                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 21 2015

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


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10574

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00407-KJM-1

  v.
                                                 MEMORANDUM*
ERWIN SHANE STAMPER,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                           Submitted January 15, 2015**
                             San Francisco, California

Before: O’SCANNLAIN and CLIFTON, Circuit Judges, and ADELMAN, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
      Erwin Stamper appeals his jury conviction for conspiracy to commit an

assault resulting in serious bodily injury, in violation of 18 U.S.C. § 371. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

                                           I

      Sufficient evidence supports Stamper’s conviction for conspiracy to commit

an assault resulting in serious bodily injury. Such evidence demonstrated that

Stamper spent a majority of his recreation time with his fellow assailants, that the

attackers lulled the victim and the on-site guard into a false sense of security, that

the attackers ensured that their handcuffs were removed before the victim’s, and

that the attack started without any verbal signal. Viewing the evidence in the light

most favorable to the prosecution, a rational juror could have found the existence

of a conspiratorial agreement beyond a reasonable doubt. See United States v.

Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc).

                                           II

      The district court did not abuse its discretion in using jury instructions that

mirrored the Ninth Circuit’s model instructions. The jury instructions properly

required that the jury find that the overt act was committed for “the purpose of

carrying out the conspiracy.” Such language naturally requires that the

conspiratorial agreement exist before the overt act occurred.

      AFFIRMED.
