Unitеd States of America v. Austin Nichols; United States of America v. Antonio Herrera; United States of America v. Jacob Trujillo; United States of America v. Mario Anthony Herrera; United States of America v. Jose Miguel Pena
No. 22-1254, No. 22-1441, No. 22-1477, No. 22-1524, No. 22-2055
United States Court of Appeals For the Eighth Circuit
August 9, 2023
Submitted: February 13, 2023;
Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
Appeals from United States District Court for the Southern District of Iowa - Eastern
Submitted: February 13, 2023
Filed: August 9, 2023
Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
COLLOTON, Circuit Judge.
These consolidated appeals arise from a multi-defendant criminal case involving the Lowriders street gang in Davenport, Iowa. All five appellants pleaded guilty to a charge of racketeering conspiracy and other charges related to their аctivities with the Lowriders. The district court sentenced them to various terms of imprisonment. The appeals concern only the sentences imposed. We affirm the judgments for Antonio Herrera, Jacob Trujillo, Mario Herrera, and Jose Pena. We vacate the sentence of Austin Nichols, and remand his case for resentencing.
The Lowriders street gang operated in eastern Iowa. Many members, including the appellants, lived in Davenport. Between 2013 and 2020, members of the Lowriders participated in shootings and assaults targeting members of rival gangs in the Davenport area. In 2014, the gang began to distribute cocaine and marijuana.
According to thе evidence in these cases, the Lowriders gang was organized into a hierarchical structure: (1) high-ranking members sold cocaine and supplied marijuana to low-ranking members, directed low-ranking members to carry out violence, and organized weekly meetings; (2) mid-ranking members recruited new members, helped high-ranking members organize meetings, and engaged in more violence and drug distribution than low-ranking members; and (3) low-ranking members sold marijuana and engaged in violence with rival gang members. Low-ranking members were instructed that when they saw rival gang members in public, they should initiate fights or shoot at the rival members.
Mario Herrera was a high-ranking member who began distributing cocaine and marijuana in 2014. He also directed the low-ranking members to engage in violence against other gangs. Lowriders contacted M. Herrera about disputes between members, and informed him when they saw rival gang members in public. M. Herrera also ran weekly meetings to discuss whether gang members were posting gang-related information on social media, to assign jobs to members, and to collect dues payments used to purchase firearms.
Antonio Herrera was a mid-ranking member. M. Herrera communicated with A. Herrera about how to lead lower-ranking gang members. A. Herrera also organized weekly meetings when M. Herrera was unavailable.
Jacob Trujillo аnd Jose Pena were low-ranking members. They shot at rival gang members at the direction of high-ranking Lowriders, but did not exercise any supervisory control or authority over the gang‘s activities.
Austin Nichols (M. Herrera‘s brother), disputes the level of his involvement in the Lowriders, but acknowledges that he was a member of the gang. In 2018, Nichols was tasked with organizing weekly meetings, but when he failed to do so, the responsibility fell to A. Herrera.
Several shootings figured prominently in the charges and at sentencing in these cases:
December 2013
On December 28, 2013, M. Herrera sent a text message to Nichols asking what time he finished work. When Nichols answered that he would finish around 7:30 p.m., M. Herrera responded with a request for Nichols to supply a box of ammunition: “Alrite, I need u to stop by ur crib and get tha whole box.” Nichols messaged that he would “go down there after we off but the 45 ones right,” and M. Herrera responded “yea.” Nichols then supplied M. Herrera with a box of ammunition.
At approximately 3:00 a.m. on December 29, 2013, a Lowriders member, Salvador Zavala, shot at two members of a rival gang near Eighth Street and Sturdevant Street in Davenport. When Davenport police officers responded to the scene, they stopped a vehicle in the area that carried Zavala, M. Herrera, and two others. In the vehicle, officers found a box of .45 caliber ammunition thаt matched the caliber of shell casings at the shooting scene. They later found a .45 caliber pistol near the vehicle. Nichols‘s fingerprint was on the ammunition box recovered from the vehicle.
