#### UNITED STATES of America, Appellee, v. Tebiah S. TUCKER, Christopher McMillian, Defendants-Appellants.

Nos. 04-1769-cr, 04-1800-cr.

United States Court of Appeals, Second Circuit.

Jan. 29, 2008.

Randall D. Unger, Bayside, NY, for Defendant-Appellant Christopher McMillian.

Carl J. Herman, West Orange, NY, for Defendant-Appellant Tebiah S. Tucker.

Kirby A. Heller, Attorney, Criminal Division, Appellate Section, U.S. Department of Justice, (Glenn T. Suddaby, United States Attorney, Northern District of New York, on the brief, Miroslav Lovric, Assistant United States Attorney, Northern District of New York, of counsel), for the United States.

PRESENT: AMALYA L. KEARSE, PIERRE N. LEVAL and JOSÉ A. CABRANES, Circuit Judges.

SUMMARY ORDER

Defendants-Appellants Tebiah S. Tucker and Christopher McMillian appeal from a judgment of conviction entered against them by the District Court after a jury found them guilty of: narcotics conspiracy in violation of 21 U.S.C. §§ 841, 846 (Count One); murder while engaging in a drug trafficking offense in violation of 21 U.S.C. § 848(e)(1)(A) (Count Two); RICO conspiracy in violation of 18 U.S.C. § 1962(d) (Count Three); violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959 (Counts Four and Five); violating 18 U.S.C. § 924(c) by possessing and using a firearm in furtherance of a drug trafficking crime—namely, the narcotics conspiracy described in Count One of the indictment (Counts Nine, Ten, Eleven and Twelve); and being felons in possession of a firearm in violation of 18 U.S.C. § 922 (Counts Fourteen and Fifteen). On appeal, defendants seek judgments of acquittal for various of their convictions1 and a remand for reconsideration of their sentences pursuant to *United States v. Crosby,*397 F.3d 103 (2d Cir.2005).2 We as*347sume the parties’ familiarity with the facts, the issues on appeal, and the procedural history of this case.

Defendants and the Government both contend that defendants’ conviction on Count One of the indictment (conspiracy to distribute or possess with intent to distribute *fifty*or more grams of crack cocaine) is invalid because (1) the jury originally convicted both defendants of conspiracy to distribute or possess with intent to distribute *less than fifty*grams of crack cocaine,3 and (2) the verdict memorialized in the judgment of conviction was obtained when the District Court incorrectly resubmitted the verdict form on count one to the jury after the jury returned its verdict, was polled, and discharged.

We need not decide whether the District Court erred because all parties request that the original verdict be reinstated. Accordingly, we remand this matter to the District Court in order that the District Court may (1) reinstate the jury’s original verdict on count one and (2) reconsider defendants’ sentences pursuant to *United States v. Crosby.*

We have considered defendants’ remaining arguments and find them to be without merit. We therefore affirm their other convictions.

The mandate shall issue forthwith.

1

. McMillian challenges the sufficiency of the evidence supporting his RICO convictions (counts 3, 4, 5) and the District Court’s denial of his motion for a new trial based on juror misconduct. Tucker contends that alleged inconsistencies in the jury’s original verdict form require the vacating of his convictions on counts 1, 2, and 3. Both defendants challenge the sufficiency of evidence with respect to their convictions for narcotics conspiracy.

2

. Tucker was sentenced principally to 240 months' imprisonment on count 1 (narcotics conspiracy), life imprisonment on counts 2-5, 7 years on counts 11 and 12, and 120 months on count 15. All terms were to run concurrently, with the exception of the sentence imposed on counts 11 and 12.

McMillian was sentenced principally to 120 months’ imprisonment on count 1, life imprisonment on counts 2-5, 120 months on count *34714, and 7 years on counts 9 and 10. All terms were to run concurrently, with the exception of the sentence imposed on counts 9 and 10.

3

. McMillian was originally convicted of conspiracy to distribute or possess with intent to distribute *more than five but less than fifty grams*of crack cocaine. Tucker was originally convicted of conspiracy to distribute or possess with intent to distribute *more than zero but less than five grams*of crack cocaine.