In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-3052, 99-3677, 99-3937 & 00-1045

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JARRODE E. PHILLIPS, also known as JAKE,

also known as TRIFE, also known as

TRIFLING;

FRANK E. STORK; LAMAR TAYLOR, also known

as BULLET; and JOHN S. WAFFORD, also known

as J. HENDERSON, also known as VIETNAM,

Defendants-Appellants.

Appeals from the United States District

Court

for the Northern District of Indiana,

South Bend Division.

No. 3:98 CR 67--Robert L. Miller, Jr.,

Judge.

Argued May 31, 2000--Decided February 1, 2001

 Before FLAUM, Chief Judge, and BAUER and

HARLINGTON WOOD, JR., Circuit Judges.

 HARLINGTON WOOD, JR., Circuit Judge. 

Following jury trials, defendantsappellants were convicted on numerous

counts relating to their involvement with

the Dawg Life street gang in South Bend,

Indiana, and now appeal. 

I. BACKGROUND

 On April 19, 1999, after a three-week

trial, a jury found three of the

defendants guilty as follows: Phillips of

maintaining a place for the purpose of

manufacturing, distributing, or using a

controlled substance, relating to the

crack house at 303 LaPorte Street and the

crack house at 1115 East Indiana Street,

and possessing firearms as a felon; Stork

of committing a violent crime in aid of

racketeering in violation of the
Racketeering Influenced and Corrupt

Organizations Act ("RICO"), 18 U.S.C.

sec.sec. 1961-68, and use of a firearm

during a crime of violence; and Taylor of

committing a violent crime in aid of

racketeering activity in violation of

RICO, using a firearm in relation to a

violent crime, and helping to maintain a

crack house at 1115 East Indiana Street.

On October 13, 1999, after a separate

two-day jury trial, Wafford was convicted

of committing a violent crime in aid of

racketeering in violation of RICO,

possessing a firearm after having been

convicted of a felony, and using a

firearm during a crime of violence.

 Because both trials contained much of

the same testimony and evidence, the

background information from the two

trials is presented together. As several

of the issues concern the sufficiency of

the evidence, the facts are set forth in

detail.

 Testimony showed that Dawg Life began in

the early 1990s as the Southeast Side

Dogs street gang, operating in specific

territory on the southeast side of South

Bend, Indiana. The gang was involved in

the sale of illegal drugs, particularly

cocaine, both on the street and from

certain gang-operated crack houses. The

price paid to acquirecocaine depended on

the amount the member could sell as well

as his rank in the gang. The more cocaine

a member sold, the lower the price he

paid. Certain crack houses were

controlled by Dawg Life, with only

members allowed to sell drugs from the

house.

 The lowest-ranking members of Dawg Life

were referred to as "Little Locs," with

"G. Locs" ("Gangsta Loc") being the next

ascending rank. The highest-ranking

members were known as "O.G.s" ("Original

Gangsta"). There were identifying

handshakes for each rank within the gang.

The higher-ranking members received more

privileges. Lower-ranking members went to

higher-ranking members for drugs in order

to make money. One of the Little Locs

testified that Wafford, an O.G., had

suggested the Little Locs pool their

money, which they then gave to Wafford

until they had a greater amount to

purchase cocaine based on the fact that

the price was incrementally less when

purchased in greater quantities.
 Like other gangs, Dawg Life used hand

signs to identify themselves as members

and to differentiate themselves not only

from other gangs but from friendly

subgroups which developed within the

gang. Two subgroups within Dawg Life were

the Dawgy Style Mafia ("D.S.M.") and the

Rush ("Ruthless Unstoppable Street

Hustlers") Street Gangstas ("R.S.G.").

Phillips and Stork were G. Locs in the

R.S.G. Taylor was a G. Loc in the D.S.M.

Wafford was an O.G. in the D.S.M. Members

also identified themselves by wearing the

Dawg Life colors of brown and black (the

colors of a Rottweiler or Doberman

pinscher).

 Dawg Life members advanced in rank by

committing acts of violence, which

increased the member’s reputation within

the gang and correspondingly increased

the gang’s reputation within the

community. Members would "put in work" in

order to advance. One member testified

that "putting in work" meant "shooting,

robbing, whatever," and that he was

encouraged to shoot a rival gang member

because it "might get you a higher rank."

One member’s brother moved up a rank when

he shot someone. Another member stated

that an act of violence like a shooting

"increases the [member’s] position in the

gang and they recognize and respect him

more." Members could be voted out of the

gang if they were not deemed sufficiently

violent. One of the witnesses testified

he had been voted out of Dawg Life

because he "wasn’t ready for the funk,"

defining funk to mean, "like a war or

something."

 Retaliation also gained a member respect

and advancement. Members of Dawg Life

lived by the saying "Retaliation is a

Must." The gang produced and distributed

CDs and tapes to members only, which

contained a song entitled "Retaliation is

a Must."

 Dawg Life also used hand signs to show

disrespect to rival gangs or any non-gang

persons. One of the threatening signs

flashed was O.B.K., meaning "Off Brand

Killer." Anyone not from the southeast

side was labeled "off brand," and Dawg

Life members flashed the sign to warn

anyone "off brand" of what the gang might

do to them. One witness testified that he

was walking with about five friends when
two black males approached them and threw

the O.B.K. sign, which, the witness said,

was like a warning "right before an enemy

about to attack." When one of the black

males pulled a handgun and began firing,

the witness was shot in the ankle. The

same witness was also physically

assaulted on another occasion by males

who identified themselves as members of

Dawg Life. 

 The gang also used personalized graffiti

on rival gangs’ territory to show

disrespect, such as O.B.K. and "Dawg Life

4 Life."/1 It was not uncommon for Dawg

Life and rival gangs to exchange gunfire.

Dawg Life members responded violently

when rivals spoke badly of them or showed

disrespect. Members would either beat up

or shoot rivals. Dawg Life members would

also assault any non-member who attempted

to sell crack from one of their houses. 

 All members of Dawg Life attended

"meeting[s] with a purpose" (clarified as

"not just a party"). Discussions at these

meetings included obtaining money to

purchase cocaine, what would be done to

anyone selling cocaine who was not a Dawg

Life member, driving out rival drug

dealers who were selling in their

southeast territory, and the use of

particular weapons in shootings.

Stork Shooting of Charlotte Flemming

 On August 29, 1997, at approximately

11:30 a.m., a mail carrier was near a

home at 1143 Huey Street, which is

located on the north side of South Bend

within the territory of the Huey Street

Posse, one of Dawg Life’s rivals. A

police officer testified that 1143 Huey

was the residence of Leroy and Charles

Humbles, members of the Vice Lords/Huey

Street Posse gang. 

