[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________ ________________ No. 13

- 14994

________________________ D.C. Docket No. 1:10

- cr
- 00086

- RWS

- ECS

- 1 UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus MIGUEL ALVARADO

- LINARES, a.k.a. Joker, DIMAS ALFARO

- GRANADOS, a.k.a. Toro, ERNESTO ESCOBAR, a.k.a. Pink Panther, a.k.a. Flaco, JAIRO REYNA OZUNA, a.k.a. Flaco, Defendants

- Appellants.

________________________ Appeal s from the United States District Court for the Northern District of Georgia

________________________ (June 20 , 2017 ) Case: 13-14994 Date Filed: 06/20/2017 Page: 1 of 162 Before TJOFLAT , JULIE CARNES and MELLOY , ∗ Circuit Judges.
PER CURIAM: Following several murders tied to MS

- 13 gang activity in and around Atlanta, a jury convicted the defendants of RICO , Violent C rime in Aid of RICO (“VICAR”), and/or firearm offenses

. Individual d efendants raise several arguments on appeal challenging the sufficiency of the indictment, alleg ing Speedy Trial Act violations , attacking one verdict as internally inconsistent, and challenging the sentences imposed. In addition, defendants allege the district court incorrectly instructed the jury as to the meaning of “aiding and abetting ” and as to the relative roles of the jury and the court in determining punishment. W e affirm in all respects. I. Background

The four defendants in thi s appeal , Miguel Alvarado

- Linares, Ernesto Escobar, Dimas Alfaro

- Granados, and Jairo Reyna

- Ozuna , were members of a local subgroup of the international MS

- 13 gang

. Alvarado

- Linares was the local leader, and the local group shared a pool of “gang guns.” T he jury answered several specific questions as to each defendant for enhancement or conviction purposes. Also, as to firearm counts, the jury determin ed wheth er each defendant brandished a weapon and whether a death resulted. All four defendants were

conv icted of RICO conspiracy with some being found to have an enhancement for RICO involving murder. All four defendants also were convicted of different accompanying individual counts for related VICAR and/or firearm offense s.

∗ Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting by designation. Case: 13-14994 Date Filed: 06/20/2017 Page: 2 of 16Evidence at trial focused up on several individual violent crimes . In one instance, Defendant Alvarado

- Linares directed and participated in the execution

style murder of a fellow gang member, Lal Ko, who was suspected of being a police inform ant

. A different gang member actually com mitted the shooting. Defendant Alfaro

- Granados al so participated in this murder.
In another instance, a different gang member wanted to “calm down” or leave the gang . D efen dant Alvarado

- Linares directed this gang member to perform a murder as the price of being allowed to leave. Alvarado

- Linares and Alfaro

Granados selected a rival gang member to be murdered. These two defendants followed in a separate car when, on a highway, the departing member shot and killed one of the rival gang members and non

- fa tally shot a second rival gang member.
In a third instance, Defendant Escobar and another gang member fought with rival gang members at a gas station where the rival gang members worked. After the fight, and after leaving the gas station, Escobar called Defendant Reyna

Ozuna and reported the fight. Reyna

- Ozuna purportedly held a leadership role at the time. Reyna

- Ozuna, Escobar, and other gang members later returned to the gas station . R eyna
- Ozuna provided a .45 caliber handgun , and Escobar and anothe r gang member took the gun to a secluded vantage point near the gas station. From that vantage point, Escobar or the other gang member shot and killed one of the participants from the earlier fight, a sixteen

- year
- old r ival gang member

. The jury found Al var ado

- Linares guilty on nine Counts, including RICO conspiracy with an enhancement for murder , in violation of 18 U.S.C. § 1 962(d) ; multiple VICAR murders, in violation of 18 U.S.C. § § 2 and 1959(a)(1) ; and multiple firearm offenses . Alvarado

- Linares rec eived three life sentences and six

Case: 13-14994 Date Filed: 06/20/2017 Page: 3 of 164 terms of years with several of the terms to be served consecutive to the life sentences. 1

