                                                                            FILED
                           NOT FOR PUBLICATION                               DEC 04 2013

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10118

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01406-SRB-3

  v.
                                                 MEMORANDUM*
BRANDON HULLABY,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-10170

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01406-SRB-3

  v.

BRANDON HULLABY,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                       Argued and Submitted March 11, 2013
                           Withdrawn From Submission

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                           Resubmitted November 1, 2013
                             San Francisco, California

Before: WALLACE, McKEOWN, and IKUTA, Circuit Judges.


      Hullaby appeals from his judgment of conviction for conspiracy to possess

with intent to distribute more than five kilograms of cocaine under 21 U.S.C. §

841(a)(1) and (b)(1)(A)(ii) and possession of a firearm in furtherance of the

conspiracy under 18 U.S.C. § 924(c)(1)(A)(i). We address Hullaby’s contention

that the government engaged in outrageous conduct in an opinion filed

concurrently with this memorandum disposition. See United States v. Hullaby, –

F.3d — (9th Cir. 2013). Here, we consider his remaining claims.

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

      Because there was no evidence that Hullaby communicated his alleged intent

to withdraw from the conspiracy, and because the gun crime had already been fully

committed by the time Hullaby purports to have withdrawn, the district court did

not err in rejecting Hullaby’s withdrawal instruction. See, e.g., United States v.

Smith, 623 F.2d 627, 631 (9th Cir. 1980) (explaining that “[w]ithdrawal from a

conspiracy requires a disavowal of the conspiracy or an affirmative action that

would have defeated the purpose of the conspiracy, or ‘definite, decisive and

positive’ steps to show that the conspirator’s disassociation from the conspiracy is


                                          2
sufficient”) (citation omitted); see also United States v. Loya, 807 F.2d 1483, 1493

(9th Cir. 1987).

      The district court did not commit plain error in rejecting Hullaby’s

contention that the indictment was insufficient, because Hullaby was not

prejudiced by the purported error in the indictment. The indictment cited the

statutory section, providing notice of the elements of the crime, and the jury was

properly instructed on those elements. See United States v. Arnt, 474 F.3d 1159,

1162 (9th Cir. 2007).

      The jury instructions and verdict form did not constructively amend the

indictment because Hullaby was convicted of possessing a weapon in furtherance

of the conspiracy, and the grand jury’s indictment charged that Hullaby used,

carried, and possessed a weapon in furtherance. Hullaby therefore was not

“convicted on the basis of different behavior than that alleged in the original

indictment.” United States v. Hartz, 458 F.3d 1011, 1021 (9th Cir. 2006).

      The district court did not abuse its discretion when it admitted Hullaby’s

statement that he was involved with dealing marijuana in 2003 because

corroboration was not necessary, see United States v. Hinton, 31 F.3d 817, 823

(9th Cir. 1994); the six-year gap between the marijuana dealing and the charged

offense was not categorically too long, see United States v. Iverson, 162 F.3d 1015,


                                           3
1027 (9th Cir. 1998); and the marijuana dealing was relevant because the charged

offense involved drugs. United States v. Segovia, 576 F.2d 251, 252–53 (9th Cir.

1978). Further, admission of the evidence was not unfairly prejudicial under Fed.

R. Evid. 403 because Hullaby put his character in play by arguing entrapment. See

United States v. Mendoza-Prado, 314 F.3d 1099, 1103 (9th Cir. 2002). The

evidence was probative of predisposition, and the district court took steps to limit

its prejudicial impact by issuing a limiting instruction. See United States v.

Higuera-Llamos, 574 F.3d 1206, 1210 (9th Cir. 2009).

      The district court did not err in rejecting Hullaby’s sentencing entrapment

argument, because there was “no evidence of the type of reluctance and

inducement present in cases where we have found sentencing entrapment.” United

States v. Biao Huang, 687 F.3d 1197, 1204 (9th Cir. 2012); see also United States

v. Yuman-Hernandez, 712 F.3d 471, 475–76 (9th Cir. 2013). The district court

reasonably determined that the amount of cocaine at issue was set above the

amount that would trigger a mandatory minimum sentence in order to have a high

enough value to interest the conspirators, not to enhance the sentence artificially.

      Because we hold there was no error committed by the district court, there is

a fortiori no cumulative error. See United States v. Romo-Chavez, 681 F.3d 955,

962 (9th Cir. 2012).


                                           4
      Hullaby’s remaining contentions, including his claim that the application of

statutory minimum sentences violates both the Eighth Amendment and the

separation of powers, are rejected. See United States v. Major, 676 F.3d 803,

811–12 (9th Cir. 2012). We also reject Hullaby’s claim that the fact of his prior

conviction should have been found by a jury. Harris v. United States, 536 U.S.

545, 550 (2002); see also Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1

(2013) (expressly retaining this exception).

      AFFIRMED.




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