 The mailman saw a stranger in the front

yard of the home fire several shots in a

north-northeasterly direction. Almost

immediately after, he saw a car coming

from the north corner slow to a near stop

in front of 1143 Huey. He then heard two

shots being fired and saw the car speed

away. One witness stated that he believed

the shots were fired from the passenger

side of the car. The mailman provided

police with a detailed description of the

car and a partial license plate number.

Moments before the shooting, a high
school student in the area saw someone in

the car flash the O.B.K. sign. This

student had previously been shot by a

Dawg Life member who first flashed the

O.B.K. sign at him. The student also

recognized the car as belonging to a Dawg

Life member. The car was easily

identifiable because the body was black

with gold rims and had a visible blue

primer spot on one door.

 Within minutes after the shooting,

police saw a car matching the description

given by the mailman and began following.

After a chase, the car eventually stopped

and four occupants fled on foot. Police

apprehended two of the occupants, one of

whom exited from the front passenger side

and was identified as Frank Stork. A .44

caliber,-semi-automatic handgun

manufactured in Israel, was recovered

from the car. Casings found in the car

and on Huey Street were both fired from

the .44. Stork, who identified himself as

a Dawg Life member, eventually admitted

that he had fired the handgun in the

direction of the house. He stated that he

had heard shots fired and then fired his

gun. Dawg Life held a meeting shortly

after the shooting and testimony was

given that at the meeting Stork discussed

the type of gun used for the shooting and

the problems he had with firing the gun.

 Charlotte Flemming, age 4, was inside

the home at 1143 Huey and was injured by

metal fragments from the aluminum storm

door striking her face when shots

penetrated into the house. Two fragments

imbedded in her face, one in her cheek

and the other above her eye. The

fragments were surgically removed but she

was left with two permanent scars.

Taylor’s Shooting of David Carrell

 David Carrell lived on the southeast

side of South Bend in Dawg Life territory

and testified that he had never been a

member of any gang. Carrell had several

physical altercations with various gang

members due to his refusal to join and

was often flashed the O.B.K. sign.

Carrell was conversing with Taylor’s

cousin when Taylor interrupted and began

arguing with Carrell. Taylor repeatedly

referred to Dawg Life and told Carrell,

"[T]his is Dawg Life," and "If you ain’t

down with the life, you ain’t shit."

Carrell responded, "Well, whatever, I
don’t care what you is." Taylor’s final

comment was, "I strike when I’m

provoked." However, Taylor’s cousin

testified at trial that he and Taylor

were having a conversation when Carrell

interrupted them and threw a rival gang

sign at them. 

 Less than two weeks later, when Carrell

was returning from the late shift at

work, he encountered Taylor after

midnight outside of Carrell’s home. When

Carrell saw Taylor point a gun at him, he

ran. Taylor shot and wounded Carrell as

he fled. Taylor’s cousin testified at

trial that he saw Taylor sleeping at his

(the cousin’s) house on the night of the

shooting. However, the cousin had

previously told police on the night of

the shooting that he had not seen Taylor

that night. Both the officer called to

the scene and Carrell thought he was

fatally wounded. Carrell was transported

to the hospital by paramedics. Carrell

had surgery and had to wear a colostomy

bag for six months. Carrell has since had

further corrective surgery. 

Wafford’s Shooting at David Carrell

 Carrell, after having been shot by

Taylor in July 1998, was again the

subject of another Dawg Life shooting a

month later on August 28, 1998. Witnesses

identified the house at 1414 South

Fellows as a Dawg Life crack house.

Carrell lived at his mother’s home and

spent quite a bit of time at his

grandmother’s house, which were only two

houses apart and located near the

intersection of Fellows and Haney, a few

houses away from 1414 South Fellows.

 On the day in question, Carrell’s

younger brother overheard a conversation

with Wafford and another gang member that

Carrell’s mother was "snitching." One of

the gang members then stated, "You know

what we got to do." Carrell’s brother

found Carrell at his grandmother’s house

and reported the conversation about their

mother. Carrell took a handgun and, with

his brother and cousin, went to his

mother’s home. She was standing on the

porch talking to a police officer. As he

approached his mother’s house, Carrell

heard several shots and saw what he

believed to be gunfire coming from 1414

South Fellows. Numerous spent casings and

several live rounds were later recovered
in and around 1414 South Fellows.

 When Carrell ducked for cover, he fell

and injured himself. After the shots

stopped, Carrell pulled out his gun and

ran towards his mother’s house. Although

the police officer on the porch had his

gun drawn at Carrell, the officer

testified that Carrell was visible to him

at all times and he never saw Carrell

fire a shot. The officer believed the

shots had come from 1414 South Fellows,

which he knew was a suspected Dawg Life

crack house. The officer, seeing Carrell

with a gun and blood on him, yelled at

him to drop his weapon. Carrell threw the

gun down and collapsed. He was

transported to the hospital.

 Later that same day, a Dawg Life member

told police that he was with Wafford, his

cousin, that day and that Wafford was the

shooter. Wafford was known to the police

as he had recently stopped a patrol

officer, introduced himself, told the

officer that he knew who the officer was

and asked him to "lighten up on everybody

in the neighborhood." Wafford also told

the officer he was an O.G., with Little

Locs working for him, and asked the

officer to lighten up on the Little Locs.

 Wafford’s cousin, who accepted a plea

bargain, provided police with additional

information, including the location of

what he claimed was the weapon used in

the shooting. The police obtained a

search warrant and retrieved a Chinesemanufactured Norinco SKS assault rifle.

No usable prints were recovered from the

rifle. Because the ammunition casings

were steel, which generally do not leave

ejector marks when discharged, the police

did not test to match the casings to the

rifle as there was only a 10 percent

probability of producing any valid

results.

Dawg Life Crack House at 303 LaPorte

Street 

 On January 31, 1996, the South Bend

police served a search warrant at 303

LaPorte Street. During the two weeks

prior to the search, officers spent

fifteen to twenty hours of surveillance

on the house, watching people enter and

leave after brief visits. During this

time period, police observed Jarrode

Phillips standing outside of the house

throughout the week of the raid.
Phillips, a convicted felon, was known to

police as a Dawg Life member. On January

25 and 30, undercover police officers

made controlled buys of crack cocaine

from the house. 

 Upon entering the house on January 31 at

6:20 a.m., police found Wafford,

Phillips, four other gang members, and a

woman inside. Phillips was sitting next

to another Dawg Life member on a sofa.