1 The jury found Alvarado

- Linares guilty as follows:
Count 1: RICO conspiracy in violation of 18 U.S.C. § 1962(d);
Count 2: VICAR , namely, aiding and abetting the murder of fellow gang member Lal Ko in violation of 18 U.S.C. § § 2 and 1959(a)(1);
Count 3: A iding and abetting the use and carrying of a firearm in relation to a crime of violence (the VICAR offens e of Count 2) in violation of 18 U.S.C. § § 2 and 924(c) (1)(A)(iii) ; Count 4: VICAR, namely, aiding and abetting the murder on the highway in violation of 18 U.S.C. § § 2 and 1959(a)(1) ; Count 5: Ai ding and abetting the use and carrying of a firearm in rela tion to a crime of violence (the VICAR offense of Count 4) in violation of 18 U.S.C. § § 2 and 924(c)(1)(C)(i) ; Count 8: VICAR, namely, aiding and abetting the murder at the gas station in vi olation of 18 U.S.C. § § 2 and 1959(a)(3 );
Count 9: A iding and abet ting the use and carrying of a firearm in relation to a crime of violence (the VICAR offense of Count 8) in violation of 18 U.S.C. § § 2 and 924(c) (1)(C)(i) ; Count 10: VICAR, namely, aiding and abetting the murder of another gang member in violation of 18 U .S.C. § § 2 and 1959(a)( 3 );
Count 11: A iding and abetting the use and carrying of a firearm in relation to a crime of violence (the VICAR offense of Count 10) in violation of 18 U.S.C. § § 2 and 9 24(c)(1)(C)(i)

. Alvarado

- Linares was sentenced to concurrent l ife sentences on Counts 1, 2, and 4; concurrent twenty

- year sentences on Counts 8 and 10; a ten

- year sent ence on Count 3 and twenty

- five

- year sentences on Counts 5, 9, and 11 , with the ten

- and twenty

- five

- year sentences to be served consecutive to each ot her and to all other sentences.

Case: 13-14994 Date Filed: 06/20/2017 Page: 4 of 165 The jury found Escobar guilt y on three C ounts , including RICO conspiracy with an enhancement for murder , a VICAR murder, and a we apons charge. Escobar received two concurrent life sentences and a consecutive term of years. 2
The jury found Alfaro

- Granados guilty on five Count s , including RICO conspiracy with an enhancement for murder , two VICAR murders , and two firearm Count s
. Alf aro
- Granados received three concurrent life sentences with two

con secutive terms of years

. 3

2 The jury found Escobar guilty as follows:

Count 1: RICO conspiracy in violation of 18 U.S.C. § 1962(d);
Count 18: VICAR , namely, aiding and abetting murder in violation of 18 U.S.C. § § 2 and 1959(a) ; Count 19: Aiding and abetting the use and carrying of a firearm in relation to a crime of violence in violation of 18 U.S.C. § § 2 and 924(c) (1)(A)(iii)

. Escobar was sentenced to concurr ent life sentences on Counts 1 and 18 with a consecutive ten

- year sentence on Count 19.

3 The jury found Alfaro

- Granados guilty as follows:

Count 1: RICO conspiracy in violation of 18 U.S.C. § 1962(d);
Count 2: VICAR , namely, aiding and abetting the murder of fellow gang member Lal Ko in violation of 18 U.S.C. § § 2 and 1959(a)(1);
Count 3: Ai ding and abetting the use and carrying of a firearm in relation to a crime of violence (the VICAR offense of Count 2) in violation of 18 U.S.C. § § 2 and 924(c) (1)(A)(iii) ; Count 4: VICAR, namely, aiding and abetting the murder on the highway in violation o f 18 U.S.C. § § 2 and 1959(a)(1); Case: 13-14994 Date Filed: 06/20/2017 Page: 5 of 166 Reyna

- Ozuna was found guilty of RICO conspiracy but without an enhancement for RICO conspiracy involving murder. He was found not guilty of the VICAR murder at th e gas station and not guilty of a § 9 24(j) charge alleging the use or carrying of a firearm in relation to a violent crime resulting in death. But , he was found guilty of a lesser

- included § 924(c) charge for using or carrying a firearm . In addition, the jury specifically found that Reyna

- Ozuna did not actually brandish a firearm. Reyna

- Ozuna received a sentence of ninety

- six months on the RICO Conspiracy Count, and a consecutive sixty months for the § 924(c) firearm conviction. 4 We present additional f acts material to individual arguments below.