In August 2015, A. Herrera, Nichols, and four others were attending a bonfire in Davenport when they were informed that a rival Latin King gang member had “disrespected” a Lowriders member. The group of six left the bonfire and drove to the residence of a purported Latin King member in Davenport. The group saw a juvenile male sitting on the front porch; someone asked whether the juvenile was a gang member, and someone stated “king killers.” The juvenile said he was not in a gang and stepped inside the front door. As he began to close the door, shots fired from the vehicle left three bullet holes in the door.
After the shooting, Davenport police officers stopped the vehicle involved in the shooting. The officers observed A. Herrera in the driver‘s seat and Nichols in the backseat with three others. Officers found two spent shell casings in the backseat.
January 2018
On January 26, 2018, a Lowriders member was shot and killed by a member of a rival gang on Warren Street in Davenport. After the shooting, M. Herrera held a meeting and stated that he wanted a rival gang member killed in retaliation. On January 28, two members of the Lowriders were driving in Davenport when they saw a rival gang member. The Lowriders rammed their vehicle into the rival member‘s vehicle in an effort to kill him. The Lowriders also shot at the vehicle. After the collision, passengers in both vehicles fled the scene.
To investigate the incident, police officers searched the residence of the mother of M. Herrera and Nichols on Warren Street. In the basement, the officers found a backpack containing a package of 100 grams of cocaine on top of a package containing one pound of marijuana. The fingerprints of M. Herrera and Nichols were on the drug packaging.
July 2018
In July 2018, Trujillo and another Lowriders member drоve past the residence of a rival gang member in Davenport. When they saw the rival member on the porch, they turned around and parked across the street from the residence. The two men exited the vehicle and walked into the street. The rival member stepped off the porch and walked toward Trujillo. After the rivals argued in the street for a few minutes, Trujillo returned to his vehicle, retrieved a firearm, and fired at least two shots at the rival member. The shots missed the rival gang member but struck a different man in the shoulder.
June 2020
In June 2020, Trujillo was a passenger in a vehicle driving in Davenport when he recognized a person in the vehicle next to him as someone who had disrespected a Lowriders member. Trujillo‘s vehicle pulled alongside the other vehicle, and Trujillo shot one of the occupants in his forearm and hip. The victim was taken to a hospital, where a doctor determined that the victim suffered two entrance wounds, but no exit wounds. The victim was later referred to a surgeon for removal of the bullets.
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A grand jury charged Nichols, A. Herrera, Trujillo, Pena, and M. Herrera. Each pleaded guilty to a racketeering conspiracy. See
The district court sentenced the appellants to terms of imprisonment as follows: Nichols, 120 months; A. Herrera, 105 months; Trujillo, 240 months; M. Herrera, 250 months; Pena, 120 months. The calculations under the sentencing guidelines were complicated, sometimes involving multiple “groups” of closely-related counts, which were then combined to reach a total offense level under
II.
Nichols and A. Herrera first argue that the district court erred by treating assault with a dangerous weapon as an underlying racketeering activity when it calculated their base offensе levels. When a defendant is convicted of a violent crime in aid of racketeering activity under
The district court applied an offense level of thirty-three based on the “underlying crime or racketeering activity” from the August 2015 shooting. But the district court did not commit the asserted error. The court cited attempted murder, not assault with a dangerous weapon, as the underlying racketeering activity. The court determined that the cоnduct of the two defendants in connection with the August 2015 shooting constituted attempted murder, and applied the base offense level under
Nichols and A. Herrera next argue that the district court erred in applying the attempted murder cross reference, because they did not aid and abet attempted first degree murder in the August 2015 shooting. The guideline applies where the evidence shows that “the object of the offense would have constituted first degree murder” if a victim had died.
Attempted first degree murder is the attempt to commit a “willful, deliberate, malicious, and premeditated killing,”
On aiding and abetting, the evidence supports the district court‘s finding that A. Herrera took an affirmative act in furtherance of the offense with the requisite intent. After the shooting, a police officer stopped the getaway car and found A. Herrera driving. Serving as a “getaway driver” to flee the scene of an offense is an affirmative act in furtherance of the offense. See United States v. Taylor, 322 F.3d 1209, 1211-12 (9th Cir. 2003); see also United States v. Daniel, 887 F.3d 350, 356 (8th Cir. 2018). The evidence also supported the district court‘s inference that A. Herrera shared the shooter‘s specific intent to kill when he knowingly served as driver for a shooter who sought to retaliate against a rival gang mеmber. Therefore, the court did not err in finding that A. Herrera aided and abetted attempted first degree murder in the August 2015 shooting.
