                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 23 2015

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

UNITED STATES OF AMERICA,                        No. 12-50589

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00923-SJO-1

 v.
                                                 MEMORANDUM*
GARY WHITE, AKA Big J-Killa, AKA
Big Killa, AKA JC, AKA James Cail
White, AKA JC White,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-50183

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00923-SJO-30

 v.

ANTHONY GABOUREL, AKA Bandit,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-50184


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
              Plaintiff - Appellee,             D.C. No. 2:10-cr-00923-SJO-5

 v.

JERMAINE HARDIMAN, AKA J-Killa,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                    S. James Otero, District Judge, Presiding

                        Argued and Submitted June 1, 2015
                              Pasadena, California

Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and KORMAN,**
Senior District Judge.

      Defendants-Appellants Gary White, Anthony Gabourel, and Jermaine

Hardiman appeal their criminal convictions arising from their activities in the

Pueblo Bishop Bloods (PBB) gang. All appeal their convictions for conspiracy to

violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.

§ 1962(d), asserting that there was insufficient evidence. In addition, White

appeals his conviction for conspiracy to distribute controlled substances under 21

U.S.C. §§ 841, 846, and his sentence of 168 months imprisonment. Gabourel also


       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

                                         2
appeals his conviction for conspiracy to commit a violent crime in aid of

racketeering (VICAR), 18 U.S.C. § 1959(a)(5), and his conviction for using and

carrying a firearm in relation to a crime of violence under 18 U.S.C. §

924(c)(1)(A). Last, Hardiman appeals his conviction for conspiracy to distribute

controlled substances under 21 U.S.C. §§ 841, 846, and his sentence of 188 months

imprisonment and 10 years supervised release. We have jurisdiction under 28

U.S.C. § 1291. We affirm the district court’s judgments and sentences except for

White’s conviction and sentence for drug trafficking conspiracy which we reverse.

      1.     Sufficient evidence supports Appellants’ RICO conspiracy

convictions. See United States v. Bingham, 653 F.3d 983, 991 (9th Cir. 2011)

(“‘Evidence is sufficient if, viewed in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” (quoting United States v. Odom, 329 F.3d 1032, 1034 (9th Cir.

2003))). RICO requires an agreement to conduct or participate in the conduct of an

enterprise’s affairs through a pattern of racketeering activity. See Boyle v. United

States, 556 U.S. 938, 944 (2009); United States v. Turkette, 452 U.S. 576, 580

(1981). The government presented abundant evidence from which the jury could

find that the PBB was an unlawful enterprise, comprised mostly of

African-American men from the Pueblo Bishop Housing Projects in Los Angeles,


                                          3
who identify themselves with gang colors, tattoos, graffiti, gang signs, and apparel,

and who operate within a hierarchy of “Young Gangstas” and “Old Gangstas.”

The jury could rationally find that the Appellants agreed to participate in the PBB’s

affairs through drug trafficking, gun trafficking, armed robbery, extortion, and

murder.

      2.     The district court did not plainly err in noting that the potential jurors

“may be suspicious” regarding Appellants. Such a comment must be considered in

light of the totality of the circumstances. See Kentucky v. Whorton, 441 U.S. 786,

789–90 (1979). Here, the district court’s comment came immediately after the

judge told the prospective jurors about the presumption of innocence; he then

informed them that although they “may be suspicious” regarding Appellants, they

were required to acquit them if the government failed to prove its case. In context,

there was no error.

      3.     The district court did not err by relying on acquitted conduct to

sentence White. As White concedes, we have held that a district court may

consider acquitted conduct when sentencing a defendant, so long as the enhanced

sentence does not exceed the statutory maximum. United States v. Mercado, 474

F.3d 654, 657–58 (9th Cir. 2007) (citing United States v. Watts, 519 U.S. 148

(1997) (per curiam)), cert. denied, 552 U.S. 1297 (2008). White does not argue


                                          4
that the district court’s findings were unsupported or that his sentence was

increased beyond a statutory maximum (nor could he).

