Case Information
*2 Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
____________
COLLOTON, Circuit Judge.
A jury convicted Anthony Cree, William Morris, and Wakinyan McArthur of criminal offenses stemming from their involvement with the Native Mob, a Minnesota prison and street gang. All three appeal and argue that the district court erred as to the sufficiency of the evidence, jury instructions, or sentencing. We affirm in part, reverse in part, and remand for further proceedings.
I.
A.
As each defendant challenges the sufficiency of the evidence in support of his
convictions, we recite the facts in the light most favorable to the verdicts.
United
*3
States v. Paris
,
In December 2009, McArthur called for a Mob meeting. At the meeting, Mob members elected a new group of leaders in the gang’s hierarchical structure. Kenneth Roberts was elected War Chief, and Christopher Wuori was named Cass Lake Representative. Members also agreed to hold monthly statewide meetings.
McArthur served as Chief of the Mob, the top leadership position, from 2010 until 2012. Under McArthur, members had easy access to firearms. Members could request a firearm from another member, or they could retrieve a firearm from one of several Mob associates who stored the weapons. The Mob also placed a premium on retaining firearms. At one meeting, McArthur instructed Mob members to “cherish” firearm ownership and to stop losing Mob weapons.
McArthur and Wuori also increased the Mob’s drug trafficking operations. The two men “pooled their money together” to purchase cocaine and divided equally the income derived from their drug sales. Wuori obtained cocaine from suppliers, and then converted the cocaine into crack cocaine. Wuori often completed the conversion process in a residence that he and McArthur shared in Cass Lake, Minnesota. Members frequented the house and assisted McArthur and Wuori in obtaining, packaging, and storing the drugs. McArthur and Wuori sold crack cocaine to several members, who then resold the drugs to individuals throughout Minnesota.
During McArthur’s term as Chief, he often encouraged members to harm rival gang leaders and others who posed a threat to the gang, urging members to be willing to “go out and shoot-‘em up.” At one of the Mob’s meetings, McArthur told members to attack an enemy of the Mob, instructing one member to shoot at the enemy’s residence. McArthur also said that the Mob “need[ed] to whack” the leader of an opposition gang, and that the leader’s death “would benefit us all.”
Amos LaDuke, a former associate of the Mob, was the victim of a Mob attack. In early 2010, Mob members, including Wuori and Cree, concluded that LaDuke “needed to be whacked.” Morris also participated in discussions about LaDuke, and Wuori planned to give Morris a “gun . . . in case he seen Amos somewhere.” On March 4, 2010, LaDuke was walking in Cass Lake when a car, owned by Cree, approached. Cree, Morris, and two other people were in the vehicle. Morris got out of the car, carrying a firearm as LaDuke started to run away. Morris fired several rounds toward LaDuke, striking LaDuke three times before a former police officer drove his truck between Morris and LaDuke and ended the encounter. Morris fled the scene; authorities arrested him nearby shortly thereafter. Cree and the others in the car drove away during the shooting, and Cree was apprehended in an unrelated incident later that month.
The Mob also went to great lengths to protect its drug distribution territory. Of particular concern to the Mob was Lawrence Daniels, a drug dealer who competed against the gang for control of the Cass Lake drug trade. Starting in May 2010, Mob members talked about harming Daniels in hopes of removing him from their territory. During one conversation, McArthur and Wuori told Mob members Roberts, Emilio Bunker, Jeremee Kraskey, Cory Oquist, and Pedro Sayers that they wanted to find Daniels and “eliminate him by any means.” McArthur and Wuori decided to send members to “get . . . information out” of a known associate of Daniels about Daniels’s whereabouts; from that excursion Mob members determined that Daniels was living in Bemidji, Minnesota.
Shortly after learning Daniels’s location, McArthur and other members, including Wuori, Bunker, Kraskey, and Roberts, discussed “going to Bemidji . . . and shooting” Daniels. On August 21, 2010, Wuori drove Bunker, Oquist, and Sayers to Bemidji, where the three men shot into a home where they believed Daniels lived. They realized soon after, however, that Daniels had no connection to the residence. In the presence of McArthur and Roberts, the four members recounted their error. Days later, on August 24, some of the same members made a second attempt on Daniels, shooting at the Raisch residence where Daniels was staying.
