A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense. The partners in the criminal plan must agree to pursue the same criminal objective and may divide up the work, yet each is responsible for the acts of each other. If conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators. As Justice Holmes observed: "[P]lainly a person may conspire for the commission of a crime by a third person." United States v. Holte, 236 U.S. 140, 144, 35 S.Ct. 271, 272, 59 L.Ed. 504 (1915). 522 U.S. at 63–64 (alteration in original) (internal citations and quotation omitted). This circuit has required the Government to establish two factors: "(1) that two or more people agreed to commit a substantive RICO offense and (2) that the defendant knew of and agreed to the overall objective of the RICO offense. These elements may be established by circumstantial evidence." Delgado, 401 F.3d at 296 (citation omitted). Thus, the second count requires sufficient evidence, direct or circumstantial, to prove each defendant agreed to "pursue the same criminal objective" even if taking on different roles within the organization. Salinas, 522 U.S. at 63.
For the same reasons recounted in support of the Count 1 convictions, Nieto and Hernandez’s challenge to Count 2, conspiracy to commit racketeering, lacks merit. Many witnesses testified about the memberships of Nieto and Hernandez in the Aztecas and the practices of the Aztecas in dealing drugs, robbing rival drug dealers, and committing violence against out-of-line members. A rational jury could find Nieto’s and Hernandez’s predicate acts, which conform with the enforcement side of the Aztecas’ business, and memberships in the Aztecas establish they conspired to commit racketeering and agreed to the overall objectives of the Aztecas.
In addition, Nieto asserts venue was improper because the drug purchases alleged in Racketeering Act Ten and Count 3 occurred in Dallas (located in the Northern District of Texas), not the Western District of Texas. This contention is probably waived for failure to brief, United States v. Reagan, 596 F.3d 251, 254–55 (5th Cir. 2010), but in any case lacks merit because the conspiracy was centered in the Western District. 18 U.S.C. § 3237(a). Accordingly, we hold there was sufficient evidence to convict Nieto and Hernandez on all three counts and venue was proper.
III
Appellants challenge the district court’s denial of their motions for a mistrial. We review "the denial of a mistrial for abuse of discretion." United States v. Elashyi, 554 F.3d 480, 507 (5th Cir. 2008). "The decision to declare a mistrial is left to the sound discretion of the judge . . . and . . . is appropriate when there is a high degree of necessity." Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1863 (2010) (internal quotation marks and citations omitted). "The decision whether to grant a mistrial is reserved to the broad discretion of the trial judge, a point that has been consistently reiterated in decisions of this Court." Id. (internal quotation marks and citations omitted).
Appellants assert the district court erred by conducting the ex parte interviews, which they allege is a per se error, and by denying the motions for a mistrial on the merits. They rely on cases requiring defendants be present at proceedings determining the partiality of jurors, Remmer v. Unites States, 347 U.S. 227 (1954) and United States v. Sylvester, 143 F.3d 923 (5th Cir. 1998). Those cases did not involve a situation where defense counsel agreed to the ex parte procedure; quite the contrary, defense counsel in those cases was wholly unaware of the district court’s investigation. Remmer, 347 U.S. at 228 (district court ordered FBI to investigate without advising defense counsel, who learned of the investigation in the newspaper); Sylvester, 143 F.3d at 932 ("Neither defense counsel nor the government was present during these meetings [with the district court] or had been notified of the alleged tampering or the voir dire."). Moreover, those cases were explicitly concerned with the effects of jury tampering by third parties, not the subjective feelings of jurors. Remmer, 347 U.S. at 228 (involving attempted bribery); Sylvester, 143 F.3d at 931–32 (involving threatening phone calls and attempts of a third party to persuade a juror). Our precedent "speaks in terms of extrinsic influences such as trial publicity versus intrinsic influences such as a juror announcing that he had determined the defendant was guilty prior to the end of the trial." United States v. Sotelo, 97 F.3d 782, 796 (5th Cir. 1996) (citation omitted). "This circuit has afforded trial courts broader discretion in dealing with intrinsic influences due to jury misconduct than it has afforded in cases of extrinsic influences and has specifically declined to presume prejudice from intrinsic influences because it would hamper the judge’s discretion." Id. "[R]egardless of the extrinsic/intrinsic classification, the trial court has broad discretion and the ultimate inquiry is: ‘Did the intrusion affect the jury’s deliberations and thereby its verdict?’" Id. at 797 (quoting United States v. Ramos, 71 F.3d 1150, 1154 (5th Cir. 1995)).
