UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50080 Plaintiff-Appellee, D.C. No. v. 2:16-cr-00862-RHW-1

GARY LAMAR HENRY, AKA OPINION G-Thing, AKA G., Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Robert H. Whaley, District Judge, Presiding

Argued and Submitted November 12, 2020 Pasadena, California

Filed January 6, 2021

Before: Morgan Christen and Paul J. Watford, Circuit Judges, and Lee H. Rosenthal, * Chief District Judge.

Opinion by Chief District Judge Rosenthal

* The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation. 2 UNITED STATES V. HENRY

SUMMARY **

Criminal Law

The panel affirmed convictions for one count of conspiracy to commit bank robbery under 18 U.S.C. § 371; five counts of armed bank robbery under 18 U.S.C. § 2113(a) and (d); two counts of bank robbery under § 2113(a); and three counts of brandishing a firearm during the bank robberies under 18 U.S.C. § 924(c)(1)(A)(ii).

The panel held that the defendant did not waive his Speedy Trial Act claim, that the district court made sufficient findings to support its three ends-of-justice continuances under 18 U.S.C. § 3161(h)(7), and that the delays were not unreasonable.

The panel held that the defendant did not waive his claims under United States v. Davis, 139 S. Ct. 2319 (2019), and Honeycutt v. United States, 137 S. Ct. 1626 (2017), that the district court misapplied Pinkerton liability to the § 924(c) counts, and that Rosemond v. United States, 572 U.S. (2014), requires revisiting Pinkerton liability.

Because the defendant’s convictions are valid under either a Pinkerton or aiding-and-abetting theory, the panel did not need to decide which theory the jury used to convict. The panel held that Honeycutt, which addressed joint and several liability under 21 U.S.C. § 853, does not apply principles of conspiracy and thus does not require this court

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. HENRY 3 to vacate the defendant’s § 924(c)’s convictions. The panel also held that Davis, under which crimes of violence for § 924(c) are limited to those that have violence as an element under § 924(c)(3)(A), does not conflict with or undermine the cases upholding § 924(c) convictions based on Pinkerton liability.

The panel reviewed for plain error the defendant’s argument that his § 924(c) convictions should be vacated because the jury instructions and verdict form for the predicate § 2113(d) convictions only required the jury to find a conspiracy to commit generic bank robbery and did not require the jury to find the knowing use of a gun. Noting that Rosemond did not alter Ninth Circuit precedents on accomplice liability, the panel declined the defendant’s request to revisit the mens rea required for Pinkerton liability in light of the Supreme Court’s holding in Rosemond that “knowledge”—not just reasonable foreseeability—is required for aiding-and-abetting liability for § 924(c) charges. The panel held that the district court’s instructions on aiding-and-abetting liability were not plainly erroneous, and that the defendant’s conviction on either a Pinkerton or an aiding-and-abetting theory was amply supported.

The panel held that the defendant preserved the claim that the indictment failed to allege the necessary elements of armed bank robbery under § 2113(d). Noting that the word “assault” used in the in