The Mob continued to pursue Daniels. At the request of McArthur and Wuori, Mob member Dale Pindegayosh agreed to participate in a home invasion to intimidate Daniels. On March 28, 2011, Pindegayosh and three other members, armed with firearms, broke into the home of Daniels’s father-in-law, John Wilke. Approximately two months later, McArthur and Wuori requested that Pindegayosh rob the Wilke home. Pindegayosh opted not to complete the crime, and that was the last evidence concerning Mob activity toward Daniels.
B.
Federal and state authorities began investigating the Native Mob as early as 2004. The investigation expanded after the LaDuke shooting. During the investigation, members-turned-informants wore recording devices to four Mob meetings in 2010 and 2011. Law enforcement officers conducted surveillance of several Mob members and installed GPS devices on vehicles used by members.
In January 2012, a grand jury charged Cree, Morris, McArthur, and others in a multicount indictment. Cree, Morris, and McArthur proceeded to trial. After a six- week trial, which included testimony from victims of Mob attacks, former Mob members, and investigators, a jury convicted the men of several charges. After the *6 trial, the district court denied the defendants’ motions for judgments of acquittal or, in the alternative, new trials.
Cree was convicted of conspiracy to participate in racketeering activity, see 18 U.S.C. § 1962(d), and conspiracy to distribute and possess with intent to distribute controlled substances. See 21 U.S.C. §§ 841(a), (b), 846. He also was convicted of four counts related to his involvement in the LaDuke shooting: conspiracy to use and carry firearms during and in relation to a crime of violence, see 18 U.S.C. § 924( o ), attempted murder in aid of racketeering, see id. §§ 1959(a)(5), 2, assault with a dangerous weapon in aid of racketeering, see id. §§ 1959(a)(3), 2, and use and carrying of a firearm during and in relation to a crime of violence. See id. §§ 924(c), 2. The district court sentenced Cree to 292 months’ imprisonment.
Morris’s convictions stemmed from the LaDuke shooting. He was convicted of attempted murder in aid of racketeering, assault with a dangerous weapon in aid of racketeering, use and carrying of a firearm during and in relation to a crime of violence, and possession of a firearm as a previously convicted felon. See id. § 922(g). Over Morris’s objection, the district court at sentencing ruled that Morris’s three prior Minnesota third-degree burglary convictions constituted “violent felonies” for purposes of the Armed Career Criminal Act. See id. § 924(e). Because the court found that Morris had at least three previous convictions for violent felonies, he was subject to a mandatory minimum 180-month sentence and a maximum of life on his conviction for possession of a firearm as a previously convicted felon, Count 6. See id. The court sentenced Morris to 360 months’ imprisonment on that count and to 420 months’ imprisonment total.
McArthur was convicted of conspiracy to participate in racketeering activity, conspiracy to use and carry firearms during and in relation to a crime of violence, conspiracy to distribute and possess with intent to distribute controlled substances, and distribution of a controlled substance. See 21 U.S.C. § 841(a), (b); 18 U.S.C. § 2. *7 He also was convicted of two counts of use and carrying of a firearm during and in relation to a crime of violence. See 18 U.S.C. §§ 924(c), 2. The first § 924(c) conviction, Count 10, was based on McArthur’s involvement in the shooting at the Raisch home, and the district court sentenced him to a mandatory 60-month term on that charge. Id. § 924(c)(1). The second § 924(c) conviction, Count 11, related to McArthur’s role in the Wilke home invasion. The court imposed a mandatory 300- month consecutive sentence for that conviction. Id. In total, the district court sentenced McArthur to 516 months’ imprisonment.
II.
A.
Cree’s lone argument on appeal is that the district court erred in denying his
motion for judgment of acquittal because the government presented insufficient
evidence to sustain his convictions. We review the denial of a motion for judgment
of acquittal
de novo
, viewing the evidence in the light most favorable to the verdict.
