                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 24 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50215

                Plaintiff-Appellee,             D.C. No.
                                                2:11-cr-00794-DMG-1
 v.

DEVERICK DESHAWN MATHIS, AKA D MEMORANDUM*
Dog, AKA Deverick Davis, AKA Dee Dog,
AKA Donald Hogan, AKA Rodney Lovelle
Jennings,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    17-50230

                Plaintiff-Appellee,             D.C. No.
                                                2:11-cr-00794-DMG-3
 v.

MARCUS LUSHOUND DENNIS,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                    Argued and Submitted September 10, 2019
                              Pasadena, California

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

      Deverick Mathis and Marcus Dennis appeal their convictions of conspiracy

to distribute marijuana and related crimes following a jury trial. Mathis also

appeals his enhanced mandatory minimum sentence. We have jurisdiction under

18 U.S.C. § 1291. We affirm.

      1. Mathis and Dennis contend the transcript of a sealed hearing about a

confidential informant’s identity should have been disclosed to facilitate a possible

claim of error under Roviaro v. United States, 353 U.S. 53 (1957). We have

independently reviewed the sealed record to determine the adequacy of the district

court’s inquiry. See United States v. Gil, 58 F.3d 1414, 1417 n. 2 (9th Cir. 1995);

United States v. Gonzalo Beltran, 915 F.2d 487, 489 (9th Cir. 1990). Assuming

without deciding that the transcript should have been made available, we conclude

that, under the circumstances of this case, any error was harmless beyond a

reasonable doubt. Fed. R. Crim. P. 52(a); Neder v. United States, 527 U.S. 1, 7–8

(1999).

      2. The district court did not abuse its discretion in finding necessity for the

wiretaps. See United States v. Estrada, 904 F.3d 854, 862–63 (9th Cir. 2018).

Each wiretap application articulated why it was needed and what new information

the investigation hoped to learn. Although other evidence linked Mathis and

Dennis to discrete crimes, the wiretaps were necessary to link both defendants to


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the overall conspiracy beyond a reasonable doubt. See id. at 863–64.

      3. Viewed in the light most favorable to the prosecution, there was

sufficient evidence from which the jury could find the existence of one overall

conspiracy beyond a reasonable doubt. See United States v. Nevils, 598 F.3d 1158,

1163–64 (9th Cir. 2010) (en banc). The evidence showed that Mathis and Dennis

participated in a variety of suspicious and criminal acts together over two years,

culminating in phone calls between Mathis and Dennis discussing a marijuana

shipment to Ohio, the arrest of Dennis, and the seizure of over 400 pounds of

marijuana. A reasonable jury could have found the existence of one overall

conspiracy among the same people engaged in similar conduct over the two-year

period. See United States v. Laney, 881 F.3d 1100, 1109 (9th Cir. 2018).

      4. The district court did not plainly err in conducting the 21 U.S.C. § 851(b)

inquiry of Mathis by minute order rather than orally in open court. See United

States v. Reed, 575 F.3d 900, 928 (9th Cir. 2009). The statute requires that the

court “inquire of the person,” not that the court do so orally in open court. Nor

have we ever squarely held that the § 851(b) inquiry must be done orally. Mathis

stretches our precedent too far in suggesting otherwise, because in the cases he

cites the district court failed to conduct the § 851(b) inquiry at all. See United

States v. Rodriguez, 851 F.3d 931, 946 (9th Cir. 2017); United States v. Ocampo-

Estrada, 873 F.3d 661, 667 (9th Cir. 2017).


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      5. On de novo review, United States v. Mincoff, 574 F.3d 1186, 1192 (9th

Cir. 2009), the provisions used to enhance Mathis’ mandatory minimum sentence

are not unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551

(2015). The parties dispute whether to use a facial or as-applied inquiry, but we

need not address that issue because the sentencing scheme survives both. The as-

applied challenge is foreclosed by United States v. Van Winrow, 951 F.2d 1069,

1072 (9th Cir. 1991). As for the facial challenge, a felony drug offense includes an

offense “relating to narcotic drugs,” 21 U.S.C. 802(44); “narcotic drug” is further

defined to include “[c]ocaine, its salts, optical and geometric isomers, and salts of

isomers,” 21 U.S.C. § 802(17)(D). In other words, the statute facially enhances a

sentence for having a prior conviction relating to cocaine. The fact that “relating

to” is broad language does not itself create a “task for us which at best could be

only guesswork.” Johnson, 135 S. Ct. at 2560. Mathis’ additional vagueness

arguments arise from other clauses of § 802(44), such as the “anabolic steroids”

and “depressant or stimulant substances” clauses, that do not apply to Mathis’ prior

conviction. Johnson does not suggest that a defendant may base a vagueness claim

on clauses that do not apply to him. See id. at 2556 (analyzing the residual clause

separately from the rest of the Armed Career Criminal Act).

      AFFIRMED.




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