United States v. Nichols

76 F.4th 1046

UNITED STATES of America, Plaintiff - Appellee, v. Austin NICHOLS, Defendant - Appellant.

United States of America, Plaintiff - Appellee, v. Antonio Herrera, Defendant - Appellant.

United States of America, Plaintiff - Appellee, v. Jacob Trujillo, Defendant - Appellant.

United States of America, Plaintiff - Appellee, v. Mario Anthony Herrera, Defendant - Appellant.

United States of America, Plaintiff - Appellee, v. Jose Miguel Pena, Defendant - Appellant.

No. 22-1254

No. 22-1441

No. 22-1477

No. 22-1524

No. 22-2055

United States Court of Appeals, Eighth Circuit

Submitted: February 13, 2023

Filed: August 9, 2023

Appeals from United States District Court for the Southern District of Iowa - Eastern

Counsel who represented appellant Austin Nichols, was Gina Messamer, of Des Moines, IA.

Counsel who represented appellant Antonio Herrera, was Elizabeth Ann Araguas, of Cedar Rapids, IA.

Counsel who represented appellant Jacob Trujillo, was John D. Jacobsen, of Cedar Rapids, IA.

Counsel who represented appellant Mario Herrera, was Raphael M. Scheetz, of Cedar Rapids, IA.

Counsel who represented appellant Jose Pena, was Rockne Ole Cole, of Ossian, IA.

Counsel who represented the appellee was William Reiser Ripley, AUSA, of Davenport, IA.

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 activities 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.

I.

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 the 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 and 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 that 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.

August 2015

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 drove 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.

*

A grand jury charged Nichols, A. Herrera, Trujillo, Pena, and M. Herrera. Each pleaded guilty to a racketeering conspiracy. See 18 U.S.C. § 1962(d). Nichols and A. Herrera also pleaded guilty to one count of assault with a dangerous weapon in aid of racketeering for their involvement in the August 2015 shooting. See id. §§ 1959(a)(3), 2. Trujillo pleaded guilty to two counts of attempted murder in aid of racketeering for his role in the July 2018 and June 2020 shootings, and one count of using and carrying a firearm during and in relation to a crime of violence for the July 2018 shooting. See id. §§ 1959(a)(5), 924(c)(1)(A)(iii). M. Herrera pleaded guilty to conspiracy to distribute a controlled substance, based in part on his possession of two kilogram of cocaine that were seized during a traffic stop in October 2018. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(D), 846. Pena pleaded guilty to one count of assault with a dangerous weapon in aid of racketeering, see 18 U.S.C. § 1959(a)(3), and one count of unlawful possession of a firearm as a felon, see id. §§ 922(g)(1).

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 USSG § 3D1.4. We discuss the details of the calculations only as necessary to resolve the specific issues raised on appeal.

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 offense levels. When a defendant is convicted of a violent crime in aid of racketeering activity under ...