Paris
,
Cree first disputes the evidence in support of his conviction for conspiracy to participate in racketeering activity. See 18 U.S.C. § 1962(d). The government charged Cree with conspiring to violate 18 U.S.C. § 1962(c), a substantive provision of the Racketeer Influenced and Corrupt Organization (“RICO”) Act. Section 1962(c) prohibits “any person . . . associated with any enterprise engaged in . . . interstate . . . commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” To convict Cree under § 1962(d), the government was required to prove, inter alia , that a RICO enterprise existed and that Cree agreed that he or a coconspirator would *8 engage in a “pattern of racketeering activity.” Cree contests the evidence supporting these two findings.
A RICO enterprise includes “any union or group of individuals associated in
fact although not a legal entity.” 18 U.S.C. § 1961(4). An informal association of
individuals constitutes a RICO enterprise when it is “a continuing unit that functions
with a common purpose.”
Boyle v. United States
,
Cree argues that the Mob was not a RICO enterprise. Members, according to Cree, had no shared purpose and were a “loose assembly of acquaintances,” committing crimes randomly and in their own interests.
Trial testimony, however, provided ample support for the jury’s finding that the Mob constituted a RICO enterprise. The Mob had several purposes: Members worked to promote the Mob, develop its reputation, and protect its territory and members. At one meeting, McArthur reminded those in attendance that “[t]his ain’t about me. It ain’t about no individual person, man. It’s about us all.” For nearly two decades, the Mob operated as a coherent unit. Many members joined the Mob as teenagers and were in the gang for several years. The Mob had meetings, colors, signals, and symbols. Both written and unwritten rules governed members’ behavior. When a member violated one of the rules, Mob leaders meted out punishment, often in the form of a physical assault at the hands of other members. The Mob also used a hierarchical leadership structure, and when one leader stepped down, another member was selected for the role.
Sufficient evidence also supported the jury’s finding that Cree agreed that he or a coconspirator would engage in a “pattern of racketeering activity.” Section 1961(1) labels dozens of federal and state offenses as racketeering activities, including “any act or threat involving murder . . . or dealing in a controlled substance . . . , which is chargeable under State law and punishable by imprisonment for more than one year.” A “‘pattern of racketeering activity’ requires at least two acts of racketeering activity, . . . the last of which occurred within ten years . . . after the commission of a prior act of racketeering activity.” 18 U.S.C. § 1961(5).
To establish a “pattern of racketeering activity,” the government also must
prove two constituent elements: that the predicate acts of racketeering are related,
and “that they amount to or pose a threat of continued criminal activity.”
H.J. Inc. v.
Nw. Bell Tel. Co.
, 492 U.S. 229, 239 (1989). “Criminal acts are sufficiently
related . . . if they had the same or similar purposes, results, participants, victims or
methods of commission, or if they were otherwise ‘interrelated by distinguishing
characteristics’ as opposed to being ‘isolated events.’”
United States v. Hively
, 437
F.3d 752, 761-62 (8th Cir. 2006) (quoting
H.J. Inc.
,
Continuity of racketeering activity, “or its threat,
simpliciter
,” is a “temporal
concept.”
H.J. Inc.
,
Cree contends that the racketeering activity of which he was convicted, the charges relating to the shooting of LaDuke and drug distribution, were neither related to one another nor sufficient to show a threat of continued criminal activity. On this view, he thus never agreed to participate in a “pattern of racketeering activity.”
Cree’s arguments are unpersuasive. Evidence supported the jury’s finding that
the LaDuke shooting and Cree’s drug distribution amounted to a pattern of
racketeering activity. The acts were related, in that Cree, Wuori, and other Mob
members participated in both crimes, and the acts represented a consistent desire to
further the Mob’s activities.
See United States v. Darden
,
Cree next complains that there was insufficient evidence to convict him of
conspiring to distribute and possess with intent to distribute controlled substances.
But sufficient evidence supported this conviction as well. Testimony showed that
Mob members were engaged in a drug conspiracy and that Cree knowingly
participated in the conspiracy.
