United States v. Austin Nichols

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1254
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Austin Nichols,
lllllllllllllllllllllDefendant - Appellant.
___________________________
No. 22-1441
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Antonio Herrera,
lllllllllllllllllllllDefendant - Appellant.
___________________________
No. 22-1477
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Jacob Trujillo,
lllllllllllllllllllllDefendant - Appellant.
___________________________
No. 22-1524
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Mario Anthony Herrera,
lllllllllllllllllllllDefendant - Appellant.
___________________________
No. 22-2055
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Jose Miguel Pena,
lllllllllllllllllllllDefendant - Appellant.
____________
Appeals from United States District Court
for the Southern District of Iowa - Eastern
____________
-2-
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
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-
-3-
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
-4-
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.
-5-
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
-6-
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.
-7-
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 18 U.S.C. § 1959, the defendant’s base offense
level is the greater of twelve or “the offense level applicable to the underlying crime
or racketeering activity.” USSG § 2E1.3(a)(1), (2). Attempted murder is an
underlying “racketeering activity,” see 18 U.S.C. § 1961(1), but assault with a firearm
is not. See id.; United States v. Haynie, 8 F.4th 801, 805, 807 (8th Cir. 2021).
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 conduct of the two defendants in connection with the August
2015 shooting constituted attempted murder, and applied the base offense level under
USSG § 2A2.1.
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. Id. § 2A2.1(a)(1); see United States v. Comly, 998 F.3d
340, 343 (8th Cir. 2021).
Attempted first degree murder is the attempt to commit a “willful, deliberate,
malicious, and premeditated killing,” 18 U.S.C. § 1111(a), and the offense requires
a “specific intent to kill.” United States v. Greer, 57 F.4th 626, 629 (8th Cir. 2023).
“[S]hooting at a particular person, or a group of people, demonstrates a specific intent
to kill.” Id. A defendant who aids and abets an offense is punishable as a principal
-8-
who commits the underlying offense. 18 U.S.C. § 2. A defendant aids and abets a
crime “if (and only if) he (1) takes an affirmative act in furtherance of that offense,
(2) with the intent of facilitating the offense’s commission.” Rosemond v. United
States, 572 U.S. 65, 71 (2014). An aider and abettor of first degree murder must
share the “same intent” as the principal. United States v. Wilson, 665 F.2d 825, 830
n.6 (8th Cir. 1981).
Nichols and A. Herrera left a social gathering on the night in question with four
other people. The group departed after they were informed by telephone that a
member of a rival gang, the Latin Kings, had “disrespected” a Lowriders member.
The group drove to a house where they believed a Latin King member lived,
encountered the victim outside the home, and asked him if he was affiliated with a
gang. When the victim informed the group that he was not affiliated with a gang,
some unidentified members of the group declared themselves “king killers.” As the
victim retreated into the home and began to close the front door, someone in the
vehicle fired shots and caused three bullet holes in the door near where the victim was
standing. The evidence supports a finding that the principal perpetrator fired shots
at the victim and acted with a “specific intent to kill.” There was thus sufficient
evidence to find that the shooting was an attempted first degree murder. See Greer,
57 F.4th at 629.
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 member. Therefore,
-9-
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 USSG § 2A2.1(a)(1). He maintains that he did not aid
and abet attempted first degree murder by supplying ammunition that was used in the
shooting.
-10-
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
-11-
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.
Nichols also complains that the district court erred in finding him responsible
for conspiring to distribute cocaine based on the seizure of 100 grams of cocaine in
January 2018. The district court found that “[t]he location of the cocaine in the
backpack at his mother’s house with his fingerprints on the packaging” was “more
than sufficient” to “tie him” to a drug conspiracy. We see no clear error in that
finding. Nichols pleaded guilty to a racketeering conspiracy in which the pattern of
racketeering included drug trafficking. He does not dispute that members of the
Lowriders gang engaged in a years-long conspiracy to distribute cocaine. Nichols’s
fingerprints on a package of cocaine suitable for distribution, together with the
circumstantial evidence, is sufficient to support a finding that he was responsible.
-12-
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 USSG § 3B1.1(b). It is unnecessary to
consider this claim of procedural error, because the finding did not affect A. Herrera’s
total offense level under the grouping rules. For A. Herrera’s conviction on assault
with a dangerous weapon in aid of racketeering, the adjusted offense level of thirty-
three was based on the “underlying crime or racketeering activity” from the August
2015 shooting. See USSG §§ 2E1.3(a)(2), 2A2.1. A. Herrera’s racketeering
conspiracy offense carried a base offense level of nineteen. See USSG § 2E1.1. Even
with a three-level increase for role in the offense, the offense level for that group was
nine or more levels less serious than the offense level for the assault group, so it did
not affect his adjusted offense level. See USSG § 3D1.4; United States v. Omar, 567
F.3d 362, 366 (8th Cir. 2009).
A. Herrera next contends that his sentence is unreasonable under 18 U.S.C.
§ 3553(a). After calculating an advisory guideline range of 121 to 151 months’
imprisonment, the district court varied downward and imposed a term of 105 months.
We review the reasonableness of a sentence under a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). A district court abuses its
discretion by failing to consider a relevant factor, giving significant weight to an
irrelevant factor, or committing a clear error of judgment in weighing the relevant
factors. United States v. Jones, 507 F.3d 657, 659 (8th Cir. 2007).
