Tuesday, October 22, 2013

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 actwhich is what Nieto’s indictment essentially chargedinvolves 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. 

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