NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

JASON DAVIS, AKA G-Thang, AKA Lil 

G. Red,

 Defendant - Appellant.

No. 13-50368

D.C. No. 2:10-cr-00923-SJO-11

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted July 5, 2016

Submission Vacated November 4, 2016

Resubmitted August 21, 2019

Pasadena, California

 * This disposition is not appropriate for publication and is not precedent 

except as provided by 9th Cir. R. 36-3.

FILED

AUG 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Before: MURGUIA, and WATFORD, Circuit Judges, and BOLTON,** District 

Judge.

Appellant Jason Davis appeals his convictions for racketeering conspiracy in 

violation of 18 U.S.C. § 1962(d) and drug trafficking conspiracy in violation of 21 

U.S.C. § 846. He challenges (1) the sufficiency of the evidence used to convict him

of RICO and drug trafficking conspiracies, (2) the calculation of his sentence, and 

(3) the sufficiency of the evidence used to convict him of possession of a firearm in 

furtherance of the RICO conspiracy in violation of 18 U.S.C. § 924(c)(1)(A). This 

Court has jurisdiction over this direct appeal under 28 U.S.C. § 1291.We affirm his 

conspiracy convictions and vacate his § 924(c) conviction. 

1. Davis’s sufficiency of the evidence claim fails for both the RICO and 

drug trafficking conspiracies. The Government provided sufficient evidence that the 

Pueblo Bishops street gang was a criminal enterprise by demonstrating that they had 

existed since the 1970s and used gang violence to protect their territory, increase

their prominence, and protect their drug selling monopoly. See United States v. 

Turkette, 452 U.S. 576, 583 (1981) (requiring government to prove (1) an ongoing 

organization with framework for carrying out objectives and (2) various members or 

** The Honorable Susan R. Bolton, United States District Judge for the District 

of Arizona, sitting by designation.
3

associates functioned as unit to accomplish common purpose). The Government’s 

evidence showed that Davis would lead young gangsters, encourage young men to 

join the gang, and confront rival gang members. See United States v. Grasso, 724 

F.3d 1077, 1086 (9th Cir. 2013) (requiring only “slight connection” between 

conspiracy and defendant’s conduct). The Government’s evidence also showed that 

Davis participated in the drug trafficking conspiracy by selling drugs to other gang 

members, enforcing the gang’s territorial exclusions, and participating in violence 

against unauthorized drug sellers. See United States v. Moe, 781 F.3d 1120, 1124–

25 (9th Cir. 2015) (stating government must show more than buyer-seller 

relationship for drug trafficking conspiracy conviction). 

2. Davis also argues that his sentence was not properly calculated because 

he received a supervisory role adjustment under United States Sentencing Guideline 

§ 3B1.1(b). The Court reviews a district court’s interpretation of the Sentencing 

Guidelines de novo. United States v. Garcia, 497 F.3d 964, 969 (9th Cir. 2007). The 

district court’s application of the Sentencing Guidelines is reviewed for abuse of

discretion and its findings of fact are reviewed for clear error. United States v. Staten, 

466 F.3d 708, 713 (9th Cir. 2006). The Guidelines provide for a three-level increase

where “the defendant was a manager or supervisor (but not an organizer or leader) 

and the criminal activity involved five or more participants or was otherwise 

extensive.” USSG § 3B1.1(b). The Government’s evidence showed that Davis 
4

influenced young gangsters, enforced gang rules, and intimidated boys to join. In 

fact, he was considered “a leader of the YGs.” See United States v. Camper, 66 F.3d 

229, 231 (9th Cir. 1995) (finding defendant “need only exercise authority over one 

and not all of the other participants in order to merit the adjustment”); United States 

v. Hernandez, 952 F.2d 1110, 1119 (9th Cir. 1991) (permitting upward adjustment 

when defendant recruited others into criminal activity and exerted some control over 

them).

Davis also contends that the jury erred in attributing the drug sales of other 

gang members to him. We disagree. The Government’s evidence showed that Davis 

was involved in the drug trafficking conspiracy and that gang members had sold over 

52,000 grams of cocaine, and agents purchased 200 grams of crack and 800 grams 

of cocaine. The law requires nothing more. See United States v. Reed, 575 F.3d 900, 

925 (9th Cir. 2009) (“For purposes of sentencing, a conspirator is to be judged on 

the quantity of drugs that he reasonably foresaw or which fell within the scope of his 

particular agreement with the conspirator.”). Which in turn forecloses Davis’s final 

request that his sentence on Counts 1 and 14 be reduced. We therefore conclude that 

the district court did not plainly err in calculating Davis’s sentence.

3. Davis attacks his conviction for possession of a firearm on the grounds 

that he was not convicted of a crime of violence. Given the Supreme Court’s recent 

decision in United States v. Davis, 139 S. Ct. 2319 (2019), we agree. Davis held that 
5

§ 924(c)’s residual clause, 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague. 

139 S. Ct. at 2336. Here, Davis was convicted of violating § 924(c) for possessing 

or carrying a firearm in furtherance of a “crime of violence”—namely, a RICO 

conspiracy.1 There is no real dispute that Davis’s § 924(c) conviction depended upon 

the statute’s now-unconstitutional residual clause.2 We accordingly vacate his 

conviction and remand for full resentencing. See Davis, 139 S. Ct. at 2336 (“[W]hen 

a defendant’s § 924(c) conviction is invalidated, courts of appeals routinely vacate 

the defendant’s entire sentence on all counts so that the district court may increase 

the sentences for any remaining counts if such an increase is warranted.”) 

(quotations omitted). 

AFFIRMED in part, REVERSED and REMANDED in part.

1 The drug trafficking conspiracy cannot serve as the predicate offense for Davis’s

§ 924(c) conviction. Although the Second Superseding Indictment includes both 

conspiracies as predicate offenses, the Government limited its § 924(c) theory at 

trial to the RICO conspiracy. The jury instructions and verdict reflect this 

limitation. 

2 The Government attempts to salvage Davis’s § 924(c) conviction by arguing that 

the RICO conspiracy satisfies the statute’s still-operative elements clause, 18 

U.S.C. § 924(c)(3)(A), which defines “crime of violence” as a felony offense that 

“has as an element the use, attempted use, or threatened use of physical force 

against the person or property of another.” It doesn’t. Indeed, rather than specify

which of conspiracy’s elements fits this description, the Government falls back on 

the objective-focused arguments previously used to satisfy the residual clause. But 

that is no longer the law.