Underneath the sofa cushion between the

two men, police found a .40 caliber

Taurus semi-automatic handgun

manufactured in Brazil. Both men had

immediate access to the weapon. In

addition, approximately fourteen white

rocks (later tested and found to be crack

cocaine), weighing over 33.61 grams, were

found on the floor behind the sofa where

Phillips was sitting. The police also

discovered over $5,000 in cash, baggies,

electronic scales, a cellular phone, a

pager on Phillips, and Dawg Life written

material. Along with ammunition, other

weapons found included an assault rifle,

a loaded Smith & Wesson revolver

manufactured in Massachusetts, a Lorcin

semi-automatic handgun manufactured in

California, two shotguns, and a Mossberg

sawed-off shotgun manufactured in

Connecticut. Each of the seized weapons

was found to have previously traveled in

interstate commerce. The gang members

arrested at the house sang Dawg Life rap

songs while the police conducted the

search. Phillips also stated to the

police, "Dawg Life 4 Life."

Dawg Life Crack House at 1115 East

Indiana Street 

 On April 30, 1998, South Bend police

officers raided a crack house at 1115

East Indiana Street. The house was

identified at trial by a Dawg Life member

as a Dawg Life crack house. Police had

made controlled purchases of crack

cocaine at the house on April 23 and 29.

Prior to the raid, police had observed

Lamar Taylor standing in front of the

house and repeatedly walking up to cars,

having a brief conversation, then

returning to the house as the cars drove

off. 

 One gang member testified that Phillips

lived at 1115 East Indiana; he had his

own room there, slept there, had his

girlfriend visit him there, and kept his
clothes at the house. Both Phillips and

Taylor were present when crack sales took

place in the house. Phillips and Taylor

were inside when the police arrived.

Officers found weapons, ammunition,

narcotics, scales, baggies, and 22.63

grams of crack cocaine, along with Dawg

Life writings. After his arrest, police

observed that Phillips had a "Dawg or

Die" tattoo.

 A police informant who had been at the

house daily for approximately one month

prior to the raid testified that only

members of the Dawg Life gang were

permitted to sell from the house. If an

outsider attempted to sell at or near the

house, gang members would beat them up

and rob the outsider of his crack and his

money.

II. ANALYSIS

A. Severance

 Phillips was the only defendant not

charged with committing a violent crime

in aid of racketeering. He argues that a

joint trial with his three co-defendants,

Frank Stork, Armond Stork (Frank’s

brother), and Lamar Taylor, who were

charged with crimes of violence in aid of

racketeering involving the use of a

dangerous weapon, prejudiced the jury

against him and denied him a fair and

impartial trial. His pretrial motion to

sever and another motion made after the

government began to present its case were

both denied. However, after evidence

against his co-defendants had been

presented but immediately prior to the

prosecution’s case-in-chief against

Phillips, the governmentwithdrew its

objection to severance but notified

Phillips that if the trials were severed,

"we may seek additional charges against

Mr. Phillips." Phillips’ counsel

requested additional time to determine

whether or not to renew the request as

she understood that failure to request

severance at that point could mean waiver

to any claims of error. Phillips decided

to remain as a co-defendant. Phillips now

argues that the district court abused its

discretion in failing to sever under

Fed.R.Crim.P. 8(b) or 14.

 "A motion for severance is typically

waived if it is not renewed at the close

of evidence, primarily because it is then

that any prejudice which may have
resulted from the joint trial would be

ascertainable." United States v. Caudill,

915 F.2d 294, 298 (7th Cir. 1990)

(internal quotations and citation

omitted). We noted that, for whatever

reason the defendant failed to renew his

motion to sever, "[w]e cannot countenance

a system in which a defendant first tries

to see whether he can get an acquittal in

a joint trial, and then when he is

convicted renews his motion to sever so

that he can have another crack at a

jury." United States v. Taglia, 922 F.2d

413, 417 (7th Cir. 1991). 

 Phillips asserts in his brief that he

did not renew his motion for severance

because "he should not have been put in

that position in the first place," and

that "renewing at the end of the

government’s case would have been

futile." However, he fails to

substantiate how his renewal would have

been futile, particularly given the fact

that earlier the district court had

specifically inquired if Phillips wished

to renew his motion. 

 Even if Phillips had not waived the

issue, his assertion that he was entitled

to a separate trial is without merit. In

asserting misjoinder under Rule 8(b),/2

there is a presumption that participants

in a conspiracy or other criminal schemes

should be tried together, "not only to

economize on judicial and prosecutorial

resources but also to give the jury a

fuller picture of the scheme." Taglia,

922 F.2d at 416-17 (citation omitted).

Phillips had admitted he was a member of

Dawg Life, and evidence further showed

that all of his co-defendants were or had

been members of Dawg Life. There was also

evidence that all of the defendants were

involved in either the distribution of or

dealing in illegal drugs. Phillips had

been arrested along with Taylor at one of

the crack houses. There was no error

under Rule 8(b).

 On a motion for severance under Rule

14,/3 we give great deference to the

district court, which is best able to

assess the benefits and hazards of a

joint trial. Caudill, 915 F. 2d at 298

(citation omitted). A district court’s

denial of severance will not be disturbed

absent an abuse of discretion. United

States v. Marshall, 75 F.3d 1097, 1105

(7th Cir. 1996). A defendant must
establish that he suffered "actual

prejudice" resulting from the denial of

severance. United States v. Pulido, 69

F.3d 192, 207 (7th Cir. 1995) (listing

cases). Under the "actual prejudice"

standard, a defendant must demonstrate

that absent the severance, he was unable

to obtain a fair trial. United States v.

Magana, 118 F.3d 1173, 1186 (7th Cir.

1997) (citation omitted). 

 The two Storks and Taylor were charged

with a violent crime in aid of

racketeering because the government had

evidence of those three allegedly having

been involved in shootings. There was

evidence that all four defendants were

involved in an enterprise which dealt in

illegal drugs. The district court

directed the prosecuting attorneys not to

ask any questions of witnesses testifying

against the Storks and Taylor that might

elicit testimony implicating Phillips and

scrupulously reiterated a limiting

instruction/4 to remind the jury the

testimony could not be used in

considering Phillips’ charges. See

Marshall, 75 F.3d at 1105 (citing United

States v. Stillo, 57 F.3d 553, 557 (7th

Cir. 1995) (stating that a criminal

defendant "must rebut the dual

presumptions that a jury will (1) capably

sort through the evidence and (2) follow

limiting instructions from the court to

consider each defendant separately.")).

Furthermore, in instructing the jury on

Phillips’ charges, the district court

again gave a limiting instruction:

Even though the defendants are being

tried together, you must give each of

them separate consideration. In doing

this, you must analyze what the evidence

shows about each defendant, leaving out

of consideration any evidence that was

admitted solely against some other

defendant or defendants. Each defendant

is entitled to have his case decided on

the evidence and the law that applies to

that defendant.