The evidence, however, is insufficient to support the district court‘s finding that Nichols aided and abetted attempted first degree murder. Nichols was a backseat passenger in the vehicle from which shots were fired. The government contends that Nichols aided and abetted attempted first degree murder because he “got in a car with a gun and went looking for Latin Kings.” But a defendant‘s presence at the scene of a crime or association with persons engaged in illegal activity is not sufficient to establish that he aided and abetted the crime. E.g., United States v. Larson, 760 F.2d 852, 858 (8th Cir. 1985). Rather, the defendant must affirmatively act in a manner “which at least encourages the perpetrator.” United States v. Jourdain, 433 F.3d 652, 656 (8th Cir. 2006) (quoting United States v. Thomas, 469 F.2d 145, 147 (8th Cir. 1972)). So supplying a firearm used in a shooting, see United States v. Darden, 70 F.3d 1507, 1545 (8th Cir. 1995), or transporting a shooter to or from the scene, see Taylor, 322 F.3d at 1211-12, may suffice to establish aiding and abetting. But there is insufficient evidence here that Nichols‘s act of riding in the back seat of a vehicle to the scene of the crime facilitated the offense. See State ex rel. Juv. Dep‘t v. Holloway, 795 P.2d 589, 591-92 (Or. Ct. App. 1990). Accordingly, the government did not sustain its burden to show that Nichols aided and abetted attempted first degree murder in the August 2015 shooting.
III.
Nichols argues that the district court also erred in applying the attempted murder cross reference with respect to a different calculation concerning the December 2013 shooting. See
The presentence report recommended application of the cross-reference on the ground that Nichols provided ammunition to M. Herrera, and M. Herrera gave the ammunition to Zavala for use in a gang-related shooting. At sentencing, the government argued that because the Lowriders engaged in retaliatory shootings against rival gang members, Nichols “knew that at the end of that road there was going to be a shooting.” The district court did not expressly find that Nichols knew the ammunition would be used in the December 2013 shooting, but concluded that the evidence “shows an attempted murder,” and that the guidelines “were appropriately applied.” The district court did not specify whether its reference to “an attempted murder” meant the December 2013 shooting by Zavala, the August 2015 drive-by shooting discussed above, or both.
According to the record, the shooting occurred after M. Herrera sent a text message to Lowriders member Zavala, informing him that the tires of M. Herrera‘s vehicles were popped. Zavala asked “[w]hat‘s that dude name,” and M. Herrera responded with the name of a rival Latin King gang member.
On the same day, M. Herrera sent a text message asking Nichols to supply ammunition. Nichols indicated that he would do so after he finished work around 7:30 p.m. Nichols then brought the ammunition to M. Herrera. Several hours later, at approximately 2:45 a.m. on December 29, 2013, M. Herrera called Zavala. Four minutes later, Zavala called M. Herrera. At approximately 2:52 a.m., the ammunition supplied by Nichols to M. Herrera was used by Zavala when he shot at two rival Latin King gang members. One of the Latin King members was the man identified by M. Herrera in his December 28 text message to Zavala. Near the shooting, police officers stopped a vehicle that carried Zavala, M. Herrera, and two others. The evidence thus supports a finding that Zavala acted with the specific intent to kill when he shot at the victims. See Greer, 57 F.4th at 629.
As to Nichols, however, we conclude that the evidence is insufficient to support the district court‘s finding that Nichols took an affirmative act in furtherance of the offense with the requisite intent. The government was required to establish that Nichols shared Zavala‘s intent. In other words, the validity of the finding rests on whether the government established that Nichols knew before the shooting that the “objective of his actions” in supplying ammunition to M. Herrera was aiding Zavala in the attempted murder. See Wilson, 665 F.2d at 830.