See United States v. Ramirez
,
Cree’s last argument is that the evidence did not demonstrate his “complicity” in the LaDuke shooting, a finding necessary for his four convictions relating to that incident. Cree insists that he did not know Morris was going to shoot LaDuke. The record, however, shows that Cree was aware of the impending attack on LaDuke and *11 assisted Morris in completing the crime. Cree discussed harming LaDuke with Morris and other members, and he was present when Wuori agreed to provide a gun to Morris in case Morris encountered LaDuke. And LaDuke testified that about fifteen minutes before the shooting, he twice observed Cree staring at him as Cree and another man drove past his location. It was the jury’s prerogative to determine LaDuke’s credibility.
Cree’s recounting of the day of the attack to fellow members further demonstrates his knowing participation in the incident. Cree told members that he had found locations that LaDuke frequented and saw LaDuke “slippin’” ( i.e. , leaving himself vulnerable to attack) in one such location. Cree then retrieved a firearm and picked up Morris to “take care” of LaDuke. On this record, a reasonable jury could convict Cree of the charges relating to the LaDuke attack, and the district court properly denied Cree’s motion for judgment of acquittal.
Cree also argues that the district court should have granted his motion for a
new trial because the verdict was against the weight of the evidence. In the district
court, however, Cree did not move for a new trial based on the weight of the
evidence; as a result, his claim is procedurally barred on appeal, and we need not
consider it.
United States v. Flynn
,
B.
Morris raises three claims of error. Morris first avers that the district court wrongly denied his motion for judgment of acquittal because there was insufficient evidence to convict him of either attempted murder in aid of racketeering or assault with a dangerous weapon in aid of racketeering. See 18 U.S.C. §§ 1959(a), 2. Morris does not dispute the existence of a RICO enterprise engaged in racketeering activity that affected interstate commerce or that he assaulted and attempted to murder *12 LaDuke with a firearm. Morris instead alleges that the government did not demonstrate that he attacked LaDuke for a purpose listed in the statute—in this case, to maintain or increase his position in the Mob—because there was not proof beyond a reasonable doubt that he was, in fact, a Mob member. See id. § 1959(a) .
The evidence was sufficient for the jury to conclude that Morris was a Mob member and that he shot LaDuke to maintain or increase his status in the gang. Morris discussed shooting LaDuke with other members, and some of those members later assisted Morris in carrying out the attack. A former member testified that in 2010, Wuori introduced him to Morris “as if [Morris] was Fam,” a term members used to denote membership in the gang. While some members may not have been aware of Morris, witnesses attested that members often did not know everyone in the Mob due to the Mob’s large membership. Morris’s communications on the day of the shooting and during his subsequent incarceration further support a finding that he was a Mob member. Near the time of the shooting, Morris used a cellular telephone to call a telephone number at which both McArthur and Wuori were known to receive calls. While in prison, Morris contacted several Mob members via telephone and mail, including Cree, McArthur, and Wuori, and represented himself as a member of the Mob. And it is undisputed that members increased their standing in the gang by committing violent crimes. Thus, the jury reasonably decided that Morris attacked LaDuke to maintain or increase his position in the Mob.
Morris next asserts that the jury instructions on the § 1959(a) charges
constructively amended the indictment. An indictment is constructively amended
when the government or court alters the essential elements of an offense set forth in
the indictment.
United States v. Mariano
,
Morris’s last argument is that the district court erred in ruling that his prior third-degree burglary convictions constituted violent felonies under the Armed Career Criminal Act. Morris was convicted for possession of a firearm as a previously convicted felon. See 18 U.S.C. § 922(g). This offense carries a maximum sentence of 120 months’ imprisonment. Id . § 924(a)(2). The Armed Career Criminal Act, however, provides for an enhanced sentence of 180 months to life in prison on a § 922(g) conviction, if the defendant “has three previous convictions . . . for a violent felony.” See id. § 924(e)(1). Over Morris’s objection, the district court found that Morris had four prior “violent felony” convictions, three of which were for third- degree burglary in Minnesota, and that he was subject to the enhancement. The court thus imposed a 360-month sentence for Morris’s violation of § 922(g).
Morris’s initial position on appeal was that the Minnesota third-degree burglary statute, Minn. Stat. Ann. § 609.582, subd. 3, sets forth multiple, alternative versions of the crime, that at least one of the statute’s alternatives is not a violent felony, and that the district court should have applied the “modified categorical approach” to determine whether his convictions were violent felonies. Morris then revised his position in light of Mathis v. United States , 136 S. Ct. 2243 (2016), which was decided after this case was submitted. He now urges that the Minnesota statute is indivisible and that the offense is not a violent felony. The government agrees that the statute is indivisible but argues that third-degree burglary qualifies as generic “burglary” under § 924(e). We conclude that Morris is correct.