      4.     The district court’s increase of White's criminal history category was

not unreasonable. The sentencing guidelines permit a district court to increase a

criminal history category if prior criminal convictions understate the seriousness of

the defendant’s criminal history. United States v. Ellsworth, 456 F.3d 1146,

1151–54 (9th Cir. 2006); U.S.S.G. §§ 4A.1.2, 4A1.3. White had previously been

convicted of voluntary manslaughter, in which two individuals were killed, but that

conviction was unscored under the Sentencing Guidelines due to its age.

      5.     The district court increased White’s base offense level under U.S.S.G.

§ 3B1.1 for his role as “an organizer or leader of criminal activity.” The

determination is factually supported by the testimony at trial that White was an

“Old Gangsta” and a self-identified leader of the PBB.

      6.     The district court did not err by increasing White's base offense level

for making credible threats under U.S.S.G. § 2D1.1(b)(2). White made several

statements at an August 2009 gang meeting in which he urged younger gang

members to use violence to protect PBB territory, and, indeed, within a few weeks

two shootings occurred.




                                          5
      7.     Sufficient evidence supports Gabourel’s conviction for a VICAR

conspiracy, 18 U.S.C. § 1959(a), and the jury’s finding of an underlying crime of

violence for his conviction for using and carrying a firearm in relation to a crime of

violence under 18 U.S.C. § 924(c)(1)(A). Gabourel confessed to participating in a

drive-by shooting that resulted in the murder of Francisco Cornelio. Gabourel

admitted that he and others targeted Cornelio in retaliation for the killing of a PBB

gang member.

      8.     Sufficient evidence supports a nexus between Hardiman’s drug sales

and his RICO conspiracy conviction. “A nexus exists when (1) one is enabled to

commit the predicate offenses solely by virtue of his position in the enterprise or

involvement in or control over the affairs of the enterprise, or (2) the predicate

offenses are related to the activities of that enterprise.” United States v.

Yarbrough, 852 F.2d 1522, 1544 (9th Cir. 1988) (internal quotation marks

omitted). Hardiman admitted that he was a member of PBB and sold drugs within

the territory protected by PBB. The jury could rationally find that Hardiman was

able to sell drugs by virtue of his rank within the gang and that his drug sales were

related to the gang.

      9.     Sufficient evidence supports the jury’s verdict that Hardiman

conspired to distribute at least 28 grams of crack cocaine, and also supports the


                                           6
district court’s finding that Hardiman was responsible for at least 280 grams of

crack cocaine. Hardiman conceded throughout trial that he sold drugs. Moreover,

several witnesses, including his drug suppliers, testified as to the extent of his drug

dealing including the quantity of drugs sold to him and frequency of his purchases

and sales.

      10.    Hardiman’s sentence of 188 months imprisonment was not

unreasonable. The district court considered the factors in 18 U.S.C. § 3553(a)

including the sentences of other PBB defendants and Hardiman’s role in the PBB,

as well as Hardiman’s disavowal of the gang and contrition at sentencing.

      11.    The district court did not err by sentencing Hardiman to 10 years of

supervised release. The supervised release terms authorized by 21 U.S.C. § 841

trump the maximums set forth in 18 U.S.C. § 3583(b). See United States v. Ross,

338 F.3d 1054, 1057 (9th Cir. 2003) (per curiam). Although 21 U.S.C. § 841(b)

does not specify a maximum term of supervised release, we have previously noted

that the maximum term is life. See id. As 21 U.S.C. § 841(b)(1) contemplates

minimum supervised release terms for 4 or 8 years, and other subsections

contemplate a minimum supervised release term for up to 10 years, the district

court’s imposition of a 10-year term of supervised release does not exceed the




                                           7
maximum, whatever it is. See United States v. Dorsey, 677 F.3d 944, 958 (9th Cir.

2012).

         12.   We hold that the district court erred by denying White’s request to

give the jury Ninth Circuit Model Criminal Instruction 8.26, known as a “Sears

instruction.”1 See Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965); see

also United States v. Escobar de Bright, 742 F.2d 1196, 1200 (9th Cir. 1984). The

instruction reads that “[b]efore being convicted of conspiracy, an individual must

conspire with at least one co-conspirator. There can be no conspiracy when the

only person with whom the defendant allegedly conspired was a government

[agent] [informer] who secretly intended to frustrate the conspiracy.” 9th Cir.