The district court did not find that Nichols knew of a plan to retaliate, or that Nichols knew that M. Herrera would supply the ammunition to be used in a shooting. Nor did the court find that Nichols knew that Zavala intended to kill someone. There is no evidence that M. Herrera told Nichols the purpose for which he wanted ammunition. In short, the evidence does not show that when Nichols provided ammunition to M. Herrera, Nichols knew that Zavala intended to use the ammunition to kill the victims in the December 2013 shooting. Circumstantial evidence about the operation of the Lowriders gang is insufficient to establish that Nichols acted with a specific intent to kill Zavala‘s victims when he supplied ammunition to M. Herrera on this particular occasion. Therefore, the government did not sustain its burden to show that Nichols aided and abetted attempted first degree murder in the December 2013 shooting.
In light of our conclusions, we will vacate Nichols‘s sentence and remand for resentencing. Because the sentencing guidelines must be recalculated, we do not address the issue of role in the offense at this time.
IV.
A. Herrera argues that the district court erred in applying a three-level increase for aggravating role in the offense. See
A. Herrera next contends that his sentence is unreasonable under
A. Herrera contends that the district court abused its discretion by failing to consider mitigating factors, including his presentence rehabilitation, and the fact that he felt pressured to join the Lowriders at a young age because many of his relatives were members of the gang. But the district court heard argument and allocution on A. Herrera‘s rehabilitation and familial ties to members of the Lowriders, and “we may presume that the court considered those factors.” United States v. Keating, 579 F.3d 891, 893 (8th Cir. 2009).
A. Herrera also suggests that the district court incorrectly weighed the sentencing factors. He argues that when the court considered his criminal history, it should have varied further downward based on his time spent in state prison, on parole, and in pretrial detention for an Iowa conviction that was related to his conduct in the August 2015 shooting. At sentencing, the cоurt considered the factors
V.
Trujillo first argues that the district court erred in calculating his base offense level under
An offender acts with premeditation when his conduct is the result of planning or deliberation. United States v. Haskell, 468 F.3d 1064, 1074 (8th Cir. 2006). Premeditation need not exist for a particular length of time, Greer, 57 F.4th at 629, and may be inferred from the defendant‘s actions. See United States v. Slader, 791 F.2d 655, 657-58 (8th Cir. 1986). In the July 2018 shooting, Trujillo returned tо his vehicle after an argument, retrieved a firearm, and shot at a rival gang member. In the June 2020 shooting, Trujillo recognized someone who had disrespected a Lowriders member, pulled up alongside him in a vehicle, and shot at him. The district court did not clearly err in finding that Trujillo‘s deliberate actions before the shootings demonstrated that he acted with the requisite premeditation. Greer, 57 F.4th at 629.
Trujillo next argues that the district court erred in applying an increase to his base offense level for causing serious bodily injury in the June 2020 shooting. Under
The victim in the June 2020 shooting was shot in the forearm and hip, and the bullets required surgical removal. Given the nature of the gunshot wounds and the medical intervention required, the district court did not clearly err in finding that the victim sustained a serious bodily injury.
Trujillo also argues that the district court clearly erred in finding that he was not a “minor participant” entitled to a two-level decrease under
To prove entitlement to the downward adjustment, Trujillo must show not only that he is a minor participant by comparison with other participants, but also by comparison with the offense for which he was held accountable. United States v. Bandstra, 999 F.3d 1099, 1102 (8th Cir. 2021). When a defendant is sentenced for a racketeering conspiracy conviction, his role in the offense is assessed based on his overall role in the racketeering enterprise. United States v. Wynn, 37 F.4th 63, 68 (2d Cir. 2022); see United States v. Coon, 187 F.3d 888, 899 (8th Cir. 1999). Given Trujillo‘s culpability with respect to the offenses for which he was held accountable, and the district court‘s finding that he was deeply involved in the gang‘s violent activities, the district court did not clearly err in finding that he was not a minor participant.
VI.
