PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DARRYN FRIERSON, a/k/a DeDa, Defendant-Appellant. No. 11-3332

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

(D.C. No. 6:07-CR-10142-JTM-13)

Submitted on the briefs: * John Jenab, Jenab & McCauley LLP, Ol athe, Kansas, for Defendant-Appellant. Barry R. Grissom, United Stat es Attorney, James A. Brow n, Assistant United States Attorney, Topeka, Kansas , for Plaintiff-Appellee.

Before HARTZ , ANDERSON , and EBEL , Circuit Judges.

HARTZ , Circuit Judge.

* After examining the briefs and appellate record, this pane l has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### October 29, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Defendant Darryn Frierson and 19 c odefendants were charged in a multiple-count indictment with alleged cr iminal activities as me mbers of the Crips street gang. Following a lengthy jury trial of Defendant and five codefendants, he was convicted of eight offens es: (1) conspiracy to pa rticipate in a Racketeering Influenced and Corrupt Organi zation Act (RICO) enterprise, see 18 U.S.C. § 1962(d) (Count 2); (2) distribution of mo re than five grams of cocaine, see 21 U.S.C. § 841(a)(1) (Count 7); (3) distribution of more than five grams of crack cocaine,

see 21 U.S.C. § 841(a) (Count 8); (4) possession with intent to distribute more than five grams of crack cocaine, see 21 U.S.C. § 841(a) (Cou nt 9); (5) maintaining a place of drug distribution, see 21 U.S.C. § 856(a)(1) (Cou nt 10); (6) conspiracy to distribute and possess with inte nt to distribute crack cocaine, see 21 U.S.C. § 846 (Count 11); (7) possession with intent to di stribute more than five grams of crack cocaine, see 21 U.S.C. § 841(a)(1) (Count 12); and (8 ) conspiracy to distribute more than 50 grams of crack cocaine, see 21 U.S.C. § 846(a) (Count 28). The jury deadlocked on Count 1, which char ged Defendant with racketeering, see 18 U.S.C. § 1962(c), and acquitted him on Count 29, wh ich charged him with conspiracy to distribute marijuana, see 21 U.S.C. § 846. The district court denied Defendant’s motion for judgment of acquittal or in the alternative for a new trial, and it sentenced him to concurrent terms of 120 months’ imprisonment on each count. Defendant raises the following contentions on appeal: (1) Counts 11 a nd 28 are multiplicitous; (2) there was- 3 - insufficient evidence to support his convict ion for conspiracy to commit a RICO violation; (3) the district cour t erred by instructing the jury that it did not need to find that an “enterprise” actually existed in order to convict him of a conspiracy to commit a RICO violation; and (4) juror bias de nied him the right to a fair trial. The last three contentions are id entical to ones rejected by this court on appeals by his codefendants. See United States v. Cornelius , --- F.3d ---, Nos. 10-3125, 10-3142, 2012 WL 4075877, at *2-4, 7-8, 11-13 (10th Cir. Sept. 18, 2012) and United States v. Smith , 454 F. App’x 686, 696-97 (10th Cir. 2012) We therefore address only his claim of multiplicity. We hold that it is meritorious. Defendant concedes that he did not raise the issue of multiplic ity in the district court. Thus, “we review only for plain error.” United States v. McCullough , 457 F.3d 1150, 1162 (10th Cir. 2006) (internal quotation ma rks omitted). “Under the plain error standard, [a defenda nt] must show clear or obvi ous error that affected his substantial rights and seriously affected the integrity of the judicial proceedings.” United States v. Battle , 289 F.3d 661, 669 ( 10th Cir. 2002). “Multiplicity refers to mult iple counts of an indictment which cover the same criminal behavior.” United States v. Barrett , 496 F.3d 1079, 1095 (10th Cir. 2007) (internal quotation marks omitted). “[M]ultip licity is not fatal to an indictment.” Id

. (internal quotation marks omitted). I ndeed, “[t]he government may submit multiplicitous charges to the jury.” United States v. Nickl , 427 F.3d 1286, 1301 (10th Cir. 2005). But “multip licitous sentences violate th e Double Jeopardy Clause,”- 4 - McCullough , 457 F.3d at 1162 (internal quotation ma rks omitted), so “if a defendant is convicted of both charges, the district court must vacat e one of the convictions,” Nickl , 427 F.3d at 1301. In this case Defendant was indicted on two counts charging a conspiracy to distribute crack cocaine. Count 11 charged: Beginning on a date unknown to the Gr and Jury, and continuing through March 30, 2007, in the District of Kansas, [Defendant] and Cortez Grayson . . . did unlawfully, knowingl y combine, conspire, confederate and agree together with others, bo th known and unknown to the Grand Jury, to distribute and possess with intent to distribute a mixture and substance containing a de tectable amount of cocaine base, a controlled substance, in violation of Title 21, United States Code, Section 841(a)(1)[,] and [thus a] violation of Title 21, United States Code, Section 846. R. Vol. 1 at 72-73. Count 28 incorporat ed several earlier paragraphs of the indictment and then charged: Beginning on a date unknown to the Gr and Jury, and continuing through the 27th day of June, 2007, in the Di strict of Kansas, and elsewhere, [Defendant, Grayson, a nd 12 other Crips members] . . . did knowingly, willfully and unlawfully combine, conspire, conf ederate and agree with . . . other persons whose identities are both known and unknown to the Grand Jury, to distribute fifty (50) grams and more of a mixture and substance containing a de tectable amount of cocaine base, a controlled substance[,] [i]n violation of Titl e 21, United States Code, Section 846 and 841(a)(1). Id . at 82. Defendant contends that “[t]he only substantiv e difference between the two counts is that Count 28 specifies that the overall scope of the conspiracy was ’50 grams and more.’” Aplt. Opening Br. at 15.- 5 - To establish that the two conspiraci es charged in Counts 11 and 28 were distinct – that is, that the conspiracy c onvictions were not multip licitous – the jury had to find the “existe[nc e] [of] more than one agreement to perform some illegal act
or acts.” United States v. Fleming , 19 F.3d 1325, 1330 (10th Cir. 1994) (internal quotation marks omitted). To do so, the “juror s [had to be] adequate ly instructed that they could not find [Defendant] guilty of mo re than one count of conspiracy unless they were convinced beyond a reasonable doubt that he entered into two separate agreements to violate the law.” United States v. Swingler , 758 F.2d 477, 492 (10th Cir. 1985). In this case the jury wa s not so instructed, and acco rdingly it did not find that Defendant entered into two separate agre ements to distribute crack cocaine. The instruction to the jurors that they “separately cons ider each defendant and each Count,” R. Vol. 1 at 243, did not alert th em that they needed to find that the two conspiracies involved dis tinct agreements. And there was nothing in the government’s closing argumen t to suggest that the cons piracy alleged in Count 11 was anything other than part of the larger conspiracy alleged in Count 28, or that Defendant had two separate ag reements to distribute ille gal drugs. Thus, the two convictions on Counts 11 and 28 are plainly multiplicitous. The government concedes in its brief that if the counts are multiplicitous, Defenda nt is entitled to relief under plain-error review.- 6 - We REMAND with instructions to the district court to vacate Defendant’s conviction and sentence on either Count 11 or Count 28. We AFFIRM the convictions and sentences on the remaining counts.