Count 5: Aiding and abetting the use and carrying of a firearm in relation to a crime of violence (the VICAR offense of Count 4) in violation of 18 U.S.C. § § 2 and 924( c ) (1)(C)(i)

. Al faro

- Granados was sentenced to concurre nt life sentences on Counts 1, 2, and 4; a ten

year sentenc e on Count 3; and a twenty

- five

- year sentence on Count 5, with the ten

- and twenty

five

- year sentences to be served consecutive to each ot her and to all other sentences.

4 The jury found Reyna

- Ozu na guilty as follows:

Count 1: RICO conspiracy in violation of 18 U.S.C. § § 1962(d), without an enhancement for murder;
Count 19: Aiding and abetting the use and carrying of a firearm in relation to a crime of violence in violation of 18 U.S.C. § § 2 and 9 24(c) (1)(A)(i)

. Reyna

- Oz una received a ninety

- six

- month sentence on the RICO count and a consecutive sixty

- month sentence for the firearm count.

Case: 13-14994 Date Filed: 06/20/2017 Page: 6 of 167 II. Discussion

a. Alvarado

- Linares

Alvarado

- Linares argues the district court lacked subject matter jurisdiction over his case because the indictment failed to allege facts that could support the existence of an “association in fact” for purposes of de monstrating a RICO enterprise. He does not challenge the sufficiency of the evidence presented at trial to establish this same element of the RICO offense. He also argues the indictment alleged merely a series of intrastate, state

- law offenses and failed to demonstrate a substantial effect on interstate commerce. Having reviewed the detailed and extensive indictment, we find these arguments to be wholly without merit and affirm the judgment in this regard without further comment. See United States v. Jordan , 582 F.3d 1239, 1245 (11th Cir. 2009) (per curiam) (“ An indictment is consid ered legally sufficient if it: ‘ (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent pr osecution for the same offense.’” ( quoting United States v. Woodruff , 296 F.3d 1041, 1046 (11th Cir. 2002)) ); United States v. Flores , 572 F.3d 1254, 1267

– 68 (11th Cir. 2009) (per curiam) (holding that a RICO conspiracy as a whole must have an effect on interstate commerce and finding the requisite nexus based upon partici pation in a national

- scale gang ).

Alvar ado

- Linares also alleges a violation of the Speedy Trial Act , 18 U.S.C. § 3161, arguing that the calculation of the time period in which he should have been indicted by federal authorities should have started with his arrest on state charges. Accordingly , h e argues that the district court erred in refusing to dismiss his indictment , and also in denying his request for an evidentiary hearing to

Case: 13-14994 Date Filed: 06/20/2017 Page: 7 of 168 explore the extent of cooperation between state and federal law enforcement officials . Additional facts are nece ssary for examination of these arguments.

Alvarado

- Linares was arrested on state charges on January 24, 2009. While still in state custody, he was indicted federally o n October 27, 2009, for being an illegal alien in possession of a firearm. The State th en dropped its charges and, o n November 4, 2009, he was taken into custody by fed eral authorities on the firearm charge. Subsequently, o n February 24, 2010, while still in federal custody, he was indicted on the present counts, and the government dropped its initial firearm charge

. The Speedy Trial Act requires that an individual arrested on federal charges be indicted within thirty days from the date of the arrest. See § 3161(b). Alvarado

Linares asserts that state and federal authorities communicated extensively during his state custody and that the state was m erely holding him on its charges until federal authorities could indict him on federal charges. Based on th e alleged collaborative conduct between state and federal officials, Alvarado

- Linares a rgues that the date of his state arrest should have been treated as if it were a federal arrest and he should have therefore been indicted by federal authorities within thirty days of that state arrest , o r by February 23, 2009. Because the federal authori ties missed this deadline for indicting him on federal charges that Alvarado

- Linares imputes to them, he asks that his indictment be dismissed or, in the alternative, that a hearing be held to explore the state and federal prosecutors ’ intentions, actions , and communications

. Alvar a do

- Linares raised the Speedy Trial Act issue below . A magistrate judge issued a report and recommendation denying relief . A lvarado

- Linares objected , and the di strict court adopted the recommendation . We therefore r eview

Case: 13-14994 Date Filed: 06/20/2017 Page: 8 of 169 de nov o the denial of relief on Speedy Trial Act grounds

. See United States v. Williams , 314 F.3d 552, 556 ( 11th Cir. 2002) (per curiam); United States v. Twitty , 107 F.3d 1482, 1488 (11th Cir. 1997)

. We review for abuse of discretion the district court’s deni al of an evidentiary hearing. Diveroli v. United States , 803 F.3d 1258, 1262 (11th Cir. 2015).