Contrary to the defendants’ unsupported assertion that the influence here was "decidedly extrinsic, " only the actions of Juror D.D.’s husband can arguably be characterized as extrinsic. The rest of the issues defendants challenge are intrinsic, such as the claim that jurors had made up their minds prior to deliberations. See Sotelo, 97 F.3d at 796. Biases are generally "described as an intrinsic influence." Id. at 797 (addressing racial bias).[1] This circuit has never held conducting ex parte interviews with the acquiescence of counsel to evaluate intrinsic influence is per se error, and we decline to do so now. See United States v. Reyes, 645 F.2d 285, 288 (5th Cir. Unit A May 1981).
Appellants take issue with the fact that several jurors expressed anxiety about the case and stated they had, to an extent, talked about the case, and that two indicated they had formed some opinions even though the interviews occurred before closing arguments. The district court has broad discretion to decide matters of impartiality generally, and that discretion is especially broad in matters of intrinsic influence. Id. at 796. In United States v. Ebron, this circuit "emphasize[d] that a district court, based on its unique perspective at the scene, is in a far superior position than we are to appropriately consider allegations of juror misconduct, both during trial and during deliberations." 683 F.3d 105, 126 (5th Cir. 2012) (alterations omitted) (quoting United States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006)); see also United States v. Ruggiero, 56 F.3d 647, 653 (5th Cir. 1995) ("an appellate court should accord great weight to the trial court’s finding that the extrinsic evidence in no way interfered with any juror’s decision.") (internal quotation marks and alterations omitted).
The district court’s broad discretion counsels against holding the district court abused its discretion in this case. The only juror with extrinsic influence, Juror D.D., was dismissed without objection, and the district court made a reasonable factual determination from its unique perspective that the remaining jurors could decide the case impartially. United States v. Reyes involved similar circumstances, including an out-of-court incident that involved only two jurors but was talked about among the remaining jurors. 645 F.2d at 288. The trial judge interviewed each juror individually, dismissed only the two involved, and decided the rest (including two alternates he interviewed) were not influenced by the incident and could follow his instructions. Id. As in the case sub judice, "[t]his procedure was followed with the express acquiescence of counsel." Id. The defendant contended the trial judge should have declared a mistrial sua sponte, but Reyes held the trial judge did not err under an abuse of discretion standard because the procedures he followed were "well within" his discretion. Id.
Here, the district court instructed the jurors to decide the case based on the evidence and law, and "jurors are presumed to follow the instructions given to them by the court." United States v. Owens, 683 F.3d 93, 104 (5th Cir. 2012). Though the jurors indicated some anxiety and intrinsic misconduct to the judge, with the possible exception of Juror D.D., none were so extreme that the district court’s judgment should be considered an abuse of discretion. Accordingly, we hold the district court did not abuse its discretion in denying the defendants’ motions for a mistrial.
IV
Nieto appeals his sentence on various grounds. We review sentencing for significant procedural errors first, including whether the district court "select[ed] a sentence based on clearly erroneous facts." Gall v. United States, 552 U.S. 38, 51 (2007). "When there are no procedural errors, this court will then ‘consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard’ and will ‘take into account the totality of the circumstances.’" United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir. 2011) (quoting Gall, 552 U.S. at 51). Reasonableness is reviewed in light of the 18 U.S.C. § 3553(a) factors. United States v. Booker, 543 U.S. 220, 261 (2005). We review a district court’s interpretation of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Nieto asserts the district court should not have sentenced him as a career offender because one of his prior convictions, the one for Injury to a Child in violation of Texas Penal Code § 22.04(a), does not constitute a "crime of violence" under the last clause of Sentencing Guideline § 4B1.2(a)(2), known as the residual clause. U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (2011). When determining whether a prior conviction is for a "crime of violence" for purposes of the career offender enhancement under the residual clause, "we follow essentially the ‘modified categorical approach, ‘ adapted from Shepard v. United States . . . under which this court analyzes the nature of the crime described by the statute rather than the underlying facts of the offense when considering the residual clause." United States v. Stoker, 706 F.3d 643, 649 (5th Cir. 2013) (citing Shepard v. United States, 544 U.S. 13, 20–26 (2005)). We use this approach to determine whether the crime "involves conduct that presents a serious potential risk of physical injury to another." United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011). "’[C]onduct set forth (i.e., expressly charged) in the count of which the defendant was convicted’ may be used to apply the residual clause." Stoker, 706 F.3d at 650 (quoting United States v. Lipscomb, 619 F.3d 474, 478 (5th Cir. 2011)).
