United States v. Israel Washington

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2020
• Docket: 17-10141
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10141

Plaintiff-Appellee, D.C. No. 2:13-cr-00206-MCE-1 v.

ISRAEL WASHINGTON, AKA Puck, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted November 12, 2019 San Francisco, California

Before: THOMAS, Chief Judge, and WARDLAW and COLLINS, Circuit Judges.

Israel Washington appeals his conviction and sentence for two conspiracies

to distribute controlled substances and related crimes. We have jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

1. The district court did not plainly err in failing to sua sponte give a

conspiracy unanimity instruction for the Count One conspiracy. See United States

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v. Olano, 507 U.S. 725, 732–37 (1993); United States v. Lapier, 796 F.3d 1090,

1096 (9th Cir. 2015). The jury, in its special verdict form, found Washington

guilty of a conspiracy involving crack cocaine. Although there was evidence of

multiple conspiracies involving powder cocaine or heroin, the evidence at trial

showed that only one of the multiple conspiracies—between Washington, Paul

Mack, Gerard “Nunu” Nelson, and Nunu’s girlfriend—involved crack cocaine.

Thus, the district court did not plainly err in failing to give a conspiracy unanimity

instruction, because the evidence did not “tend[] to show multiple conspiracies”

involving crack cocaine, and there was no “genuine possibility of jury confusion

[or] risk of a nonunanimous verdict.” Lapier, 796 F.3d at 1097–98.

2. The district court did not abuse its discretion in deciding not to read back

Paul Mack’s testimony to the jury. See United States v. Richard, 504 F.3d 1109,

1113 (9th Cir. 2007). The district court explained its legitimate concerns with both

the delay of trial a readback would require and the risk of undue emphasis. See

United States v. Price, 921 F.3d 777, 792 (9th Cir. 2019). Washington makes fair

arguments as to why a readback may have been reasonable had one occurred. But

“[i]n light of the district court’s great latitude to address requests for readbacks and

its recognition of the problems associated with readbacks,” United States v.

Medina Casteneda, 511 F.3d 1246, 1249 (9th Cir. 2008), we cannot say the district

court’s decision to deny the readback was “illogical, implausible, or without

2 support in inferences that may be drawn from facts in the record,” United States v.

Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

3. We find no reversible error in the guideline sentencing calculation. The

district court did not clearly err in finding that Washington was an organizer or

leader of the Count Two conspiracy and that it involved five participants. U.S.S.G.

§ 3B1.1(a); see United States v. Yi, 704 F.3d 800, 805 (9th Cir. 2013) (explaining

factual findings are reviewed for clear error). Nor did the district court err in

applying three criminal history points for Washington’s 1992 conviction for

possession of a controlled substance, because Washington was incarcerated for a

parole violation within the 15-year time period. U.S.S.G. § 4A1.2(e)(1), (k)(2)(A);

see United States v. Garcia-Jimenez, 623 F.3d 936, 944–45 (9th Cir. 2010)

(applying U.S.S.G. § 4A1.2(k)(2) to extend a sentence through the date of “last

release from confinement” on a parole violation).

Finally, we reject Washington’s claim that the district court abused its

discretion in assessing a two-level enhancement for witness intimidation under

U.S.S.G. § 2D1.1(b)(16)(D). We note that this enhancement did not affect

Washington’s guideline range, which the district court calculated as 360 months to

life. Washington does not contest that he is also a career offender whose guideline

range would have been 360 months to life regardless of the enhancement.

U.S.S.G. § 4B1.1(a)–(b). To the extent that the enhancement may have influenced

3 the district court’s selection of a sentence within the guidelines range, we find no

basis for concluding that the court abused its discretion. The record included at

least three alleged incidents of witness intimidation, one of which was the subject

of trial testimony. Although each incident involved some element of hearsay, the

district court did not abuse its discretion because the hearsay statements “were

sufficiently corroborated by each other to provide the minimal indicia of reliability

necessary[.]” United States v. Berry, 258 F.3d 971, 976–77 (9th Cir. 2001)

(finding that multiple hearsay statements that were consistent with each other

provided sufficient corroboration to be considered at sentencing).

AFFIRMED.