United States of America v. Gullett-El Taquan-Rashe

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GULLETT-EL TAQUAN-RASHE,
Defendant-Appellant.
No. 17-50093; 17-50096
D.C. No.
2:14-cr-00725-CAS-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted February 4, 2019
Pasadena, California
Before: WARDLAW and BEA, Circuit Judges, and DRAIN, ** District Judge.
Gullett-El Taquan-Rashe (“Gullett”) raises two issues in this consolidated
appeal. First, Gullett challenges his convictions of making a false claim against a
government agency (Counts One and Two), in violation of 18 U.S.C. § 287, and
attempting to file a false lien or encumbrance against government employees or
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
FILED
FEB 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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officials (Counts Three and Four), in violation of 18 U.S.C. § 1521. He argues the
district court erred in revoking his pro se status prior to trial, thereby mandating a
reversal of his convictions. Second, Gullett challenges the district court’s
imposition of a two-level sentencing enhancement under U.S.S.G. §
2A6.1(b)(2)(B), arguing the court erred in finding his offenses involved more than
two false liens or encumbrances. We have jurisdiction pursuant to 28 U.S.C. §
1291. We affirm.
1. The district court did not err in revoking Gullett’s pro se status. Gullett
implicitly consented to the revocation of his Faretta rights when standby counsel
stated on the record, with Gullett present, that Gullett preferred representation if
the court was going to proceed to trial without a continuance, and, when given the
opportunity to speak, he did not object. See McKaskle v. Wiggins, 465 U.S. 168,
182 (1984) (“A defendant can waive his Faretta rights. . . . Even when he insists
that he is not waiving his Faretta rights, a pro se defendant’s solicitation of or
acquiescence in certain types of participation by counsel substantially undermines
later protestations that counsel interfered unacceptably.”). Absent any indication
that Gullett opposed standby counsel’s statement, the district court had no way of
knowing that he held a different position on the matter, assuming he did in fact
hold such a position at the time. See id. at 179 (holding Faretta rights are
adequately vindicated where the defendant has the opportunity to address the court

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freely and disagreements with standby counsel are resolved in the defendant’s
favor).
2. Nor did the district court err in imposing a two-level sentencing
enhancement under § 2A6.1(b)(2)(B). In determining whether to apply an
enhancement under § 2A6.1(b)(2)(B), courts are permitted to consider all “relevant
conduct” that occurred prior to and during the offense of conviction. See U.S.S.G.
§ 2A6.1(b)(2)(B), cmt. n.1; U.S.S.G. § 1B1.1, cmt. n.1(H). Relevant conduct
includes “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant.” U.S.S.G. §
1B1.3(a)(1)(A). It follows that courts may consider uncharged conduct when
determining whether to apply an enhancement under § 2A6.1(b)(2)(B). See United
States v. Horob, 735 F.3d 866, 872 (9th Cir. 2013).
Counts Three and Four of Gullett’s convictions were predicated on a
December 1, 2010 filing in Los Angeles County, California that attempted to
impose false liens on the property of two IRS employees, Barbara Gourley and
Maureen Green. While the underlying indictment named only Gourley and Green
as victims, Gullett’s 2010 California filing also purported to impose false liens on
the property of two additional government officials, J. Russell George and Douglas
Shulman. Consequently, Gullett’s 2010 California filing, in and of itself, provided

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sufficient grounds to find his offenses involved more than two false liens or
encumbrances.
AFFIRMED.

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