See Magana, 118 F.3d at 1188. Under

circumstances such as these, the Supreme

Court noted that our trial system "relies

upon the ability of a jury to follow

instructions." Opper v. United States,

348 U.S. 84, 95 (1954).

 We believe the jury carefully considered

the evidence with respect to the
individual counts, finding certain

defendants not guilty on particular

counts but guilty on other counts and

acquitting Armond Stork. See Magana, 118

F.3d at 1189. Phillips has not shown any

actual prejudice. We agree with the

district court’s ruling and find there

was no abuse of discretion in denying the

motion for severance.

 Phillips also argues that if he has

waived the severance issue, he is now

entitled to plain error review under

Fed.R. Crim.P. 52(b), which provides,

"Plain errors or defects affecting

substantial rights may be noticed

although they were not brought to the

attention of the court." He maintains,

"If he had not been on trial with these

other gang members . . . he probably

would have won his freedom."

 Rule 52(b) gives the courts of appeals

limited authority to correct errors that

a party did not bring to the attention of

the district court. United States v.

Olano, 507 U.S. 725, 730 (1993). In

Olano, the Supreme Court clarified the

standard for Rule 52(b) "plain error"

review by courts of appeal. The Court

distinguished between "forfeited" errors

that simply were not timely raised in

district court and "waived" errors that

were intentionally abandoned or

relinquished. Id. at 733 ("Whereas

forfeiture is the failure to make the

timely assertion of a right, waiver is

the ’intentional relinquishment or

abandonment of a known right.’") (quoting

Johnson v. Zerbst, 304 U.S. 458, 464

(1938)). 

 The Court noted that there must be

"error" that is "plain" and that

"affect[s] substantial rights." Olano,

507 U.S. at 732. However, the Court

stated, "Deviation from a legal rule is

’error’ unless the rule has been waived."

Id. at 733. Where the legal rule is

waivable, a defendant who enters a valid

waiver to that right has no claim of

"error." Id.; United States v. Penny, 60

F.3d 1257, 1261 (7th Cir. 1995) ("When a

right is waived, it is not reviewable,

even for plain error."); see United

States v. Griffin, 84 F.3d 912, 924 (7th

Cir. 1996) ("intentional relinquishment

or abandonment of a known right precludes

[appellate review]."). The Supreme Court

has held the right to trial is waivable.
See Olano, 507 U.S. at 733. We have also

held that a defendant may waive the right

to counsel free from conflict of

interest. See Gomez v. Ahitow, 29 F.3d

1128, 1133 (7th Cir. 1994). As the Court

noted in Olano, consideration of whether

a right is waivable, whether the

defendant participated in the waiver, and

whether the defendant’s choice is

informed or voluntary, is taken into

account. 507 U.S. at 733. In this case,

after a recess to confer with his lawyer,

Phillips’ attorney stated that "he’s had

sufficient time and discussion to make

the decision," and Phillips himself

agreed that he chose to remain in the

case rather than seek severance. His

statement constituted a personal,

informed, and voluntary waiver.

Therefore, the "error" was

"extinguished." See id. Phillips’ waiver

precludes him from raising the issue on

appeal. See Griffin, 84 F.3d at 924

(concluding defendant’s waiver

extinguished his error); United States v.

Lakich, 23 F.3d 1203, 1207 (7th Cir.

1994) ("[I]f there has been a valid

waiver, there is no ’error’ for us to

correct."). Phillips is not entitled to

raise on appeal the very matter that he

told the district court he did not want

to raise. See United States v. Davis, 127

F.3d 335, 339 (7th Cir. 1997). 

B. Jury Selection

 Phillips and Taylor objected to the jury

array on the ground that none of the

approximately forty-eight prospective

jurors were African American or Hispanic.

The Jury Selection and Service Act of

1968, 28 U.S.C. sec.sec. 1861-78 (1982)

("the Act"), provides, "No citizen shall

be excluded from service as a grand or

petit juror in the district courts of the

United States on account of race, color,

religion, sex, national origin, or

economic status." 28 U.S.C. sec. 1862. A

statutory challenge must be made by

motion "before the voir dire examination

begins, or within seven days after the

defendant discovered or could have

discovered, by the exercise of diligence,

the grounds therefor, whichever is

earlier." 28 U.S.C. sec. 1867(a). The

motion must also contain "a sworn

statement of facts which, if true, would

constitute a substantial failure to

comply with the provisions of this title

. . . ." 28 U.S.C. sec. 1867(d). 
 Technically, appellants failed to

satisfy both of these procedural

prerequisites for a statutory challenge

to the jury array. The motion was made

orally approximately three-quarters of

the way into voir dire. After having

interviewed thirty-seven members of the

jury panel, with a final group of ten to

be brought in, Stork’s attorney raised

the issue, in which all defense attorneys

joined, stating that there were "some

serious concerns about the composition of

the jury panel." Defendants argue that

because the final ten members of the jury

panel were "saved back" (not having been

brought into the courtroom until the

afternoon session), it was not possible

to make a sec. 1867 motion until seeing

that none of the ten final members were

African American or Hispanic. The

defendants could have queried the

district court about the composition as

soon as they saw no African Americans or

Hispanics in the first group of venire

members; as the statute specifies, the

challenge must be made "before the voir

dire examination begins . . . ." Although

"saving back" a portion of the panel may

be an unusual practice, we cannot say the

defendants were not alerted to the lack

of African Americans or Hispanics with

the first group of thirty-seven venire

persons.

 The second requirement, that of a "sworn

statement," was not satisfied as the

objections consisted only of counsels’

discussion before the judge about the

fact that no blacks or Hispanics appeared

in the jury pool. Counsel then presented

copies of the 1990 U.S. Census Data for

each of the eleven counties which

comprise the South BendDivision of the

Northern District of Indiana, and argued

that the non-white population was 8

percent of the total population for the

entire South Bend Division. However,

counsel specifically challenged the fact

that there were no African Americans or

Hispanics represented. 

 Based on the total population of

782,401, the total black population, as

indicated in the census material, was

42,847, or approximately 5.4 percent of

the total population. There was no

separate identification for Hispanic or

Spanish descent on the census, but an

inclusive category of "Other Race." The
"Other Race" population was 5,566, or .7

percent. Given the fact that we cannot

presume the entire "Other Race" category

is comprised exclusively of Hispanics,

that percentage must be even less.

However, having no way to determine the

breakdown, for the sake of argument, we

will use the entire .7 percent figure,

resulting in 6.1 percent, not 8 percent

as defendants stated. 

 Also included in counsel’s presentation

was a copy of the Amended Jury Selection

Plan (1997) for the Northern District of

Indiana. The Amended Plan states that

names are selected at random from the

general election voter registration

lists, or, in those counties which do not

maintain voter registration lists, from

the lists of actual voters. Prior to the

Jury Selection Act, most federal

districts used the "key man" system,

where persons believed to have extensive

contacts in the community would suggest

names of prospective jurors and the

qualified jury wheel would be made up

from those names. S. Rep. No. 891, at 10

(1967). This system was thought to foster

discrimination. The Act substituted a

random selection method from the district

or division registered voter or actual

voter lists. 28 U.S.C. sec. 1863 (b)(2).