It is long and well

- settled in this Circuit that, notwithstanding any coordination between state and federal officials, the time within which federal authoritie s must indict a defendant under the Speedy Trial Act is measured by the date of the federal arrest, not any state arrest. See United States v. Russo , 796 F.2d 1443, 1450

– 51 (11th Cir. 1986) ; United States v. Bell, 833 F.2d 272, 277 (11th Cir

. 1987). Acc ord United States v. Lewis, 732 F.3d 6, 12 (1st Cir. 2013); United States v. Woolfork, 399 F.3d 590, 595

- 96 (4th Cir. 2005).

Alvar a do

- Linares nonetheless argues that , for purposes of Speedy Trial Act calculations, we should impute the state arrest date t o federal authorities when the state has held the defendant only as a “ruse” to give federal authorities time to charge the defendant. It is true that we have recognized the possibility of a narrow “ruse” exception for purposes of the Speedy Trial Act whe n federal immigration officials detain an immigrant, “not to effectuate deportation, but rather as a ‘mere

ruse [ ] to detain a defendant for later criminal prosecution.’” United States v. Noel, 231 F.3d 833 , 836 (11th Cir. 2000) ); a ccord United States v. D rummond , 240 F.3d 1333, 1336 (11th Cir. 2001).

But this potential “ruse” exception is limited to a situation in which federal immigration officials detain an immigrant ostensibly to remove him from the country, while in reality they actually hold him sole ly for the purpose of bringing federal criminal charges. The government correctly points out that Alvarado

Case: 13-14994 Date Filed: 06/20/2017 Page: 9 of 1610 Linares identifies no Supreme Court or Eleventh Circuit authority recognizing a ruse exception in a situation like the present case : state confineme nt on state charges followed by federal arrest and indictment on federal charges

. J oint state and federal investigations are the norm , and extensive discussion back and forth between state and federal authorities is not uncommon . Because state authoritie s at all times held sovereign discretion as to how they separately might handle their own prosecution or non

- prosecution for state offenses, it was not error to deny relief as to this issue. And, given the strength of the government’s position in this reg ard and the absence of authority to support Alvarado

- Linares’s theory, the district court did not abuse its discretion in denying an evidentiary hearing. See Diveroli , 803 F.3d at 1263

– 64 (no abuse of discretion in denial of a hearing where authority woul d not otherwise permit relief).

b. Escobar

Like Alvarado

- Linares, Escobar challenges the indictment and alleges a Speedy Trial Act v iolation. Escobar, however, did not raise either of the s e issue s below, so our review is merely for plain error. See United States v. Rodriguez , 398 F.3d 1291, 1298 ( 11th Cir. 2005 ) ( “ An appellate court may not correct an error the defendant failed to raise in the d istrict court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights

. If all thre e conditions are met, an appellate court may then exercise its discretion

. . . only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” ( citation s omitted ) ). The facts Escobar asserts to support his Speedy Trial Act argument are substantially similar to the facts Alvarado

- Linares presents, and

Case: 13-14994 Date Filed: 06/20/2017 Page: 10 of 1611 Escobar asserts no independent arguments regarding the indictment. 5 Because we find no error in Alvarado

- Linares’s case even under de novo review, we find no p lain error in Escobar’s case. Without erro r, there cannot be plain error. Escobar also asserts an Eighth Amendment challenge to his life sentence. He argues the evidence at trial showed only that he was involved with the shooting at the gas station, not that he actually fired the fatal shot. In fact, the jury convicted him of a iding and abetting the use and carrying of a firearm in relation to a crime of violence in violation of 18 U.S.C. § § 2 and 924(c)(1)(A)(iii) , but did not find him guilty of the gre ater offense of using a firearm to cause a death, § 924(j). A ccording to Escobar, the jury’s finding shows h e did not fire the gun, and therefore, it amounts to cruel and unusual punishment under a proportionality principle to impose a life sentence.

