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Defendants-appellants appeal from judgments of conviction and sentence entered in the United States District Court for the Northern District of New York (Mordue, C.J.), for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68. All were convicted under a one-count indictment charging conspiracy to violate the provisions of 18 U.S.C. § 1962(c) (prohibiting participation in the affairs of an enterprise through a pattern of racketeering activity). The conspiracy was charged as a violation of 18 U.S.C. § 1962(d). Two of the defendants-appellants entered into plea agreements prior to trial. A jury found that the remaining five appellants agreed to participate in a pattern of racketeering activity that included conspiracy to distribute and/or possess with intent to distribute 50 or more grams of crack cocaine. The district court sentenced all defendants-appellants to terms of imprisonment. The terms ranged from 214 months to life. The sentences included terms of supervised release of four to five years and $100 special assessments.

On appeal, the defendants-appellants now bring a host of challenges to their convictions and sentences. We examine with particularity three of the arguments raised by them: (1) whether the existence of a RICO enterprise is a necessary element that the government must prove to establish a RICO conspiracy in violation of 18 U.S.C. § 1962(d); (2) whether there was sufficient evidence to prove an agreement that an enterprise would be established; and (3) whether the district court's failure to require unanimity as to which predicate acts the defendants agreed to commit was reversible error, the district court having instructed the jury that it must find that each defendant agreed to commit at least two racketeering acts and agree unanimously on the type of racketeering acts each defendant agreed to commit. Because all of the defendants' claims are ultimately without merit, for the reasons that follow we affirm the judgments of conviction in all respects but remand defendant-appellant Gregory Thomas's case to the district court for resentencing in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).


637 F.3d 59 (2011)

UNITED STATES of America, Appellee, v. Billy J. APPLINS, James Kelly, Nathan Speights, Joseph Derby, Lonnie Singletary, Gregory Griffin, Andre Applins, Tyler Willis, Skyler Willis, Defendants, Charmish Singletary, Dennis Jones, Jerrawn Thomas, Gregory Thomas, William Robinson, Ismail Pierce, Defendants-Appellants.[*]

Docket Nos. 07-2193-cr(L); 07-2194-cr; 07-2217-cr; 07-2312-cr; 07-2372-cr; 09-0225-cr.

United States Court of Appeals, Second Circuit.

Argued: June 10, 2010.

Decided: March 1, 2011.