Model Crim. Jury Instr. 8.26.

         At trial, the government had asked the jury to find White responsible for

large quantities of drugs sold by PBB members, including crack cocaine in excess

of 200 grams, power cocaine in excess of 500 grams, and heroin in excess of 90

grams. White admitted to selling a confidential informant small quantities of

heroin on two occasions, but argued that he did not conspire with other PBB



         1
        Both Gabourel and Hardiman joined in White’s request for a Sears
instruction at the district court. However, neither raised the issue in their briefs on
appeal. Their arguments are waived. See Cruz v. Int’l Collection Corp., 673 F.3d
991, 998 (9th Cir. 2012).

                                            8
members to distribute drugs. In its special verdict, the jury found White

responsible for less than 50 grams of heroin. Accordingly, the jury could have

found that White conspired only with the confidential informant, a government

agent, to distribute drugs in contravention of Sears, 343 F.2d at 142, adopted in

Escobar de Bright, 742 F.2d at 1200.

         “The district court’s failure to give a defendant’s requested instruction that is

supported by law and has some foundation in the evidence warrants per se reversal,

unless other instructions, in their entirety, adequately cover that defense theory.”

United States v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011) (internal

citations and quotation marks omitted). Because there were no other instructions

given here that sufficiently covered the defense’s Sears theory, we vacate White’s

drug trafficking conspiracy conviction, Count 5, and remand to the district court.

See United States v. De Bright, 730 F.2d 1255, 1258–59 (9th Cir. 1984) (en banc),

cited approvingly by United States v. Brooks, 772 F.3d 1161, 1172 n.6 (9th Cir.

2014).

         The dissent cites United States v. Montgomery, 150 F.3d 983 (9th Cir. 1998),

for the proposition that “a Sears instruction is not required when there is

overwhelming evidence of a drug conspiracy with non-governmental

conspirators.” But Montgomery never announced any such rule, implicitly or


                                             9
explicitly. Indeed, the Montgomery court’s conclusion that the defendant in that

case was not entitled to a Sears instruction was not based on its consideration of

the trial evidence but, rather, on the fact that the defendant conceded on appeal that

his defense theory did not justify a Sears instruction. Id. at 996 (citing the

concession as support for the conclusion that the defendant “did not rely on a

Sears-type defense theory at trial”). The court’s decision was also based on the

defendant’s failure to request a Sears instruction in the district court. Id.

(“Montgomery did not request a Sears instruction, nor did he join in [his co-

defendant]’s request for a similar instruction. Consequently, Montgomery ‘failed

to preserve for appeal his challenge’ to the district court’s omission of an

instruction concerning this theory of his case.” (citations omitted)). Because White

specifically requested a Sears instruction at trial and presented sufficient evidence

to support a Sears defense, Montgomery is inapposite. See United States v.

Johnson, 459 F.3d 990, 993 (9th Cir. 2006) (“A criminal defendant has a

constitutional right to have the jury instructed according to his theory of the case if

it has ‘some foundation in evidence,’ and he need only show that ‘there is evidence

upon which the jury could rationally find for the defendant.’” (quoting United

States v. Morton, 999 F.2d 435, 437 (9th Cir. 1993))).




                                          10
        White contends that his RICO conspiracy conviction should also be vacated

because of the district court’s denial of a Sears instruction. However, White was

not entitled to a Sears instruction for his RICO count as his theory of defense was

not that he conspired with a government informant, but that the PBB was not a

RICO enterprise and that the alleged underlying transactions did not constitute a

sufficient pattern of racketeering activity. Because White’s theory of defense did

not support a Sears instruction as to the RICO count, the district court did not err in

declining to give the instruction as to that count. See Marguet-Pillado, 648 F.3d

1006.