M. Herrera first argues that the district court erred in applying the attempted murder cross-reference for the January 2018 shooting when it calculated his base offense level. There is no merit to this contention, because the district court did not apply the attempted murder cross-reference. The court determined a total offense level based solely on his drug conspiracy offense: a base offense level of thirty-two,
M. Herrera next argues that the district court clearly erred in determining the drug quantity for which he was accountable. His principal complaint is that the court relied on grand jury testimony from a cooperating witness, S.T., who attributed 28.5 kilograms of cocaine to M. Herrera. S.T. explained that M. Herrera gave her an ounce of cocaine every other day for about three years, and that she sаw him in possession of between thirteen and fifteen kilograms of cocaine in a garage during 2017.
The district court determined that the grand jury testimony concerning M. Herrera‘s involvement in drug distribution was “reliable and consistent.” Herrera contends that the court failed to make a specific finding on whether S.T. saw M. Herrera in possession of the thirteen kilograms of cocaine in a garage. Although there is no specific finding about the garage, we conclude that the findings are adequate. The court concluded that S.T.‘s grand jury testimony supported the drug quantity determination in the presentence report, which included the thirteen kilograms that S.T. saw in the garage.
M. Herrera also urges that S.T.‘s grand jury testimony was unreliable because it was inconsistent, uncorroborated, and contradicted by testimony of another witness regarding the appearance of the garage walls. A district court may consider relevant
The district court did not clearly err in finding that S.T.‘s testimony was sufficiently reliable. S.T.‘s testimony was corroborated by testimony from other witnesses who saw M. Herrera supply cocaine, and by seizures from the defendant of 100 grams in January 2018, and 2 kilograms in October 2018. See United States v. Angeles-Moctezuma, 927 F.3d 1033, 1037 (8th Cir. 2019). The alleged inconsistencies in S.T.‘s testimony are not so substantial as to compel a finding that her testimony was unreliable. Although S.T. initially testified that she saw thirteen to fifteen ounces of cocaine, she corrected herself to say that she saw thirteen to fifteen kilograms of cocaine, and explained that the drug packaging indicated the larger quantity. Herrera criticizes as inaccurate her statement that the garage with cocaine was located on “14th and Warren,” but the district court reasonably could аccept S.T.‘s explanation that she meant the 1400 block of Warren Street. While there was a discrepancy between S.T. and a defense witness about whether the walls of the garage were covered by drywall, the district court did not clearly err in finding that the dispute was insufficient to undermine S.T.‘s credibility on drug quantity. The court did not clearly err in making its drug quantity determination.
M. Herrera also challenges a condition of supervised release that limits his contact with members of the Lowriders gang. The condition provides that he “shall not knowingly associate or communicate with any member of the Lowriders criminal street gang, or any other criminal street gang without the priоr approval of the probation office.” M. Herrera complains that the condition infringes on a liberty interest in associating with family members who are members of the gang.
The district court determined that “[t]he anti-gang provision here is very appropriate especially given the facts of this case.” The condition is reasonably related to the pertinent sentencing factors. See
M. Herrera also asserts that the district court impermissibly delegated authority to the probation office when it imposed the special condition. A district court may “delegate limited authority to non-judicial officials as long as the [court]
VII.
Pena‘s lone argument on appeаl is that the district court erred in denying him a three-level decrease for acceptance of responsibility. See
The district court set a deadline of January 7, 2022, for Pena to notify the court of an intent to plead guilty. On January 7, Pena notified the court of his intention to plead guilty to counts one, fourteen, thirty-one, and thirty-two of the superseding indictment, and to proceed to trial on count thirty-three. On January 13, 2022, after the government agreed to dismiss counts thirty-two and thirty-three, Pena moved to withdraw his plea, and notified the district court of his intention to plead guilty to counts one, fourteen, and thirty-one of the superseding indictment. Although Pena notified the court after the deadline, the government moved for a three-level reduction under
The commentary to the sentencing guidelines provides that a district court “should grant” a motion by the government under
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For these reasons, we affirm the judgments of the district court as to Antonio Herrera, Jacob Trujillo, Mario Herrera, and Jose Pena. We vacate the sentence imposed on Austin Nichols, and remand his case for resentencing.