UNITED STATES v. SELLERS (2018)

MEMORANDUM *** and ORDER

Daryle Lamont Sellers appeals the district court’s denial of his motion to dismiss the indictment for outrageous government conduct. Following a jury trial, Sellers was convicted of conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

1. We have previously upheld a stash house reverse-sting operation as not rising to the level of outrageous government conduct. United States v. Black, 733 F.3d 294, 304–10 (9th Cir. 2013). The facts of this case are not materially distinguishable from those in Black.

2. The remaining arguments presented by Sellers lack merit.¹ First, the district court was permitted to make a finding regarding drug quantity in order to calculate the guidelines sentencing range. See United States v. Brown, 347 F.3d 1095, 1100 (9th Cir. 2003). Second, Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), is inapplicable because the jury acquitted Sellers of the 18 U.S.C. § 924(c) charge and the district court did not apply a mandatory minimum at sentencing. Finally, the district court did not err by considering evidence that the conspiracy involved the use of firearms at sentencing. United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam).

3. We address Sellers’ challenge to the denial of discovery on his selective enforcement claim in a separate, concurrently filed opinion.

The claims addressed in this disposition are

AFFIRMED.

FOOTNOTES

1.   Sellers’s unopposed motion for permission to file a pro se supplemental brief (docket entry no. 28) is GRANTED, and thus we also consider the arguments asserted in that brief.