As the committee reports state:

If the voter lists are used and

supplemented where necessary, and if the

procedures outlined in the bill are

otherwise rigorously followed, it is no

departure from the standards of the

legislation that the qualified jury

wheel, the venire or array, or the jury

itself, may not reflect a community cross

section. The act . . . does not require

that at any stage beyond the initial

source list the selection process shall

produce groups that accurately mirror

community makeup. Thus, no challenge lies

on that basis.

Id. at 17; H.R. Rep. No. 1076, at 5

(1968), reprinted in 1968 U.S.C.C.A.N.

1792, 1794; see also United States v.

Koliboski, 732 F.2d 1328, 1331 (7th Cir.

1984) (holding that voter lists are

proper source from which to draw a pool

of jurors). 

 The Amended Plan clearly follows the

process and procedures recommended by the

Act. Defendants’ one-page motion, filed
on March 30, 1999, stated that of the

forty-eight potential jurors, there was

not a single African American or

Hispanic. Although accompanied by two

exhibits (the 1990 Census Data and the

Amended Jury Selection Plan), the motion

did not include a sworn statement which

"if true, would constitute a substantial

failure to comply with the provisions of

[the Jury Selection Act]."/5 In fact,

the Amended Plan only served to show the

district’s compliance with provisions and

procedures of the Act. Defendants’

failure to make a motion in a timely

manner and failure to provide evidence,

other than oral observations as to the

lack of statistical proportionality,

precluded a statutory challenge. 28

U.S.C. sec. 1867(e); see United States v.

Grose, 525 F.2d 1115, 1119 (7th Cir.

1975). The district court did not err in

denying the untimely and substantively

inadequate motion. Having failed to

comply with thestatutory requirements of

sec. 1867(d), the defendants were not

entitled to an evidentiary hearing

challenging the district’s jury selection

process. United States v. Percival, 756

F.2d 600, 615 (7th Cir. 1985).

 Phillips and Taylor also challenged the

jury composition under the Sixth

Amendment, which forbids racial

discrimination in the selection of

jurors. See Taylor v. Louisiana, 419 U.S.

522, 530 (1975). Whether a defendant has

been denied the right to a jury selected

from a fair cross-section of the

community is a mixed question of law and

fact, which we review de novo. United

States v. Raszkiewicz, 169 F.3d 459, 462

(7th Cir. 1999). While the right to a

jury trial guarantees the criminal

defendant a fair trial by a panel of

impartial, "indifferent" jurors, Irwin v.

Dowd, 366 U.S. 717, 722 (1961), there is

no requirement that a venire or jury

mirror the general population. United

States v. Duff, 76 F.3d 122, 124 (7th

Cir. 1996). "Defendants are not entitled

to a jury of any particular composition."

Taylor, 419 U.S. at 538. Therefore, "the

makeup of any given venire is not

significant, provided all rules for

selection have been observed." Duff, 76

F.3d at 125 (citing Holland v. Illinois,

493 U.S. 474, 482-83 (1990)).

 To make a prima facie case that the fair

cross-section requirement has been
violated, a defendant must show that: (1)

the group allegedly excluded is a

distinctive part of the community, (2)

the representation of this group in

venires from which juries are selected is

not fair and reasonable in relation to

the number of such persons in the

community, and (3) this

underrepresentation is due to systematic

exclusion of the group in the jury

selection process. Johnson v. McCaughtry,

92 F.3d 585, 590 (7th Cir. 1996) (citing

Duren v. Missouri, 439 U.S. 357, 364

(1979)). There is no dispute that African

Americans or Hispanics may constitute a

"distinctive part of the community,"

thereby satisfying the first prong. As to

the second prong, defendants argued the

jury pool failed to reflect at least 8

percent of the community (although the

correct percentage, as discussed

previously, was something less than 6.1

percent). In either case, we have noted

that "a discrepancy of less than ten

percent alone is not enough to

demonstrate unfair or unreasonable

representation of blacks on the venire."

United States v. Ashley, 54 F.3d 311, 314

(7th Cir. 1995) (citation omitted).

Therefore, defendants fail to satisfy the

second requirement. 

 Defendants also fail to make a showing

under the third prong that there was a

systematic exclusion of African Americans

and Hispanics. See Swain v. Alabama, 380

U.S. 202, 203-04 (1965). Defendants

presented evidence of the district’s

compliance with the proper methods of

jury selection yet failed to provide a

factual basis for a finding of improper

methods of jury selection. "The mere

observation that a particular group is

underrepresented on a particular panel

does not support a constitutional

challenge." Grose, 525 F.2d at 1119. The

district court did not err in denying

defendants’ constitutional challenge to

the jury selection process.

C. Sufficiency of Evidence

 The defendants challenge the sufficiency

of the evidence as to a number of issues.

A defendant who attacks the legal

sufficiency of the evidence supporting a

conviction "faces a nearly insurmountable

burden." United States v. Hickok, 77 F.3d

992, 1002 (7th Cir. 1996) (internal

quotation and citation omitted). Great
deference is given to the finding of the

jury. Penny, 60 F.3d at 1262. The jury’s

verdict will be overturned "only when the

record contains no evidence, regardless

of how it is weighed, from which the jury

could find guilt beyond a reasonable

doubt." United States v. Rosalez-Cortez,

19 F.3d 1210, 1215 (7th Cir. 1994). 

1. Dawg Life as an Enterprise

 Taylor, Stork, and Wafford challenge the

sufficiency of the evidence to support

their convictions for engaging in an

enterprise of racketeering activity. An

enterprise is defined as "any

partnership, corporation, association, or

other legal entity, and any union or

group of individuals associated in fact

although not a legal entity, which is

engaged in, or the activities of which

affect, interstate or foreign commerce."

18 U.S.C. sec. 1959(b)(2). This

definition of enterprise is the same as

that used in the RICO Act, 18 U.S.C. sec.

1961(4). See United States v. Rogers, 89

F.3d 1326, 1335 (7th Cir. 1996). Under

sec. 1959, the government may prosecute

not only conduct under RICO that

constitutes a pattern of racketeering

activity in connection with an

enterprise, but also for violent crimes

which, in part, permit a defendant to

maintain his position in a RICO

enterprise. Id. Therefore, cases decided

under sec. 1961(4) may also be used to

determine what constitutes an enterprise

under sec. 1959. Id. 

