United States v. Gullett-El Taquan-Rashe

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2019
• Docket: 17-50093
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50093; 17-50096

Plaintiff-Appellee, D.C. No. 2:14-cr-00725-CAS-1 v.

GULLETT-EL TAQUAN-RASHE, MEMORANDUM *

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Argued and Submitted February 4, 2019 Pasadena, California

Before: WARDLAW and BEA, Circuit Judges, and DRAIN,** District Judge.

Gullett-El Taquan-Rashe (“Gullett”) raises two issues in this consolidated

appeal. First, Gullett challenges his convictions of making a false claim against a

government agency (Counts One and Two), in violation of 18 U.S.C. § 287, and

attempting to file a false lien or encumbrance against government employees or

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. officials (Counts Three and Four), in violation of 18 U.S.C. § 1521. He argues the

district court erred in revoking his pro se status prior to trial, thereby mandating a

reversal of his convictions. Second, Gullett challenges the district court’s

imposition of a two-level sentencing enhancement under U.S.S.G. §

2A6.1(b)(2)(B), arguing the court erred in finding his offenses involved more than

two false liens or encumbrances. We have jurisdiction pursuant to 28 U.S.C. §

1291. We affirm.

1. The district court did not err in revoking Gullett’s pro se status. Gullett

implicitly consented to the revocation of his Faretta rights when standby counsel

stated on the record, with Gullett present, that Gullett preferred representation if

the court was going to proceed to trial without a continuance, and, when given the

opportunity to speak, he did not object. See McKaskle v. Wiggins, 465 U.S. 168,

182 (1984) (“A defendant can waive his Faretta rights. . . . Even when he insists

that he is not waiving his Faretta rights, a pro se defendant’s solicitation of or

acquiescence in certain types of participation by counsel substantially undermines

later protestations that counsel interfered unacceptably.”). Absent any indication

that Gullett opposed standby counsel’s statement, the district court had no way of

knowing that he held a different position on the matter, assuming he did in fact

hold such a position at the time. See id. at 179 (holding Faretta rights are

adequately vindicated where the defendant has the opportunity to address the court

2 freely and disagreements with standby counsel are resolved in the defendant’s

favor).

2. Nor did the district court err in imposing a two-level sentencing

enhancement under § 2A6.1(b)(2)(B). In determining whether to apply an

enhancement under § 2A6.1(b)(2)(B), courts are permitted to consider all “relevant

conduct” that occurred prior to and during the offense of conviction. See U.S.S.G.

§ 2A6.1(b)(2)(B), cmt. n.1; U.S.S.G. § 1B1.1, cmt. n.1(H). Relevant conduct

includes “all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant.” U.S.S.G. §

1B1.3(a)(1)(A). It follows that courts may consider uncharged conduct when

determining whether to apply an enhancement under § 2A6.1(b)(2)(B). See United

States v. Horob, 735 F.3d 866, 872 (9th Cir. 2013).

Counts Three and Four of Gullett’s convictions were predicated on a

December 1, 2010 filing in Los Angeles County, California that attempted to

impose false liens on the property of two IRS employees, Barbara Gourley and

Maureen Green. While the underlying indictment named only Gourley and Green

as victims, Gullett’s 2010 California filing also purported to impose false liens on

the property of two additional government officials, J. Russell George and Douglas

Shulman. Consequently, Gullett’s 2010 California filing, in and of itself, provided

3 sufficient grounds to find his offenses involved more than two false liens or

encumbrances.

AFFIRMED.