The Minnesota third-degree burglary statute provides that:
Whoever enters a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building, or enters a building without consent and steals or commits a felony or gross misdemeanor while in the building, . . . commits burglary in the third degree and may be sentenced to imprisonment for not more than five years . . . .
Minn. Stat. Ann. § 609.582, subd. 3. “Enters a building without consent” includes either entering or remaining in a building without the owner’s consent. Id. § 609.581, subd. 4.
The Armed Career Criminal Act defines “violent felony” to include burglary
that is “punishable by imprisonment for a term exceeding one year.” 18 U.S.C.
§ 924(e)(2)(B). To determine whether a prior burglary conviction is a violent felony,
we typically apply the “categorical approach.”
Mathis v. United States
, 136 S. Ct.
2243, 2247-48 (2016). In that analysis, we compare the elements of the statute under
which the defendant was convicted with the “generic” definition of burglary set forth
in
Taylor v. United States
,
Mathis explained that when a statute of conviction is phrased alternatively, the court must determine whether the listed alternatives are elements of different crimes or factual means of satisfying a single element of a single crime. If the alternatives are “means,” then the statute sets out a single set of elements to define a single crime, *15 and the court must apply the categorical approach to determine whether an offense of conviction qualifies as a violent felony.
Here,
Mathis
requires us to treat the alternatives in the Minnesota third-degree
burglary statute as “means” rather than “elements.” The most helpful Minnesota
court decision, although not precedential, holds that jury unanimity is not required as
to one prong or the other of the burglary statute, thus suggesting that the alternatives
are means rather than elements.
State v. Gonzales
, No. A15-0975, 2016 WL
3222795, at *2-3 (Minn. Ct. App. June 13, 2016). Morris’s charging documents
underlying the prior convictions alleged both alternatives of third-degree burglary,
again suggesting they are means rather than elements.
Mathis
,
The government argues that we have ruled already that convictions under
§ 609.582, subd. 3, qualify as violent felonies. But the cases on which the
government relies are inapposite. The decision in
United States v. Sonczalla
, 561
F.3d 842, 846 (8th Cir. 2009), concerned an earlier version of the third-degree
burglary statute, enacted in 1986, that did not contain the second alternative in the
current statute.
See
Minn. Stat. Ann. § 609.582, subd. 3 (1986).
United States v.
Constantine
,
The first alternative of § 609.582, subd. 3, forbids “enter[ing] a building
without consent and with intent to steal or commit any felony or gross misdemeanor”
while inside.
Taylor
defines “generic” burglary as “an unlawful or unprivileged entry
into, or remaining in, a building or other structure, with intent to commit a crime.”
The second alternative of the Minnesota statute provides that “whoever enters
a building without consent and steals or commits a felony or gross misdemeanor”
while inside commits third-degree burglary. That portion of the statute, however,
does not include the element of “intent to commit a crime” at the time of the unlawful
entry or remaining.
See State v. Benedict
, No. A13-1324,
The government contends that the generic definition of burglary is broad
enough to encompass the second alternative under § 609.582, subd. 3.
Taylor
said
that generic burglary includes “remaining in” a building with intent to commit a
crime.
We reject this reading of Taylor . Taylor provides that burglary occurs when an offender enters or remains in a building or structure “ with intent to commit a crime.” Id. (emphasis added). The most natural reading of Taylor and the sources on which it relied show that a generic burglary requires intent to commit a crime at the time of the unlawful or unprivileged entry or the initial “remaining in” without consent. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.13(b), (e), at 468, 473-74 & n.101 (1986) (noting that the “intent to commit a crime within need only exist at the time the defendant unlawfully remained within”); Model Penal Code § 221.1, cmt. (1), (3) (Am. Law Inst. 1980) (referencing the “purpose that accompanies the entry,” and “the purpose that must accompany the intrusion”).