 For a RICO conviction, the government

must prove "both the existence of an

’enterprise’ and the connected ’pattern

of racketeering activity.’" United States

v. Turkette, 452 U.S. 576, 583 (1981). As

the Court clearly explains,

The enterprise is an entity, for present

purposes a group of persons associated

together for a common purpose of engaging

in a course of conduct. The pattern of

racketeering activity is, on the other

hand, a series of criminal acts as

defined by the statute. The former is

proved by evidence of an ongoing

organization, formal or informal, and by

evidence that the various associates

function as a continuing unit. 18 U.S.C.

sec. 1961(1) (1976 ed., Supp. III). The

latter is proved by evidence of the

requisite number of acts of racketeering
committed by the participants in the

enterprise.

Id.

 Defendants argue that although there may

have been sufficient evidence to show

that Dawg Life was "at most a group of

people who get together to commit a

pattern of racketeering activity. . . .

the government was required to present

additional evidence to establish beyond a

reasonable doubt that this group of

people constituted an enterprise."

Defendants rely on United States v.

Korando, which noted that while the

statutory definition of enterprise

includes "enterprises that exist solely

in order to carry out illegal activity,

the enterprise needs to be something more

than just the pattern of racketeering

activity. Otherwise, two statutory

elements--enterprise and pattern--would

be collapsed into one." 29 F.3d 1114,

1117 (7th Cir. 1994) (citations omitted).

 However, we also stated in Korando that

the hallmark of an enterprise is

structure, with the enterprise having "a

structure and goals separate from the

predicate [criminal] acts themselves." 29

F.3d at 1117 (citations omitted). We also

noted that RICO applies not only to

formal enterprises but to informal ones

like criminal gangs. Id. 

 In this case, the jury instructions

defining enterprise and racketeering

activity clearly distinguish the elements

needed for the two separate charges.

An "enterprise," as that term is used in

these instructions, includes any group or

individuals associated in fact although

not a legal entity, which is engaged in,

or the activities of which affect,

interstate or foreign commerce. An

"enterprise" can include a group of

people associated together for a common

purpose of engaging in a course of

conduct. This group may be associated

together for purposes that are both legal

and illegal. In considering whether a

group is an "enterprise," you should

consider whether it has an ongoing

organization or structure, either formal

or informal, and whether the various

members of the group functioned as a

continuing unit. The hallmark of an
enterprise is structure; there must be

some structure that is amenable to

consensual or hierarchical decisionmaking, though there need not be much. A

group may continue to be an "enterprise"

even if it changes membership by gaining

or losing members over time. The

government must prove that the group

described in the indictment was the

"enterprise" charged, but need not prove

each and every allegation in the

indictment about the enterprise or the

manner in which the enterprise operated.

Final Jury Instructions, p. 9. 

"Racketeering activity" includes any act

or threat involving robbery, or dealing

in a controlled substance. The indictment

alleges that the Dawg Life Gang engaged

in acts involving robbery in violation of

Indiana criminal law, and the felonious

manufacture, importation, receiving,

concealing, buying, selling or otherwise

dealing in controlled substances in

violation of federal law. Under Indiana

law, robbery consists of the knowing or

intentional taking of property from

another person or from the presence of

another person by using or threatening

the use of force on any person, or by

putting any person in fear. Federal law

prohibits the knowing manufacturing,

importing, receiving, concealing, buying,

selling, or otherwise dealing in

controlled substances. "Manufacture"

means to produce or prepare; "import"

means that the substance in question was

brought from a point outside the United

States into the United States.

Final Jury Instructions, p. 10.

 Reviewing the evidence in the light most

favorable to the government, it is clear

from the record, including testimony from

admitted Dawg Life gang members, that the

government presented more than sufficient

evidence that the Dawg Life gang was an

enterprise. Dawg Life was a longestablished street gang operating on the

southeast side of South Bend and was

involved in the sale of illegal drugs. It

was an ongoing organization with members

who functioned as a continuing unit.

There was a definite structure with a

distinct ranking of members. There was

also sufficient evidence for the jury to

determine that there was a type of

hierarchical decision-making based on
testimony as to one member being voted

out the gang, one member being appointed

to a higher level, of lower-ranking

members going to higher-ranking members

for drugs, and of higher-ranking members

controlling the pooling of money for

lower-ranking members. The continuity of

an informal enterprise with

differentiated roles amongst the

participants provides the necessary

"structure" to satisfy the statutory

requirements of an enterprise. Korando,

29 F.3d at 1117-18 (citation omitted). 

 Defendants incorrectly argue that the

structure evidence collapsed into the

evidence of racketeering activity. As we

noted in Rogers, the language of Turkette

does not require "the enterprise to have

a purpose separate and apart from the

pattern of racketeering activity." 89

F.3d at 1336 (emphasis in original)

(citing Turkette, 452 U.S. at 583). We

held that the Court in Turkette "was

merely emphasizing that proof of an

enterprise is separate and apart from

proof of a pattern of racketeering

activity. Thus the two elements are

separate and apart, and ’the proof used

to establish these separate elements may

in particular cases coalesce . . . .’’’

Id. (emphasis in original) (citing

Turkette, 452 U.S. at 538). "[I]t would

be nonsensical to require proof that an

enterprise had purposes or goals separate

and apart from the pattern of

racketeering activity." Id. at 1337.

"[T]he fact that a single individual may

engage in a pattern of racketeering

activity without, of course, comprising

an enterprise adequately illustrated the

inherent and logical distinction between

the two elements." Id. 

 The district court properly instructed

the jury on the elements as to enterprise

and racketeering activity; that an

enterprise required elements beyond the

"racketeering activity" acts of dealing

in controlled substances. The evidence

was sufficient to allow the jury to find

that Dawg Life was "an entity separate

and apart from the pattern of activity in

which it engages." See Turkette, 452 U.S.

at 583.

2. Violent Crimes to Maintain or Increase

Position in Enterprise

 Taylor, Stork, and Wafford all challenge
the sufficiency of the evidence as to

their convictions for the commission of a

violent crime in aid of racketeering in

violation of 18 U.S.C. sec. 1959, which,

in part, provides: 

Whoever, as consideration for the receipt

of, or as consideration for a promise or

agreement to pay, anything of pecuniary

value from an enterprise engaged in

racketeering activity, or for the purpose

of gaining entrance to or maintaining or

increasing position in an enterprise

engaged in racketeering activity,

murders, kidnaps, maims, assaults with a

dangerous weapon, commits assault

resulting in serious bodily injury upon,

or threatens to commit a crime of

violence against any individual . . .

shall be punished . . . .

18 U.S.C. sec. 1959(a). 

 The basic instruction given to the jury

for all three defendants required a

finding that (1) the Dawg Life street

gang existed and was an enterprise

engaged in, or the activities of which

affected, interstate or foreign commerce,

(2) that the Dawg Life street gang

engaged in racketeering activity, (3)

that defendant committed a specific

violent crime under Indiana law, and (4)

that defendant committed the violent

crime for the purpose of gaining entrance

to or maintaining or increasing position

in the Dawg Life street gang. The

government is required to prove that the

defendant’s general purpose in committing

the crime of violence was to maintain or

increase his position in the criminal

enterprise. 