A. Herrera contends that the district court abused its discretion by failing to
consider mitigating factors, including his presentence rehabilitation, and the fact that
-13-
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 court considered the factors under
§ 3553(a), emphasizing the seriousness of A. Herrera’s offenses, and the need for
adequate deterrence and protection of the public. The court stressed that A. Herrera
engaged in organized and violent criminal activity. In discussing a downward
variance, the court cited A. Herrera’s young age and “the fact that he has already been
punished to some extent for the same behavior” as the conduct relevant to his federal
convictions. The district court has wide latitude in weighing the factors under
§ 3553(a), and the mitigating circumstances cited by A. Herrera are not so compelling
to require an even greater downward variance. The district court did not abuse its
discretion.
V.
Trujillo first argues that the district court erred in calculating his base offense
level under USSG § 2A2.1(a)(1) for attempted first-degree murder. He maintains that
the evidence did not support a finding that he acted with premeditation in the July
2018 and June 2020 shootings. The district court found that “the facts in the
presentence report,” to which Trujillo did not object, showed that he attempted to
commit first degree murder in each shooting. We review this finding for clear error.
-14-
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 to 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
USSG § 2A2.1(b)(1)(B), if the victim of an attempted murder sustained a “serious
bodily injury,” the defendant’s base offense level should be increased by two levels.
A “serious bodily injury” is an “injury involving extreme physical pain or the
protracted impairment of a function of a bodily member, organ, or mental faculty; or
requiring medical intervention such as surgery, hospitalization, or physical
rehabilitation.” USSG § 1B1.1, comment. (n.1(M)). The district court found that the
victim in the June 2020 shooting “suffered serious bodily injury as a result of the
gunshot wound.”
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 USSG § 3B1.2(b).
He suggests that he was a low-ranking member in the Lowriders, and therefore less
-15-
culpable than higher ranking members in the gang’s violent activities. The court
found that although Trujillo was a low-level member of the Lowriders, his criminal
conduct was “high-level,” and he was “deeply involved” in the gang’s violence. The
court cited Trujillo’s role as the shooter in July 2018 and June 2020, and declined to
decrease the offense level for a mitigating role. We review the district court’s finding
for clear error. United States v. Brown, 929 F.3d 1030, 1041 (8th Cir. 2019).
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,
USSG § 2D1.1(a)(5), (c)(4), a two-level increase for involving a juvenile in the
offense, id. § 2D1.1(b)(16)(B)(i), and a four-level increase for role in the offense,
USSG § 3B1.1(a), for a total offense level of thirty-eight. The court made no finding
that M. Herrera’s conduct constituted attempted murder, and did not increase the
-16-
offense level based on the attempted murder cross-reference. Although the
presentence report recommended calculating the offense level based on two groups
of closely-related counts that would have included an attempted murder finding, the
district court disagreed: “I don’t believe the grouping is correct here, and so I’m not
applying the two levels for the grouping.”
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 saw 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
information at sentencing, regardless of its admissibility under the rules of evidence,
if the information “has sufficient indicia of reliability to support its probable
accuracy.” USSG § 6A1.3(a). We have said that grand jury testimony has an indicia
-17-
of reliability because it is given under oath and under penalty of perjury. United
States v. Wallace, 408 F.3d 1046, 1048 (8th Cir. 2005) (per curiam).
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
accept 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 prior 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 18 U.S.C. § 3583(d)(1)-(3). M.
-18-
Herrera was convicted of a racketeering conspiracy with a leadership role in the
Lowriders gang, and the condition is a reasonable measure taken to deter recidivism
and to protect the public. The special condition does not unduly restrict a liberty
interest of M. Herrera’s. The court did not ban all contact with family members who
are involved with the gang; M. Herrera may contact these family members with prior
approval of the probation office that would allow for appropriate conditions or
supervision. A special condition requiring pre-approval to contact family members
is not unconstitutional where circumstances warrant the precaution. E.g., United
States v. Hobbs, 710 F.3d 850, 854 (8th Cir. 2013). Here, the district court
reasonably concluded that unfettered contact with gang members who are related to
M. Herrera would pose an unacceptable risk of reversion into a former crime-
inducing lifestyle. See United States v. Romig, 933 F.3d 1004, 1006-07 (8th Cir.
2019).
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] retains and
exercises ultimate responsibility.” United States v. Kerr, 472 F.3d 517, 523 (8th Cir.
2006). Herrera relies on United States v. Kent, 209 F.3d 1073 (8th Cir. 2000), where
a district court “explicitly stated it hoped it would not be ‘riding herd’ in the
probation officer’s decision,” id. at 1079, but the district court here made no
statement indicating that it was “relinquishing final authority” over determinations
about the special condition. See Kerr, 472 F.3d at 524. There was no improper
delegation to the probation officer.
VII.
Pena’s lone argument on appeal is that the district court erred in denying him
a three-level decrease for acceptance of responsibility. See USSG § 3E1.1(b). The
district court found that because Pena gave notice of his intent to plead guilty after
-19-
the court’s scheduling deadline, the court continued to prepare for Pena’s trial and
could not efficiently allocate its resources. We review the district court’s decision for
clear error. United States v. Jordan, 877 F.3d 391, 393 (8th Cir. 2017).
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 § 3E1.1(b).
The commentary to the sentencing guidelines provides that a district court
“should grant” a motion by the government under § 3E1.1(b) in certain
circumstances. A motion should be granted if the court determines that the defendant
has assisted authorities by “timely notifying authorities of his intention to enter a plea
of guilty, thereby permitting the government to avoid preparing for trial and
permitting the government and the court to allocate their resources efficiently.” Id.
§ 3E1.1, comment. (n.6). Whatever the government’s assessment about its ability to
allocate resources, the court determined that Pena’s notice after the scheduling
deadline did not allow the court to allocate its resources efficiently. We see no basis
to conclude that the court’s assessment of its own resource allocation was clearly
erroneous, so there was no procedural error.
* * *
-20-
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.
______________________________
-21-