NOT FOR PUBLICATION FILED
AUG 23 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50368
Plaintiff - Appellee, D.C. No. 2:10-cr-00923-SJO-11
v.
MEMORANDUM*
JASON DAVIS, AKA G-Thang, AKA Lil
G. Red,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted July 5, 2016
Submission Vacated November 4, 2016
Resubmitted August 21, 2019
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: MURGUIA, and WATFORD, Circuit Judges, and BOLTON, ** District
Judge.
Appellant Jason Davis appeals his convictions for racketeering conspiracy in
violation of 18 U.S.C. § 1962(d) and drug trafficking conspiracy in violation of 21
U.S.C. § 846. He challenges (1) the sufficiency of the evidence used to convict him
of RICO and drug trafficking conspiracies, (2) the calculation of his sentence, and
(3) the sufficiency of the evidence used to convict him of possession of a firearm in
furtherance of the RICO conspiracy in violation of 18 U.S.C. § 924(c)(1)(A). This
Court has jurisdiction over this direct appeal under 28 U.S.C. § 1291.We affirm his
conspiracy convictions and vacate his § 924(c) conviction.
1. Davis’s sufficiency of the evidence claim fails for both the RICO and
drug trafficking conspiracies. The Government provided sufficient evidence that the
Pueblo Bishops street gang was a criminal enterprise by demonstrating that they had
existed since the 1970s and used gang violence to protect their territory, increase
their prominence, and protect their drug selling monopoly. See United States v.
Turkette, 452 U.S. 576, 583 (1981) (requiring government to prove (1) an ongoing
organization with framework for carrying out objectives and (2) various members or
**
The Honorable Susan R. Bolton, United States District Judge for the District
of Arizona, sitting by designation.
2
associates functioned as unit to accomplish common purpose). The Government’s
evidence showed that Davis would lead young gangsters, encourage young men to
join the gang, and confront rival gang members. See United States v. Grasso, 724
F.3d 1077, 1086 (9th Cir. 2013) (requiring only “slight connection” between
conspiracy and defendant’s conduct). The Government’s evidence also showed that
Davis participated in the drug trafficking conspiracy by selling drugs to other gang
members, enforcing the gang’s territorial exclusions, and participating in violence
against unauthorized drug sellers. See United States v. Moe, 781 F.3d 1120, 1124–
25 (9th Cir. 2015) (stating government must show more than buyer-seller
relationship for drug trafficking conspiracy conviction).
2. Davis also argues that his sentence was not properly calculated because
he received a supervisory role adjustment under United States Sentencing Guideline
§ 3B1.1(b). The Court reviews a district court’s interpretation of the Sentencing
Guidelines de novo. United States v. Garcia, 497 F.3d 964, 969 (9th Cir. 2007). The
district court’s application of the Sentencing Guidelines is reviewed for abuse of
discretion and its findings of fact are reviewed for clear error. United States v. Staten,
466 F.3d 708, 713 (9th Cir. 2006). The Guidelines provide for a three-level increase
where “the defendant was a manager or supervisor (but not an organizer or leader)
and the criminal activity involved five or more participants or was otherwise
extensive.” USSG § 3B1.1(b). The Government’s evidence showed that Davis
3
influenced young gangsters, enforced gang rules, and intimidated boys to join. In
fact, he was considered “a leader of the YGs.” See United States v. Camper, 66 F.3d
229, 231 (9th Cir. 1995) (finding defendant “need only exercise authority over one
and not all of the other participants in order to merit the adjustment”); United States
v. Hernandez, 952 F.2d 1110, 1119 (9th Cir. 1991) (permitting upward adjustment
when defendant recruited others into criminal activity and exerted some control over
them).
Davis also contends that the jury erred in attributing the drug sales of other
gang members to him. We disagree. The Government’s evidence showed that Davis
was involved in the drug trafficking conspiracy and that gang members had sold over
52,000 grams of cocaine, and agents purchased 200 grams of crack and 800 grams
of cocaine. The law requires nothing more. See United States v. Reed, 575 F.3d 900,
925 (9th Cir. 2009) (“For purposes of sentencing, a conspirator is to be judged on
the quantity of drugs that he reasonably foresaw or which fell within the scope of his
particular agreement with the conspirator.”). Which in turn forecloses Davis’s final
request that his sentence on Counts 1 and 14 be reduced. We therefore conclude that
the district court did not plainly err in calculating Davis’s sentence.
3. Davis attacks his conviction for possession of a firearm on the grounds
that he was not convicted of a crime of violence. Given the Supreme Court’s recent
decision in United States v. Davis, 139 S. Ct. 2319 (2019), we agree. Davis held that
4
§ 924(c)’s residual clause, 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague.
139 S. Ct. at 2336. Here, Davis was convicted of violating § 924(c) for possessing
or carrying a firearm in furtherance of a “crime of violence”—namely, a RICO
conspiracy.1 There is no real dispute that Davis’s § 924(c) conviction depended upon
the statute’s now-unconstitutional residual clause.2 We accordingly vacate his
conviction and remand for full resentencing. See Davis, 139 S. Ct. at 2336 (“[W]hen
a defendant’s § 924(c) conviction is invalidated, courts of appeals routinely vacate
the defendant’s entire sentence on all counts so that the district court may increase
the sentences for any remaining counts if such an increase is warranted.”)
(quotations omitted).
AFFIRMED in part, REVERSED and REMANDED in part.
1
The drug trafficking conspiracy cannot serve as the predicate offense for Davis’s
§ 924(c) conviction. Although the Second Superseding Indictment includes both
conspiracies as predicate offenses, the Government limited its § 924(c) theory at
trial to the RICO conspiracy. The jury instructions and verdict reflect this
limitation.
2
The Government attempts to salvage Davis’s § 924(c) conviction by arguing that
the RICO conspiracy satisfies the statute’s still-operative elements clause, 18
U.S.C. § 924(c)(3)(A), which defines “crime of violence” as a felony offense that
“has as an element the use, attempted use, or threatened use of physical force
against the person or property of another.” It doesn’t. Indeed, rather than specify
which of conspiracy’s elements fits this description, the Government falls back on
the objective-focused arguments previously used to satisfy the residual clause. But
that is no longer the law.
5