                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 27 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50475

              Plaintiff - Appellee,              D.C. No. 8:13-cr-00080-AG-1

 v.
                                                 MEMORANDUM*
BILLY LOUIS NELMS, Sr., AKA Billy
Louis Nelms,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-50523

              Plaintiff - Appellee,              D.C. No. 8:13-cr-00080-AG-2

 v.

SOKHON NELMS, AKA Sokhon Khourn,

              Defendant - Appellant.


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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                              Submitted June 6, 2016**
                                Pasadena, California

Before: REINHARDT and WARDLAW, Circuit Judges and BENNETT,*** Senior
District Judge.

      Defendant Billy Nelms (hereinafter “Billy”) is a former immigration officer

who took bribes and provided temporary permanent resident status in return to

Cambodian immigrants. He and his wife, Defendant Sokhon Nelms (hereinafter

“Sokhon”), also contacted government witnesses named in his indictment while he

was on pre-trial release. He was convicted at trial of (i) one count of conspiracy to

commit bribery and defraud the United States, 18 U.S.C. § 371; (ii) one count of

conspiracy to commit witness tampering, 18 U.S.C. § 1512(k); (iii) two counts of

bribery by a public official, 18 U.S.C. § 201(b)(2); and (iv) two counts of witness

tampering, 18 U.S.C. § 1512(b)(1). The jury also found that the statutory

enhancement for commission of the witness tampering offenses while on release,

18 U.S.C. § 3147, should apply. Subsequently, he was sentenced to 51-months

imprisonment.




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Mark W. Bennett, Senior District Judge for the U.S.
District Court for the Northern District of Iowa, sitting by designation.

                                          2
      Defendant Sokhon Nelms, Billy’s wife, was also convicted of one count of

conspiracy to commit witness tampering, 18 U.S.C. § 1512(k), and two counts of

witness tampering, 18 U.S.C. § 1512(b)(1), and was sentenced to 18-months

imprisonment.

      Billy argues that his conspiracy convictions should be reversed because the

jury instructions on those charges were confusing and erroneous. He also contends

that the district court engaged in impermissible double counting when calculating

his sentence. Sokhon does not contest her conviction. Rather, she argues that the

district court abused its discretion when imposing her below-guidelines sentence.

None of the defendants’ arguments has merit, and accordingly, we affirm.

      1. “We review the district court’s formulation of a jury instruction for abuse

of discretion, although we review de novo the question whether a jury instruction

misstates an element of a crime.” United States v. Dearing, 504 F.3d 897, 900 (9th

Cir. 2007). When reviewing allegedly confusing jury instructions, we examine the

instructions “as a whole” and in the context of the entire trial to determine if they

were “misleading or confusing, inadequately guided the jury’s deliberations, or

improperly intruded on the fact finding process.” United States v. Warren, 25 F.3d

890, 898 (9th Cir. 1994).




                                           3
      In this case, the instruction given for both the multi-object bribery-related

conspiracy, 18 U.S.C. § 371, and the witness tampering conspiracy, 18 U.S.C.

§ 1512(k), were taken from the Ninth Circuit Manual of Model Criminal Jury

Instructions § 8.20. These instructions adequately stated the law, and, taken as a

whole, they were not confusing. Contrary to Billy’s argument, the instruction for

the Section 371 multi-object bribery-related conspiracy adequately instructed the

jury that it must unanimously agree on at least one of the conspiracy’s objectives.

That instruction specifically stated that the jury “must find that there was a plan to

commit at least one of the crimes alleged in the first superseding indictment as an

object of the conspiracy with all of you agreeing as to the particular crime which

the conspirators agreed to commit.” That instruction is more than sufficient to

guide the jury. See, e.g., United States v. Friedman, 445 F.2d 1076, 1084 (9th Cir.

1971).

      Further, the jury was not likely to be confused by the differences between

the two instructions. Billy contends that the jury may have been confused by the

fact that the Section 371 conspiracy had an overt act requirement, but the Section

1512(k) conspiracy did not. The difference between the two instructions, however,

is required by the law—Section 1512(k) does not require an overt act. See United

States v. Shabani, 513 U.S. 10, 14 (1994). Billy provides no support in precedent


                                           4
or in logic for his argument that “confusion blossoms” from the district court’s

decision to accurately state the elements of each conspiracy. Finally, we reject

Billy’s argument that the Section 1512(k) instruction was confusing because it

required the jury to find that the defendant “willfully participat[ed] in the unlawful

plan,” which he claims is “tantamount” to an overt act requirement. That argument

ignores the plain language of the instruction. Because the conspiracy instructions

adequately guided the jury’s factfinding process, did not intrude on that process,

and were not misleading or confusing, we affirm.

      2. Billy next challenges his sentence, claiming that the district court

engaged in impermissible double counting when it calculated his sentence. He is

wrong. It is undisputed that Billy’s witness tampering conduct was an obstruction

of justice offense that qualified for a U.S.S.G. § 3C1.1 two-level enhancement.

The district court therefore appropriately applied that enhancement by calculating

the guideline range of 51 to 63 months. After considering the 3553(a) factors, the

judge chose a sentence of 51 months. However, because the jury determined that

Billy’s witness tampering conduct had been committed while on pretrial release,

the judge applied the statutory enhancement under 18 U.S.C. § 3147, which

required that any witness tampering sentence be served consecutively. In order not

to exceed the 51 month sentence the judge deemed appropriate, he divided that


                                           5
sentence into 45 months for the bribery-related charges and 6 months for the

witness tampering, to be served consecutively. This was necessary in order to

comply with 18 U.S.C. § 3147 and the Guidelines. See U.S.S.G. § 3C1.1, cmt. 1.

At no point did the judge increase Billy’s offense level twice for the same conduct.

Accordingly, no double counting occurred.

      3. Sokhon raises only one challenge on appeal: that the district court

abused its discretion in imposing her below-guidelines sentence because the court

impermissibly considered the unrelated conduct of her husband, the government’s

witnesses, and her culture.1 Sokhon’s argument is based on statements made by

the district judge that are taken out of context. When placed in context, the

message of the district judge is clear: Sokhon’s attempts to tamper with the

witnesses against her husband were serious in nature because her crime affected

the integrity of the criminal justice system and sent a negative message to new

immigrants about the rule of law in this country. These statements, therefore, were

relevant considerations under 18 U.S.C. § 3553(a).

      We affirm in both cases.



      1
         According to the Bureau of Prisons, Sokhon was released from prison on
April 27, 2016. This appeal is not moot, however, because she is currently serving
a term of supervised release. See United States v. Verdin, 243 F.3d 1174, 1178
(9th Cir. 2001).

                                          6
AFFIRMED.




            7
