                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT               FILED
                                                         U.S. COURT OF APPEALS
                             ___________________________ ELEVENTH CIRCUIT
                                                               APRIL 29, 2009
                                     No. 08-10908           THOMAS K. KAHN
                             ___________________________          CLERK


                          D.C. Docket No. 05-00324-CR-1-CAP


UNITED STATES OF AMERICA,

                                                                           Plaintiff- Appellee,

                                             versus

FREDDIE SANDOVAL,
a.k.a. Enano,
ANGEL MAZARIEGOS,
a.k.a. Grumpy,

                                                                      Defendants-Appellants.

                           _____________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                         _____________________________

                                       (April 29, 2009)

Before BARKETT, PRYOR and FARRIS,* Circuit Judges.


* Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:

      Freddie Sandoval and Angel Mazariegos appealed their conviction and

sentences of 180 months and 160 months incarceration respectively. They jointly

raise numerous allocations of error. We consider each in turn.

      The court did not clearly err in denying Sandoval’s motion to suppress a

show-up identification. The show-up was immediately after the illegal crimes

took place to determine the identity of the suspects in custody. Show-ups are

unnecessarily suggestive when “police aggravate the suggestiveness of the

confrontation.” See Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987). This

was not done. It was not clear error to refuse to suppress the identification

evidence.

      Sandoval had a leadership role in the events. Undisputed facts justify the

increase in Sandoval’s base offense levels pursuant to U.S.S.G.§3B1.(b). He

exercised a measure of authority over the others and had decision making power

over the group. There was more than minimal planning. A particular rival gang

member was targeted, but substantial planning proceeded the drive-by-shooting of

the rival members house. There was more planning than would be involved in a

“simple form” drive-by-shooting. There was no error in enhancing Sandoval’s

sentence for more than minimal planning per U.S.S.G. §2A2.2(b)(1).

                                          2
         Possession of a firearm is not a RICO offence. We therefore remand for

reconsideration of Sandoval’s sentence without the RICO enhancement.

         Mazariegos argues that the district court erred by admitting three pieces of

evidence that were inadmissible character evidence: photographs of gang graffiti,

book-in photographs and prior arrest records, and evidence of uncharged criminal

conduct. We review for an abuse of discretion. United States v. Calderon, 127

F.3d, 1314, 1331 (11th Cir. 1997). The evidence was useful to prove the

defendant’s identity and the existence of a common scheme, and thus admissible

under Federal Rule of Evidence 404. There was no abuse of discretion.

         Mazariegos next argues that the evidence was insufficient to prove beyond a

reasonable doubt that he personally engaged in two racketeering acts. The

government is not obligated to prove defendant’s personal involvement in two

racketeering acts, but only the existence of "an agreement on an overall objective.”

United States v. To, 144 F.3d 737, 744 (11th Cir. 1998). Mazariegos’s argument

fails.

         Mazariegos argues that the evidence presented was insufficient to prove

beyond a reasonable doubt that he committed the February 20, 2002 car theft. We

review legal questions de novo. To, 144 F.3d at 743. The record indicates that the

car was reported stolen and thirty minutes later the car was recovered. Mazariegos

                                            3
was arrested at the scene. The inference that Mazareigos stole the car was not

unreasonable under all of the circumstances.

      Mazariegos next argues that the District Court erred by increasing his base

offense level for engaging in more than minimal planning before committing the

alleged drive-by shooting. We review the District Court’s application of the

Sentencing Guidelines de novo and its findings of fact for clear error. United

States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005). The record does not reflect

that Mazariegos engaged in any planning before committing the drive-by-

shooting. Although the car turned around after the victim was sighted, nothing

suggests that Mazariegos ordered the car to turn around. Further, the record does

not indicate that Mazariegos used the interim between the sighting of the victim

and the committing of the offense to engage in any type of tactical planning.

Instead, the record shows that Mazariegos’s offense was committed on the spur-

of-the-moment. Minimal planning does not take place even when an offender

waits to commit an offense until no witnesses are present. See U.S.S.G. § 2A2.2,

comment (n.2). The District Court erred by enhancing Mazariegos’s sentence for

more than minimal planning. We remand to the District Court for re-sentencing

without this enhancement.

      Mazariegos next argues that the District Court erred by increasing his base

                                         4
offense level for the use of a minor (Joshua Shivers) per U.S.S.G.§ 3B1.4. The

primary question is whether Mazariegos’s actions indicate that he “used” Shivers ,

the car’s driver, to commit the offense. The commentary to the guidelines states

the “use” of a minor includes “directing, commanding, encouraging, intimidating,

counseling, training, procuring, recruiting, or soliciting.” Id, comment. (n.1).

Although Shivers turned the car around after the victim was sighted, nothing in the

record suggests that Mazariegos ever directed or commanded Shivers to do so.

While it is possible that Mazariegos directed Shivers to turn the car around, the

prosecutor failed to fully elucidate this issue. As such, there can be reasonable

doubt as to whether Mazariegos directed or commanded Shivers to turn the car

around. Similarly, although Shivers helped Mazariegos flee the scene of the

offense, nothing in the record establishes that Mazariegos directed Shivers to do

so. Shiver’s assistance after the fact does not trigger the enhancement. See

U.S.S.G. § 3B1.4. Mazariegos sentence enhancement for using a minor, is set

aside. We remand for re-sentencing without the two enhancements.

      AFFIRMED IN PART AND REVERSED AND REMANDED IN PART




                                          5
PRYOR, Circuit Judge, concurring in the result:

      I concur in the result because the enhancement to Mazariegos’s sentence for

more than minimal planning is clearly erroneous. The government makes a

reasonable argument that any error is harmless, but a remand will allow the district

court to enter a sentence that may still be well above the guideline range.




                                          6