 There was testimony that the Dawg Life

gang was an ongoing enterprise involved

in the sale of illegal drugs. The gang

operated on principles of violence and

that violence was a prerequisite for

rewarding and promoting members. There

was also testimony that acts of violence

were a part of the Dawg Life culture and

violence was the expected behavior in

order to maintain one’s status within the

gang.

 a. Stork

 Stork was charged with committing a

battery with a dangerous weapon resulting
in the serious bodily injury of Charlotte

Flemming and aiding and abetting in a

battery. Witnesses provided evidence that

occupants in the car yelled gang "things"

and were throwing up O.B.K. signs prior

to the shooting. Stork admitted to having

fired a handgun in the direction of the

house and conceded that gang slogans were

shouted, although "they probably came

from another car." There was also

testimony that Stork had discussed the

shooting and his problems with firing the

gun at one of the gang meetings.

 Given the general testimony as to the

importance of violence in Dawg Life, and

the specific testimony as to the

shooting, there was sufficient evidence

for the jury to find beyond a reasonable

doubt that the shooting was the type of

behavior encouraged and demanded of

members of Dawg Life in order to maintain

their status within the gang. See

Rosalez-Cortez, 19 F.3d at 1215.

 b. Taylor

 Taylor was charged with committing a

battery with a dangerous weapon resulting

in the serious bodily injury of David

Carrell. The general testimony of gang

violence, along with Carrell’s

identification of Taylor as the shooter,

was sufficient for the jury to find

beyond a reasonable doubt that Taylor’s

violent act was part of his behavior as a

member of Dawg Life, and that behavior

allowed him to, at a minimum, maintain

his status within the gang.

 c. Wafford

 Wafford was charged with committing

attempted battery with a dangerous weapon

for the attempted shooting of David

Carrell. Wafford concedes that he shot at

Carrell and does not deny that he was

involved in Dawg Life’s crack house

operations. However, he argues that

theevidence did not prove that the

purpose of the shooting was to gain

entrance to, maintain, or increase his

position in Dawg Life. One of the gang

members who testified stated that he and

Wafford were the shooters and that the

Carrell shooting was a "spur of the

moment" decision having nothing to do

with Dawg Life. He also testified that he

believed Carrell had shot at Wafford
sometime in the past but was unable to

elaborate.

 There was also testimony from one of the

police officers who regularly patrolled

the southeast side and was familiar with

gang activity. The officer explained that

he had been very aggressive in making

cocaine arrests in the Dawg Life

territory and taking people to jail. This

officer stated he was stopped by Wafford

while on patrol in August of 1998,

several weeks before the shooting. He

said that Wafford introduced himself and

told the officer that Wafford knew who he

(the officer) was. The officer stated

that Wafford told him he (Wafford) was an

O.G., and he wanted the officer to

"lighten up on the Little Locs in the

neighborhood." (As a high-ranking O.G.,

Wafford would not usually sell the drugs

himself, but would supervise the sales

carried out by the lower-ranking members,

normally the Little Locs.)

 There was sufficient evidence for the

jury to find that Wafford believed that

Carrell’s mother was "snitching" to the

police about the crack house, which,

testimony showed, was controlled by Dawg

Life members, and from which place

Wafford supervised crack sales. The jury

could reasonably have found that Wafford,

as an O.G., was acting to protect and

further the Dawg Life enterprise,

carrying out his responsibilities as

required by his position within the gang.

 Basically, all three defendants are

asking this court to reweigh the

evidence, which we may not do. United

States v. Mojica, 984 F.2d 1426, 1435

(7th Cir. 1993) ("It is not the task of

this appellate court to reconsider the

evidence or assess the credibility of the

witnesses."). As the defendants’

sufficiency of the evidence arguments

rely on the weight the jury gave to the

witnesses’ testimony, we find there was

sufficient evidence to convict each one

of committing a violent crime in order to

maintain his position within the criminal

enterprise. 

 3. Maintaining a Crack House

 Phillips and Taylor were both convicted

of aiding in the maintenance of a crack

house in violation of 21 U.S.C. sec.

856/6 and 18 U.S.C. sec. 2./7 
 There was testimony that Dawg Life

controlled at least six known crack

houses, including the ones on LaPorte

Street and East Indiana Street. Neither

defendant disputes the testimony that the

houses on LaPorte and East Indiana were

crack houses and that illegal drugs were

being sold. Phillips argues that he was

an innocent bystander who just happened

to be at both houses. Taylor argues, at

most, he could have been a lookout.

Defendants’ arguments are without merit.

Again, they ask us to reweigh the

evidence, which we may not do. See

Mojica, 984 F.2d at 1435. 

 Given the identification that Dawg Life

was involved in the sale of illegal

drugs, that these were Dawg Life crack

houses, that commercial sales had taken

place in these houses, see United States

v. Church, 970 F.2d 401, 406 (7th Cir.

1992), that Phillips and Taylor were both

higher-ranking G. Locs, and that G. Locs

were known to supervise the sale of drugs

by the lower-ranking Little Locs, there

was sufficient evidence for the jury to

find guilt beyond a reasonable doubt. 

4. Phillips’ Possession of a Firearm

 Phillips was convicted as a felon in

possession of a firearm in violation of

18 U.S.C. sec. 922(g)/8 and now argues

there was insufficient evidence to show

his possession of any of the firearms

seized at the raid on 303 LaPorte Street

when he was arrested. To obtain a

conviction for felon-in-possession under

sec. 922(g)(1), the government must

establish beyond a reasonable doubt that

(1) the defendant had a previous felony

conviction, (2) the defendant possessed a

firearm, and (3) the firearm had traveled

in or affected interstate commerce.

United States v. Walls, 225 F.3d 858, 864

(7th Cir. 2000) (citations omitted). The

only element at issue is Phillips’

"possession" of a firearm. Possession may

be demonstrated by either actual or

constructive possession. Id. (citation

omitted). Actual possession may be shown

by direct physical control of the

firearm. Id. Constructive possession

occurs when the defendant "knowingly has

the power and the intention at a given

time to exercise dominion and control

over an object, either directly or

through others." United States v.

Garrett, 903 F.2d 1105, 1110 (7th Cir.
1990) (emphasis and citations omitted). 