We reject this argument. Regardless of the details of the jury’s findings, the limited proportionality principle in the Eighth Amendment does not preclude the imposition of a statutorily authorized life sentence for a non

- shooter’s involvement in a murder. See United States v. Reynolds , 215 F.3d 1210, 1214 (11th C i r. 2000) (per curiam) ( “ [I] f it is grossly disproportionate, the court must then consider the sentences imposed on others convicted in the same jurisdiction and the sentences imposed for commissio n of the same crime in other jurisdictions. ”) ; United States v. Brant , 62 F.3d 367, 368 (11th Cir. 1995) (per curiam) (“ In non

- capital cases, the Eighth Amendment encompasses, at most, only a narrow proportionality principle. ”)

. Life imprisonment for acti ve participation in a gang

- related execution simply is not grossly disproportionate to the offense , regardless of whether the jury

5 Escobar was arrested on state charges on June 9, 2008. On October 27, 2009, he was indicted federally for po ssessing a stolen firearm, and , on November 3, 2009, he was arrested on that federal charge. He was indicted on the present charges on February 24, 2010, and the initial federal firearm charge was dropped shortly thereafter.

Case: 13-14994 Date Filed: 06/20/2017 Page: 11 of 1612 found Escobar or a different gang member actually fired the fatal shot. See 18 U.S.C. § 1963(a) (life sentence for RICO invo lving murder); 18 U.S.C. § 1959(a)(1) (life sentence for VICAR murder). Finally, Escobar argues the district court erred because it instructed the jury that punishment was an issue reserved for the court and th at th e jury’s role was cabined to determining the facts and finding defendants guilty or not guilty of the charged offenses. Escobar argues that, because his case involved mandatory sentences, there remained no decisions for the court regarding punishment after determinations of guilt, thus making t he court’s description of roles inaccurate as to this case. Again, we reject Escobar’s argument. The district court properly instructed the jury using a model instruction that accurately described the relative roles of the court and the jury . The fact t hat no actual discretion remained for the court after the finding of guilt is immaterial. It was still proper to instruct the jury that its role was to assess the facts and find the defendant s guilty or not guilty. See United States v. Thigpen , 4 F.3d 15 73, 1577

– 78 (11th C ir. 1993) (holding that a departure from this general instruction is not authorized even in cases involving possible insanity defenses and resulting commitments to mental health facilities).

c. Alfaro

- Granados

Alfaro

- Granados challenges his life sentence as cruel and unusual punishment pursuant to the Eighth Amendment. He acknowledges that success of such a challenge is “exceedingly rare” under the limit ed proportionality principle applicable to non

- capital cases. Flores , 572 F.3d at 1268 (quoting United States v. Raad , 406 F.3d 1322, 1323 (11th Cir. 2005 ) )

. He presents no argument illustrating his case to be exceedingly rare nor does he distinguish his case from that of his

Case: 13-14994 Date Filed: 06/20/2017 Page: 12 of 1613 codefendant Escobar. W e therefore reject his challenge for the s ame reasons stated above.

d. Reyna

- Ozuna 6
To review, Reyna

- Ozuna was found guilty of Count 1 for RICO conspiracy but was specifically found not guilty regarding RICO conspiracy involving murder. He was found not guilty of Count 18

— the VICAR murder at the ga s station. And, he was found not guilty of the § 924(j) charge in Count 19 regarding use of a firearm in relation to a violent crime causing the death of another. But, he was found guilty of what was, from an elements point of view , the lesser

- inclu ded § 924(c) charge underlying Count 19 : use of a firearm in relation to a crime of violence (without specifying that the use caused the death of another). In addition, the jury specifically found that Reyna

- Ozuna did not actually brandish the firearm in relat ion to this count. Reyna

- Ozuna argues it was inconsistent to find him guilty of the § 924(c) count for aiding or abetting the use or carrying of a firearm in relation to a crime of violence while acquitting him as to RICO conspiracy involving murder and finding he did not brandish the firearm or cause a death . According to Reyna

- Ozuna, the only identified predicate violent crime was the VICAR murder of which he was

6 Reyna

- Ozuna challenges his 1 56

- month sentence as cruel and unusual under the Eighth Amendment . We reject his challenge for the reasons previously stated. Further, Reyna

- Ozuna argues for the first time on appeal that the district court erroneously instructed the jury as to the corre ct elements and intent requirement for “aiding and abetting.” He cites Rosemond v. United States , 134 S. Ct. 1240, 1251

– 52 (2014), a case in which the Supreme Court held aiding and abetting the use of a firearm in a drug transaction required a showing th at the party not brandishing the firearm hav e advance knowledge that the co defendant would be carrying the firearm. Rosemond is factua l l y inapposite for several reasons, primarily because the evidence in Reyna

