United States v. Harris, 2012 U.S. App. LEXIS 19609

Harris was convicted under 18 U.S.C. § 1962(d) for conspiracy to commit a substantive RICO violation and sentenced to 188 months, with other counts adjudicated.
The Crips in Wichita, Kansas consist of sets (Insane Crips, Deuce Trey Crips, Neighborhood Crips, Tre Five Seven Crips) that socialize separately but collaborate in drug trafficking and criminal activity.
Harris and co-defendants were tried together; Harris was acquitted on several counts but convicted on RICO conspiracy (Count 2), felon-in-possession (Count 17), and wire fraud (Count 21).
The district court reduced Harris’s offense level for sentencing, resulting in an advisory range of 188–235 months and a concurrent sentence structure.
The government asserted Harris participated in an association-in-fact enterprise; Harris contested the need for an enterprise and challenged the jury instructions.
Harris challenged the withdrawal defense, arguing he withdrew from the conspiracy, but the court found insufficient evidence of withdrawal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is enterprise existence required for § 1962(d) conspiracy?	Harris argues enterprise is an element per Smith and must be proven.	Harris contends the district court misstated law by omitting enterprise.	Enterprise not required; instruction correct.
Sufficiency of evidence to prove RICO conspiracy	Harris claims insufficient evidence of conspiracy under § 1962(d).	Government showed association-in-fact enterprise or viable alternative under Boyle/Hutchinson.	Sufficient evidence to convict under either approach.
Withdrawal instruction for conspiracy	Harris seeks jury instruction on withdrawal defense.	No withdrawal instruction warranted given evidence.	No withdrawal instruction required; not sufficiently proven.
Concurrent-sentence doctrine and review of sentence	Challenge to the RICO sentence should be reviewed notwithstanding concurrency.	Ray abrogates concurrent-sentence doctrine when appealing multiple convictions with per-count assessments.	Court declines to review sentence under concurrent-sentence doctrine.

Salinas v. United States, 522 U.S. 52 (1997) (conspiracy vs. substantive offense distinctions in § 1962(d))
Applins, 637 F.3d 59 (2d Cir. 2011) (articulates standard for conspiracy without requiring enterprise existence)
Boyle v. United States, 556 U.S. 938 (U.S. 2009) (association-in-fact enterprise may be shown without strict Smith structure)
Hutchinson, 573 F.3d 1011 (10th Cir. 2009) (adopts Boyle approach to association-in-fact enterprise)
Smith, 413 F.3d 1253 (10th Cir. 2005) (initial framework for enterprise and conspiracy elements (later superseded))
Randall, 661 F.3d 1291 (10th Cir. 2011) (gang withdrawal standard: report to authorities or notify conspirators)
Turkette, 452 U.S. 576 (1981) (distinction between enterprise and pattern in RICO)
Salinas, 522 U.S. 52 (1997) (see above (listed for emphasis of textual distinction))