The act of “remaining in” a building, for purposes of generic burglary, is not
a continuous undertaking. Rather, it is a discrete event that occurs at the moment
when a perpetrator, who at one point was lawfully present, exceeds his license and
overstays his welcome.
See
LaFave & Scott,
supra
, § 8.13(b), (e), at 467-68 & n.47,
473-75 (distinguishing between burglary statutes that require intent to be
contemporaneous with the unlawful entry or remaining and those providing “that
actual commission of the offense within is an alternative basis for conviction”). If the
defendant does not have the requisite intent at the moment he “remains,” then he has
not committed the crime of generic burglary. The government’s reading of
Taylor
would render the “unlawful entry” element of generic burglary superfluous, because
every unlawful entry with intent would become “remaining in” with intent as soon as
the perpetrator enters.
Accord United States v. Herrera-Montes
,
Because a conviction under the second alternative of § 609.582, subd. 3, does not require that the defendant have formed the “intent to commit a crime” at the time of the nonconsensual entry or remaining in, it does not satisfy the generic definition of burglary in Taylor . As a result, the indivisible statute is broader than generic burglary, and Morris’s third-degree burglary convictions do not qualify as violent felonies. Accordingly, we vacate Morris’s sentence and remand for further proceedings.
C.
1.
McArthur raises three claims of error on appeal. All three involve his two
convictions for aiding and abetting the use or carrying of a firearm during and in
relation to, or the possession of a firearm in furtherance of, a crime of violence.
See
18 U.S.C. §§ 924(c), 2. He first argues that the district court violated his rights under
the Double Jeopardy Clause by imposing consecutive sentences for those convictions,
because the convictions arose from one predicate offense, conspiracy to participate
in a pattern of racketeering activity. Although our circuit precedent rejects this claim,
see, e.g.
,
Hamberg v. United States
,
The Supreme Court addressed a comparable situation in
Rinaldi v. United
States
, 434 U.S. 22, 29 (1977) (per curiam), where the government prosecuted a
defendant in violation of its
Petite
policy against multiple prosecutions by separate
sovereigns for the same act.
See Petite v. United States
,
McArthur next contends that the jury instructions as to Count 10, the remaining
§ 924(c) charge, did not comply with
Rosemond v. United States
,
Although the Supreme Court decided
Rosemond
after McArthur’s trial, we
apply the case retroactively to cases on direct review.
Johnson v. United States
, 520
U.S. 461, 467 (1997). But because McArthur did not object in the district court to the
instructions he now challenges, we review only for plain error.
Id.
at 466. To obtain
relief, McArthur must show that there was an error that was obvious, rather than
subject to reasonable dispute, and that the error affected his substantial rights and
seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Id.
at 466-68;
see Puckett v. United States
,
McArthur complains that the district court’s instructions for the charges of aiding and abetting a violation of § 924(c) did not require the jury to find that he had advance knowledge that a confederate would use or carry a firearm during the Raisch shooting. The elements instruction for aiding and abetting Count 10 required the jury to find beyond a reasonable doubt that McArthur “must . . . have known that someone *21 was going to knowingly use or carry a firearm during or in relation to, or possess a firearm in furtherance of, the crime of conspiracy to participate in a racketeering enterprise.” McArthur argues that the instruction permitted the jury to convict him based on a finding that he had advance knowledge that a coconspirator would use, carry, or possess a firearm at some point during the conspiracy in general, as opposed to advance knowledge that a coconspirator would use, carry, or possess a firearm during the attack on the Raisch home.
The government does not address McArthur’s premise that what he refers to
as “general” knowledge is insufficient to support a § 924(c) conviction under an
aiding and abetting theory of liability.
Rosemond
says that the defendant must know
in advance that a confederate will carry a gun during commission of the predicate
crime.