- O zuna’s case showed quite clearly he provided the firearm. In any event , our review is for plain error and he has not made the showing required for relief under this stringent level of review. Case: 13-14994 Date Filed: 06/20/2017 Page: 13 of 1614 acquit t ed (Count 18) . Further, the jury found him not responsible for the death resultin g from the murder of Count 18 when the jury acquitted on the § 924(j) charge of Count 19. See 18 U.S.C. § 924(j) (providing enhanced penalties for causing the death of another person through use of a firearm “in the course of a violation of” § 924(c) ). H e argues that, in the absence of some other predicate violent crime, his § 924(c) conviction is a logical impossibility and creates an incon sistency internal to one count. In general, inconsistent verdicts as between counts are no t grounds for relief beca use a reviewing court can never know “whose ox has been gored

. ” United States v. Powell , 469 U.S. 57, 65 (1984). I f a mistake has occurred and the verdicts do not actually reflect the jury’s true opinions, it cannot be known whether the jury err ed by uni ntentionally convicting on one of the two counts or by failing to convict on one of the two counts. See Dunn v. United States , 284 U.S. 390, 393 (1932) (“The most that can be said in such cases is that the verdict shows that either in the acquittal or th e conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’ s guilt.” (citation omitted) ). Further, given the shield preventing analysis of juror deliberations, it can never be known whe ther the jury, in fact, purposefully engaged in jury nullification as to the acquitted count. See Powell , 469 U.S. at 66

– 67 . In short, where a jury’s act of lenity can explain a purported inconsistency , no relief is available. Id. Reyna

- Ozuna’s case, h owever, involves a twist. It may , in fact, be a mislabeling of this issue to discuss it in terms of an internally inconsistent verdict. What he specifically allege s is an inconsistency between an underlying offense serving as a contemporaneous predicate, and a compound offense that depends upon the jury’s conclusions as to the facts of the predicate. Regardless, what

Case: 13-14994 Date Filed: 06/20/2017 Page: 14 of 1615 matters is not the presence of an arguable inconsistency; what matters is the sufficiency of the evidence to support the actual count of co nviction . Here , that evidence is sufficient. A similar situation was present in Powell , where the C ourt rejected the theory of relief for inconsistent verdicts . The Court held firmly that an acquittal on

one count could be deemed an act of lenity and st at ed that independent review for sufficient evidence looking at the facts rather than the outcomes ensured adequate protection. There , the C ourt stated:
[R] espondent ’ s argument that an acquittal on a predicate offense necessitates a finding of insufficien t evidence on a compound felony count simply misunderstands the nature of the inconsistent verdict problem. Whether presented as an insufficient evidence argument, or as an argument that the acquittal on the predicate offense should collaterally estop the Government on the compound offense, the argument necessarily assumes that the acquittal on the predicate offense was proper

— the one the jury “really meant.” This, of course, is not necessarily correct; all we know is that the verdicts are inconsistent. The Government could just as easily

— and erroneously

— argue that since the jury convicted on the compound offense the evidence on the predicate offense must have been sufficient. The problem is that the same jury reached inconsistent results; once that is e stablished principles of collateral estoppel

— which are predicated on the assumption that the jury acted rationally and found certain facts in reaching it s verdict

— are no longer useful. Powell , 469 U.S. at 68

. 7

7 The government argues any alleged inconsistency cannot serve as a basis for relief for Reyna

Ozuna becaus e Reyna

- Ozuna requested the § 924(c) instruction , thus inviting any error that may have arisen due to the use of that instruction. Because the inconsistent

- verdict argument fails of its own accord , it is unnecessary to address the invited error doctrine. Even if it were necessary to address the issue, our review of the relevant transcript pages suggests Reyna

- Ozuna may not have request ed the lesser

- included instruction in such a specific manner as to make the alleged error he no w complains of invited erro r.

Case: 13-14994 Date Filed: 06/20/2017 Page: 15 of 1616 Applying this standard, we conclude there was more than sufficient evidence to convict Reyna

- Ozuna of a violation of 18 U.S.C. § 924(c). T he alleged internal inconsistency is not inherent; it may be explained as a matter of lenity or jury nullification, and therefore, relief is unavailable.

We affirm the judgment of the district court. Case: 13-14994 Date Filed: 06/20/2017 Page: 16 of 16