                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 23 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10149

              Plaintiff - Appellee,              D.C. No. 2:05-cr-00243-EJG

  v.
                                                 MEMORANDUM *
JAVARIS MARQUEZ TUBBS,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of California
                 Edward J. Garcia, Senior District Judge, Presiding

                      Argued and Submitted December 5, 2011
                             San Francisco, California

Before: SCHROEDER, O’SCANNLAIN, and BERZON, Circuit Judges.

       Javaris Tubbs appeals his conviction for use of a firearm during a robbery, in

violation of 18 U.S.C. § 924(c)(1), on two grounds. First, he contends that there

was insufficient evidence to support the conclusion that he, Michael Blanche, or

Michael Bradley used a real firearm, rather than a toy or replica, during the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
robbery. Alternatively, Tubbs argues that there was insufficient evidence to

support the conclusion that he aided and abetted a violation of § 924(c)(1) by

Blanche or Bradley. See 18 U.S.C. § 2.

       1.    Considered in the light most favorable to the United States, there was

sufficient evidence from which a rational trier of fact could find, beyond a

reasonable doubt, that Blanche and Bradley each used a real gun during the

robbery. See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en

banc). Several eyewitnesses observed Blanche and Bradley from a close distance

and provided details about the color, weight, material, and models of the purported

weapons that comported with the characteristics of real guns. See United States v.

Harris, 792 F.2d 866, 867-68 (9th Cir. 1986). Moreover, at least two of these

witnesses testified that they had personal familiarity with guns. See id.

      2.     In addition, there was sufficient evidence from which a rational juror

could conclude, beyond a reasonable doubt, that Tubbs aided and abetted the use of

a gun during the robbery. See Nevils, 598 F.3d at 1164. The three men spent the

entire morning and afternoon prior to the robbery together. During that time, they

“talk[ed] about going to get some money,” and Tubbs mentioned that he needed a

gun, permitting an inference that Blanche and Bradley, in contrast, already had

guns. At Tubbs’s direction, Angel Brewer drove the three men to stores where they


                                          2
purchased the clothing that they wore during the robbery, drove them to several

parking lots containing banks or credit unions, and ultimately drove them to the

Washington Mutual bank. Witnesses testified that Blanche and Bradley entered the

bank first, brandishing guns to force employees and customers to lie on the ground.

Only then did Tubbs enter, seizing money from the teller drawers and putting it into

a bag. Subsequently, Blanche, Bradley, and Tubbs fled the scene in the same car.

Based on this evidence, a rational juror could find that Tubbs participated in

coordinating the entire bank robbery, including planning for Blanche and Bradley to

use real guns to gain control of the premises, and that, pursuant to the plan, Tubbs

went behind the counter, took the money, put it in the bag he brought with him, and

fled. See United States v. Hungerford, 465 F.3d 1113, 1116-17 (9th Cir. 2006);

United States v. Nelson, 137 F.3d 1094, 1104 (9th Cir. 1998).

      The district court’s judgment is AFFIRMED.




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