 In fact, the government presented

sufficient evidence to show both actual

and constructive possession of firearms

located at 303 LaPorte. Phillips had

direct control of the Taurus handgun

found under the cushion next to him on

the sofa. He had constructive possession

of the other firearms in the sense that

he had been observed at the house during

the week of the raid and he was a higherranking member of Dawg Life at a Dawg

Life crack house. Due to Phillips’

position in the gang, the jury could

reasonably infer that he was in control

at the crack house. At a minimum, the

government need only show some nexus

between the defendant and the guns. See

United States v. Hunte, 196 F.3d 687, 692

(7th Cir. 1999) ("a defendant’s access to

a firearm, even when others also had

access, was sufficient to allow a jury to

find constructive possession." (citation

omitted)).

 The district court’s jury instruction as

to "possession" was proper, reading in

part, "Possession of an object is the

ability to control it. Possession may

exist even when a person is not in

physical contact with the object, but

knowingly has the power and intention to

exercise direction or control over it,

either directly or through others." There

was sufficient evidence for the jury to

convict Phillips on this charge.

D. Sentencing Challenge 

 In the final issue, Stork argues that

the district court misinterpreted the

United States Sentencing Guidelines

("U.S.S.G." or the "Guidelines") in

applying a six-level enhancement under

sec. 2A2.2(b)(3) for "permanent or lifethreatening" injuries suffered by

Charlotte Flemming. Because Stork is

challenging the legal interpretation of

the Guidelines, our review is de novo.

United States v. White, 222 F.3d 363, 372

(7th Cir. 2000) (citation omitted). The

district court’s findings of fact are

reviewed for clear error. United States

v. Griffin, 150 F.3d 778, 787 (7th Cir.

1998) (citation omitted).

 Section 2A2.2 for aggravated assault

begins with a base offense level of 15. A

two-level enhancement is added if the
victim has sustained bodily injury, four

levels for serious bodily injury, and six

levels for "permanent or life-threatening

bodily injury." U.S.S.G. sec.

2A2.2(b)(3). Section 1B1.1, cmt. n.1(j),

of the Guidelines defines "serious bodily

injury" in pertinent part as an "injury

involving extreme physical pain or the

protracted impairment of a function of a

bodily member, organ, or mental faculty;

or requiring medical intervention such as

surgery, hospitalization, or physical

rehabilitation." Section 1B1.1, cmt.

n.1(h), defines "permanent or lifethreatening bodily injury" as an "injury

involving a substantial risk of death;

loss or substantial impairment of the

function of a bodily member, organ, or

mental faculty that is likely to be

permanent; or an obvious disfigurement

that is likely to be permanent." 

 Stork argues that the term "permanent

injury" when linked with "lifethreatening" means that the permanent

injury "must be of the same magnitude or

seriousness as a life-threatening

injury," and "the disfigurement must rise

to the same level as a substantial

impairment of bodily function." He

maintains that a four-level enhancement

for "serious bodily injury" would have

been appropriate. The government argues

that the scars are a permanent

disfigurement. The district court noted

that other cases based on injuries

"permanent or life-threatening" have been

more serious injuries than Charlotte

Flemming’s facial scars, see United

States v. Jacobs, 167 F.3d 792, 797 (3rd

Cir. 1999) (finding that the injuries

were both permanent and lifethreatening); United States v. Price, 149

F.3d 352, 353-54 (5th Cir. 1998) (finding

that there was 10-15% permanent loss of

hand function), and that cases based on

"serious bodily injury" have involved

injuries that might be considered more

serious than facial scars, see United

States v. Rodgers, 122 F.3d 1129, 1133

(8th Cir. 1997) (finding that posttraumatic stress disorder causing loss of

mental faculties and requiring

hospitalization was a "serious bodily

injury"). However, we agree with the

district court’s assessment that the

issue is not whether other victims have

suffered worse injuries but whether

Charlotte Flemming suffered "permanent"

injuries within the meaning of the
Guidelines. As the Fifth Circuit noted in

United States v. Price, "The plain

language of application note 1(h)

encompasses injuries that may not be

terribly severe but are permanent, hence

the disjunctive: ’permanent or lifethreatening injuries.’" 149 F.3d at 354.

 The record provides sufficient evidence

that Charlotte Flemming suffered

permanent and disfiguring scars on her

face, which are obvious to anyone who

sees her. There was no clear error in the

district court’s conclusion that

Charlotte suffered a "permanent or lifethreatening bodily injury" with an

enhancement under sec. 2A2.2(b)(3)(C).

III. CONCLUSION

 For the above-stated reasons, the

judgment of the district court is

affirmed in all respects.

AFFIRM.

FOOTNOTES

/1 The L is written upside-down to denote

disrespect to the rival Lakeside gang.

/2 Rule 8(b) provides:

(b) Joinder of Defendants. Two or more

defendants may be charged in the same

indictment or information if they are

alleged to have participated in the same

act or transaction or in the same series

of acts or transactions constituting an

offense or offenses. Such defendants may

be charged in one or more counts together

or separately and all of the defendants

need not be charged in each count.

/3 Rule 14, Relief from Prejudicial

Joinder, provides:

If it appears that a defendant or the

government is prejudiced by a joinder of

offenses or of defendants in an indictment or information or by such joinder

for trial together, the court may order

an election or separate trials of counts,

grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order

the attorney for the government to deliver to the court for inspection in camera
any statements or confessions made by the

defendants which the government intends

to introduce in evidence at trial.

/4 Prior to any testimony not relating

to Phillips’ charges, the district court

informed the jury that "the evidence that

you hear [at this time] may not be considered in deciding whether the government has proven its case with respect to

Mr. Phillips."

/5 We can only guess that defense

counsel thought their discussion in court

was the equivalent of a "sworn statement." While it is true that the discussion was recorded and transcribed by the

court reporter, no official copy of this

discussion nor any affidavit was ever

submitted at any time as the mandatory

sworn statement required by 28 U.S.C.

sec. 1867(d).

/6 21 U.S.C. sec. 856, Establishment

of manufacturing operations, provides in

part:

(a) Except as authorized by this subchapter, it shall be unlawful to--

 (1) knowingly open or maintain any

place for the purpose of manufacturing,

distributing, or using any controlled

substance;

 (2) manage or control any building,

room, or enclosure, either as an owner,

lessee, agent, employee, or mortgagee,

and knowingly and intentionally rent,

lease, or make available for use, with or

without compensation, the building, room,

or enclosure for the purpose of unlawfully manufacturing, storing, distributing,

or using a controlled substance.

/7 18 U.S.C. sec. 2, Principals, provides in part, "Whoever commits an offense against the United States or aids,

abets, counsels, commands, induces or

procures its commission, is punishable as

a principal." Id. sec. 2(a).

/8 18 U.S.C. sec. 922(g) provides in

part:

(g) It shall be unlawful for any person--

 (1) who has been convicted in any

court of, a crime punishable by imprisonment for a term exceeding one year;
. . .

to ship or transport in interstate or

foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.