United States v. Miguel Nieto, 721 F.3d 357

Appellants Miguel Nieto, Ramon Morales, Carlos Hernandez, and Santos Almanza were convicted on RICO counts and a drug conspiracy count arising from their membership in the Barrio Aztecas, a gang operating in Midland-Odessa.
The indictment charged three counts: racketeering under §1962(c), RICO conspiracy under §1962(d), and conspiracy to possess with intent to distribute controlled substances under 21 U.S.C. §846; Morales was convicted on Count 3 only.
The Aztecas exercised control over drug distribution by enforcing a cuota, punishing nonpaying or rival-dealing members, and sharing robbery proceeds to support members in prison.
Racketeering Act Three involved an attempted and aborted robbery of a non-Aztecas dealer; Racketeering Act Four involved a second robbery with the same night; Racketeering Act Nine involved aggravated robbery of a rival dealer Castrejon; Racketeering Act Ten concerned drug distribution and related violence and searches by police.
Evidence showed multiple witnesses linking Nieto and Hernandez to Aztecas membership and to the predicate acts, supporting the pattern of racketeering and conspiracy.
During trial, Juror D.D. expressed safety concerns; the judge conducted ex parte juror interviews with consent of counsel, dismissed Juror D.D., and replaced her with an alternate, after which verdicts were returned.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for Count 1 (RICO).	Nieto and Hernandez were Aztecas; predicate acts tied to gang goals.	Robberies may have been personal, not Aztecas-driven.	Yes, sufficient evidence tying acts to Aztecas for RICO.
Sufficiency of evidence for Count 3 (drug conspiracy).	Multiple witnesses connected Nieto/Hernandez to conspiracy and Aztecas drug activity.	Insufficient direct link to conspiracy; acts may be personal.	Yes, sufficient evidence of conspiracy tied to Aztecas.
Sufficiency of evidence for Count 2 (RICO conspiracy).	Two or more agreed to pursue the Aztecas’ criminal objective; participation implied by conduct.	Lack of explicit agreement to all aspects of substantive offenses.	Yes, two or more agreed to pursue same criminal objective; conspiracy proven.
denial of mistrial due to ex parte juror interviews.	Procedures were appropriate and within the court’s discretion.	Ex parte juror interviews were improper and prejudicial.	No abuse of discretion; district court properly managed potential bias.
Nieto's career-offender sentence under §4B1.2 residual clause.	Prior Texas Injury to a Child conviction qualifies as a crime of violence.	Residual clause may be misapplied or the predicate does not meet violence criteria.	The crime qualifies under the residual clause; sentence affirmed.

United States v. Posada-Rios, 158 F.3d 832 (5th Cir. 1998) (establishes elements of a RICO enterprise and pattern)
Salinas v. United States, 522 U.S. 52 (U.S. 1997) (RICO conspiracy extends to collaborators without overt acts)
United States v. Turner, 319 F.3d 716 (5th Cir. 2003) (elements of conspiracy to possess with intent to distribute)
United States v. Delgado, 401 F.3d 290 (5th Cir. 2005) (circumstantial evidence can prove conspiracy to commit racketeering)
United States v. Reyes, 645 F.2d 285 (5th Cir. 1981) (courts may rely on ex parte juror interviews with counsel's acquiescence)
Gall v. United States, 552 U.S. 38 (U.S. 2007) (procedural reasonableness and 18 U.S.C. § 3553(a) factors)
Moore, 635 F.3d 774 (5th Cir. 2011) (residual clause requires serious potential risk of physical injury)
Stoker, 706 F.3d 643 (5th Cir. 2013) (use of charged conduct in assessing crime-of-violence predicate)
Andino-Ortega, 608 F.3d 305 (5th Cir. 2010) (Texas §22.04 crime and categorization under related guidelines)