Assuming, therefore, that Rosemond required McArthur to have advance knowledge that a firearm would be used during the Raisch shooting, the jury instructions about which McArthur complains were not plainly erroneous. The jury was instructed that to convict McArthur for aiding and abetting in the commission of Count 10, McArthur “must . . . have known that someone was going to knowingly use *22 and carry a firearm during and in relation to, or possess a firearm in furtherance of, the crime of conspiracy to participate in a racketeering enterprise.” The jury knew, however, that Count 10 charged that “on or about August 24, 2010, Defendant McArthur . . . knowingly used and carried a firearm during and in relation to, and possessed a firearm in furtherance of, a crime of violence.” The instruction listing the elements required by § 924(c) likewise directed the jury that a necessary element of the charge was that “on or about August 24, 2010, the defendant, or another person aided and abetted by the defendant, did knowingly use or carry a firearm during and in relation to, or possess a firearm in furtherance of, that crime.” And the jury was told that it was considering whether McArthur “aided and abetted in the commission of Count 10.” Given that the references to the date of the Raisch shooting focused the jury on the specific firearm use on which Count 10 was premised, there is at least a reasonable dispute about whether the instructions, taken as a whole, fairly and adequately submitted to the jury the “advance knowledge” question. Any error is thus not plain.
We also conclude that the district court did not err in denying McArthur’s motion for judgment of acquittal on Count 10. There was evidence that McArthur wanted to “eliminate [Daniels] by any means,” and that he was part of the group that decided to find Daniels and “shoot him.” Members involved in those conversations then mistakenly shot into a home in which they believed Daniels was staying; they informed McArthur of the mishap. Days later, members attacked the Raisch residence with Daniels as the target. Based on this evidence, along with testimony concerning the Mob’s propensity for firearms and McArthur’s decision-making authority as Chief, a reasonable jury could have found him guilty on Count 10.
2.
Having concluded that one of McArthur’s convictions should be vacated on the government’s request, we must determine the appropriate remedy. The district court *23 sentenced McArthur to a total of 516 months’ imprisonment, but 300 months were attributable to the second § 924(c) conviction that will be vacated. The government contends that under the “sentencing package” doctrine, we should vacate McArthur’s sentences on all of his convictions and remand for resentencing. McArthur responds that the court should vacate only the sentence for Count 11, and remand with instructions to leave the sentences on his remaining convictions unchanged. Under that approach, McArthur’s total sentence would be reduced from 516 months to 216 months’ imprisonment.
Under the sentencing package doctrine, we “may vacate the entire sentence on
all counts so that, on remand, the trial court can reconfigure the sentencing plan to
ensure that it remains adequate to satisfy the sentencing factors in 18 U.S.C.
§ 3553(a).”
Greenlaw v. United States
,
This is an appropriate case for application of the sentencing package doctrine. McArthur was charged in a multicount indictment and convicted of several crimes. He has successfully challenged one of those convictions on appeal. When the district court determined McArthur’s sentence on the remaining counts, the court acted on the assumption that he would receive a 300-month consecutive sentence for Count 11. With that sentence vacated, the district court should have an opportunity to decide whether a term of 216 months’ imprisonment is sufficient to comply with the purposes set forth in 18 U.S.C. § 3553(a)(2). See United States v. Cureton , 739 F.3d 1032, 1045 (7th Cir. 2014).
McArthur claims that the sentencing package doctrine applies only when the
vacatur of one conviction permits the district court at resentencing to apply a new
enhancement under the advisory sentencing guidelines.
See Gardiner v. United
*24
States
, 114 F.3d 734, 736 (8th Cir. 1997). But
Gardiner
simply mentioned that
possibility as one factor favoring resentencing, and our precedent should not be read
as narrowly as McArthur suggests. In
Bruguier
, for example, this court vacated all
of the defendant’s sentences and remanded for resentencing without purporting to
satisfy the limitation that McArthur proposes. 735 F.3d at 764. McArthur also
argues that the district court may not alter his sentences on his remaining convictions
without violating the Double Jeopardy Clause. A defendant, however, has no
expectation of finality in his sentence until an appeal is concluded, and the Double
Jeopardy Clause “does not bar resentencing on all counts to carry out the sentencing
judge’s original intent.”
United States v. Evans
,
* * *
For the foregoing reasons, we affirm the judgment as to Cree. We affirm Morris’s convictions but vacate his sentence and remand for further proceedings. We vacate McArthur’s conviction on Count 11, affirm his remaining convictions, vacate McArthur’s entire sentence, and remand for resentencing.
______________________________
Notes
[*] Neither
United States v. Pledge
,