Texas Injury to a Child is a Career Offender COV under Modified Categorical Approach
The panel finds that Injury to a Child in violation of Texas
Penal Code § 22.04(a) is a “crime of violence” under the U.S.S.G. § 4B1.2(a)(2)
residual clause, so Nieto was properly sentenced as a career offender. The panel used the modified categorical
approach to determine whether Nieto’s crime involved conduct that presented a
serious potential risk of physical injury to another. Acknowledging that a prior conviction under §
22.04 does not constitute a “crime of violence” under U.S.S.G. § 2L1.2 because
that definition requires force to be an element of the statute of conviction,
the panel found that intentionally or knowingly causing a child bodily injury
by an act—which is
what Nieto’s indictment essentially charged—involves conduct that presents a serious potential
risk of injury to another.
The panel also held that the evidence was sufficient to
convict the Barrio Azteca defendants on RICO substantive and conspiracy charges
as well as conspiracy to possess with intent to distribute controlled
substances, and that the district court did not err by “conducting ex parte
interviews with the acquiescence of counsel to evaluate intrinsic influence[,]”
namely jurors’ anxiety about the case and their safety concerns. The district court dismissed without
objection the one juror who had the extrinsic influence of her husband
contacting a friend who then contacted the case officer out of concern for the
juror’s safety.
Labels: Career Offender, COV, Guidelines, Juries
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