Nieto cites to United States v. Andino-Ortega as authority for the proposition that § 22.04(a) cannot be considered a "crime of violence, " though that case dealt with § 2L1.2, not § 4B1.2(a). 608 F.3d 305, 310 (5th Cir. 2010). In Andino-Ortega, this circuit held a prior conviction under Texas Penal Code § 22.04 did not constitute a "crime of violence" for purposes of Sentencing Guideline § 2L1.2, which does not contain a residual clause, but rather requires physical injury to be an element of the statute of conviction. Id. at 311. In that case, the indictment charged the defendant with "intentionally and knowingly caus[ing] bodily injury to . . . a child younger than 15 years of age, by striking her with a weedeater." Id. at 310. Andino-Ortega held that when pared down, the statute proscribed causing "bodily injury, " but that could be caused by ways other than physical violence. Id. at 311 ("For instance, an offense under § 22.04 can be committed by intentional act without the use of physical force by putting poison or another harmful substance in a child’s food or drink."). Therefore, Andino-Ortega held the prior conviction was not for a "crime of violence" because physical violence was not an element of the statute, id., but the court did not have occasion to ask whether the crime involved serious potential risk of physical injury. See Moore, 635 F.3d at 776.
Nieto may be correct insofar as his crime may not be encompassed by the clause of § 4B1.2(a) concerned with elements of a crime, but he is mistaken in his assertion that the pared-down statute does not constitute a "crime of violence" under the residual clause of § 4B1.2(a), which asks whether the crime "involves conduct that presents a serious potential risk of physical injury to another." Moore, 635 F.3d at 776. Nieto’s indictment charged him with "intentionally and knowingly caus[ing] bodily injury to . . . a child 14 years of age or younger, by striking and hitting the [child] with his hand." This indictment pares down § 22.04(a) to "intentionally [or] knowingly . . . by act . . . causes to a child . . . bodily injury." Tex. Penal Code Ann. § 22.04(a). Because the pared-down statute "involves conduct that presents a serious potential risk of injury to another, " Moore, 635 F.3d at 776, the district court did not err in sentencing Nieto as a career offender.
Nieto asserts the district court erred in attributing 8 kilograms of cocaine and 300 pounds of marijuana to him for sentencing purposes. He uses the same arguments raised above in his sufficiency of the evidence challenge: in short, he asserts there is insufficient evidence that he was involved in the drug trafficking alleged in Count 3. Factual findings in sentencing are reviewed for clear error, and since there was sufficient evidence to convict Nieto for his role in the trafficking of these drugs, see Part II, supra, it was not clear error for the district court to find Nieto was involved in the conspiracy to distribute them.
Nieto asserts the district court made erroneous factual determinations that resulted in several enhancements and deprived him of reductions for: (1) having a minor role in the Aztecas; (2) causing bodily injury; (3) stealing controlled substances or firearms; and (4) using or threatening violence. As an initial matter, Nieto "does nothing beyond listing . . . points of error [and] offers no further arguments or explanation, " Reagan, 596 F.3d at 254–55, so these arguments are waived. Even if not waived, however, Nieto does not allege anything that could overcome the high barrier of clear error on the part of the district court. The district court could have easily found Nieto had more than a minor role because he was involved in the enforcement of Aztecas policies by robbing rivals or Aztecas working with rivals, such as Avila and Barboza-Rodriguez. On the issues of bodily injury and use of violence, Rodriguez testified to violence used against her in the robbery under Racketeering Act Four and Barboza-Rodriguez testified that Nieto assaulted him twice. Nieto also robbed drug dealers, at a minimum Avila, of their drugs. Therefore, the district court did not clearly err in making these factual determinations.
Lastly, Nieto contends his sentences (for concurrent 360-month terms of imprisonment) are substantively unreasonable because there was insufficient evidence at trial and because Calderon received a substantially shorter sentence (for a 121-month term of imprisonment). Because Nieto’s sentences are within his Guidelines range, they are entitled to a rebuttable presumption of reasonableness. Rodriguez, 660 F.3d at 233. Both of Nieto’s contentions lack merit. First, there was sufficient evidence at trial for Nieto’s convictions. See Part II, supra. Second, Calderon’s shorter sentence is inapposite because, unlike Nieto, he cooperated with the Government. See 18 U.S.C. § 3553(e).
Accordingly, the district court did not err in sentencing Nieto.
V
For these reasons, we AFFIRM.
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