        The district court’s judgment and sentence as to Appellant Gabourel, Appeal

No. 13-50183, is AFFIRMED. The district court’s judgment and sentence as to

Appellant Hardiman, Appeal No. 13-50184, is AFFIRMED. The district court’s

judgment and sentence as to Appellant White, Appeal No. 12-50589, is

AFFIRMED except for White’s conviction for Count 5, conspiracy to distribute

controlled substances. We REMAND to the district court with instructions to

VACATE White’s conviction with respect to Count 5, unless the government




                                          11
elects to retry him within a reasonable amount of time as determined by the district

court.2




      2
       We note that the district court sentenced White to 168 months
imprisonment on each count, Count 1, Count 5, and Count 16, to run concurrently.
This disposition vacates White’s conviction as to Count 5 only. We leave the
determination of the effect, if any, of the vacatur on White’s sentence to the district
court.

                                          12
                                                                        FILED
                                                                         JUL 23 2015
United States v. White, No. 12-50589
                                                                    MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS
CALLAHAN, Circuit Judge, concurring in part, and dissenting in part:

      While I agree with the majority on all other counts, I would affirm White’s

conviction for conspiracy to distribute controlled substances. In my view, the

district court did not abuse its discretion in declining to provide a Sears instruction.

I read United States v. Montgomery, 150 F.3d 983, 996–97 (9th Cir. 1998), as

implicitly holding that a Sears instruction is not required when there is

overwhelming evidence of a drug conspiracy with non-governmental conspirators.1

      Here, there was abundant evidence that White was a high-ranking, senior

member of the Pueblo Bishops criminal street gang, and that one of the gang’s

primary purposes was to control drug sales in the Pueblo Bishops Housing

Projects. The government produced evidence of hundreds of drug transactions

conducted by PBB members, and that White knew and approved of these drug


      1
        Despite the differences in posture, Montgomery is instructive. On appellate
review in Montgomery, we considered “‘whether the case presented at trial
support[ed] giving an instruction based on a particular theory of defense.’” Id. at
996 (quoting United States v. Span, 970 F.2d 573, 578 (9th Cir. 1992)). In holding
that the defendant did not rely on a Sears-type defense theory at trial, we stated:
“Montgomery asks this court to consider the possibility that the jury could have
disbelieved every shred of evidence presented at trial except for [his conversations
with the government informant] and concluded that Montgomery had conspired to
manufacture, distribute, and import methamphetamine solely with [the government
informant].” Id. Thus, in reaching its holding that a Sears instruction was not
required, we reflected on the paucity of evidence suggesting that the defendant
conspired only with the government agent. We should reflect here as well.
sales by his position in the PBB and by encouraging other PBB members to protect

the gang’s drug selling territory. In light of this evidence, the district court did not

err in finding that there was an insufficient evidentiary foundation to require a

Sears instruction.

      The jury’s drug quantity finding does not imply that it found White

conspired only with the government informant. Rather, the more compelling

inference is that the jury accepted the overwhelming evidence of White’s

conspiracy with PBB members to sell drugs in the Housing Project, including, but

not limited to, the two sales to the confidential informant, but only found the drug

quantities of those two sales were proven beyond a reasonable doubt. The quantity

finding does not negate evidence of the conspiracy between PBB gang members to

distribute drugs.

      We have not held that a Sears instruction is required, per se, in every

conspiracy case in which a government informant is present. But following the

majority’s approach, when would a district court ever have the discretion to deny a

request for a Sears instruction when the alleged conspiracy involves a government

informant?

      District courts are frequently bombarded with proposed jury instructions

with little time for research. Accordingly, we afford district courts considerable

                                           2
deference in determining whether a jury instruction has sufficient evidentiary

foundation. United States v. Daane, 475 F.3d 1114, 1119 (9th Cir. 2007). This is

the precise instance in which, as an appellate court, we should defer to the

discretion of a district court. Here, the district court spent over one-hundred hours

with defense counsel presiding over this trial, presiding over other co-defendants’

trials, and conducting other related proceedings. The district court was well aware

of the facts alleged and the theory of defense. I would hold that the district court

did not abuse its discretion in declining to give a Sears instruction.

      I respectfully dissent.




                                           3
