasion. The defendants just happened to commit two separate predicate

offenses while brandishing or discharging that firearm—a RICO conspiracy that

was inextricably intertwined with a conspiracy to distribute controlled substances.

      Nor is this a situation in which the defendants were charged with multiple

§ 924(c) offenses for “using the same firearm one time to simultaneously further

two different conspiracies.” See United States v. Vichitvongsa, 819 F.3d 260, 266

(6th Cir. 2016) (emphases in original) (holding that the defendant who used a

firearm while simultaneously committing two predicate offenses could not be

convicted on two § 924(c) counts). Here, the defendants were each charged with


                                          5
only one count of violating § 924(c). The defendants’ § 924(c) convictions were

therefore legally permissible.

                                  III. Other Issues

      Because the defendants’ § 924(c) convictions were based in part on

drug-trafficking crimes, they are not entitled to Johnson relief. We thus have no

need to decide whether the residual clause in § 924(c)(3)’s definition of a crime of

violence is unconstitutionally vague. Nor do we address whether the defendants’

Johnson argument is procedurally defaulted for failing to raise the issue on direct

appeal or is waived by their guilty pleas.

      AFFIRMED.




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