REVISED JULY 28, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20689

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

TYRONE MAPLETOFT WILLIAMS,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before KING, WIENER, and DENNIS, Circuit Judges.

KING, Circuit Judge:

In May 2003, Tyrone Mapletoft Williams, a commercial truck driver,

transported 74 unlawful aliens from Harlingen, Texas, to Victoria, Texas.

During the trip, he left the aliens locked in the trailer of his tractor–trailer

without activating the trailer’s air conditioning unit; as a result, 19 aliens died

of dehydration, hyperthermia, suffocation, and mechanical asphyxia. Williams

was convicted of 39 separate counts arising out of that trip. For the 20 counts

that were capital charges, the Federal Death Penalty Act contemplated that the

jury would determine the appropriate sentence if itfirstfound a threshold intent

that would justify imposing a sentence of death. The applicable threshold intent

United States Court of Appeals

Fifth Circuit

F I L E D

June 24, 2010

Lyle W. Cayce

Clerk
No. 07-20689

2

required that Williams have engaged in an “act of violence” in committing the

capital offenses. Following the district court’s instructions, the jury found that

Williams had committed the requisite act of violence but that he should be

sentenced to life imprisonment. We conclude that the district court erred in its

definition of act of violence and that, under the correct definition, the evidence

at trial cannot support a finding that the requisite threshold intent was met.

While we affirm Williams’s convictions and his sentences to terms of years, we

vacate his life sentences and remand for resentencing by the district court.

I. BACKGROUND

A. Factual Background

The tragedy giving rise to this prosecution originated in a South Texas

alien-smuggling operation headed by Karla Chavez–Joya (Chavez). In 2003,

Abelardo Flores, Jr., and his assistant, Fredy Garcia–Tobar (Garcia), were

working for Chavez in the smuggling operation. Flores and Garcia were tasked

with recruiting and paying truck drivers to transport unlawful aliens through

border checkpoints. They placed a premium on truck drivers who were nonHispanic and whose trucks were licensed in states other than Texas. Such

drivers, they believed, were less likely to be scrutinized at checkpoints.

Tyrone Mapletoft Williams, a commercial truck driver, satisfied both of

those criteria: he is black, and his tractor–trailer was licensed in New York.

Flores and Garcia approached Williams in late April or early May 2003 in

McAllen, Texas; Williams agreed to transport aliens from Harlingen, Texas,

through the checkpoint at Sarita, Texas, and to deliver the aliens to other

members of the smuggling operation in Robstown, Texas, for $6,500. Williams

drove to the loading site in Harlingen, where he remained in the cab of his truck

as other members ofthe operation loaded 60 aliens into the trailer and closed the

trailer doors. After Williams cleared the Sarita checkpoint, he called Flores to

provide an update. Williams then continued driving to Robstown, where the
No. 07-20689

3

aliens were unloaded.

About a week later, Williams contacted Flores from New York about

performing another smuggling trip. They agreed in advance on payment of

$7,500. Before driving to Harlingen, Williams, who was accompanied by a

female companion, Fatima Holloway, had to deliver a shipment of milk to San

Antonio, Texas. Williams’s trailer was insulated and equipped with a

refrigeration unit that maintained the milk shipment at 35 degrees Fahrenheit

from New York; the trailer’s refrigeration unit could operate even when the

truck was turned off and even after being detached from the tractor portion of

the truck. Williams delivered the milk and drove to Harlingen on May 13, 2003,

where Flores paid Williams the $7,500 in advance. Flores offered to refuel

Williams’s truck before the trip, but Williams declined because he had enough

fuel.

Sometime after 10:00 p.m., Williams and Holloway drove to the loading

site, where Williams backed up the truck and turned off the headlights.

Williams and Holloway remained in the cab as other members of the operation

loaded 74 aliens into the trailer and closed the doors, which could not be opened

from inside the trailer. Although Flores had advised Williams to set the trailer’s

temperature at 55 degrees Fahrenheit for the approximately 90-minute trip, at

no point did Williams turn on the refrigeration unit. At the Sarita checkpoint,

Williams told an agent that the truck was empty and that he was driving to

Houston to pick up a load of produce; the agent sent Williams through the

checkpoint withoutinspecting the trailer because the trailer’s refrigeration unit

was turned off. Two of the operation’s members who had been following

Williams did not experience such luck at the Sarita checkpoint. They were

supposed to collect the aliens at the drop-off site in Robstown, but they were

each detained at the checkpoint for 30–60 minutes. When he learned of this,

Flores directed Williams to continue past Robstown and proceed with the aliens
No. 07-20689

4

to Houston—over 200 miles past Robstown.

The aliens had remained silent through the Sarita checkpoint, but some

time later, Holloway heard banging on the walls of the trailer. Although

Williams pretended not to hear the banging at first, he admitted to Holloway

that he heard it when it became louder. According to an eyewitness who was

driving near Williams’s truck, human arms were sticking out through holes in

the trailer where lights had been, waving in distress. After Williams had passed

the Sarita checkpoint, he pulled over in Riviera, Texas, in response to being

signaled by another truck driver. After seeing the damage the aliens were

causing to his trailer, Williams began cursing angrily and contacted Flores to

demand more money. Williams also ignored Holloway’s pleas to let the aliens

out of the trailer. He resumed driving and stopped in Refugio, Texas, shortly

after midnight, where he purchased several bottles of water. Williams again

resumed driving and stopped at a truck stop near Victoria, Texas, shortly after

1:30 a.m. He made several trips inside to purchase water, which he placed into

holes that had been made in the trailer; he then instructed Holloway to purchase

water as well. On the last of these trips, Holloway saw a shirtless Hispanic male

enter the truck stop and begin speaking to the clerk in Spanish. The clerk called

the police, and Holloway walked back outside. As Williams escorted her back

into the cab of the truck, she observed that the trailer’s doors were open, but she

did not see into the trailer. Williams had disengaged the tractor from the trailer,

and he drove away, abandoning the trailer and the aliens at the truck stop.

Law enforcement and paramedics arrived at the truck stop shortly

thereafter. The scene they encountered was horrific and gruesome. There were

several dead bodies on the ground by the trailer doors. Bodies, both dead and

living, were stacked in a pile in the trailer. Some of the aliens were standing

behind the pile. The aliens were stripped down to their underwear and were

sweating. They had clawed at the foam on the inside of the trailer, and the
No. 07-20689

1 The indictment also charged 13 codefendants, but those charges are not at issue in

this appeal.

2 The applicable portions of that statute provide:

(A) Any person who—

. . . .

(ii) knowing or in reckless disregard of the fact that an alien has come to,

entered, or remains in the United States in violation of law, transports,

or moves or attempts to transport or move such alien within the United

States by means of transportation or otherwise, in furtherance of such

violation of law;

(iii) knowing or in reckless disregard of the fact that an alien has come

to, entered, or remains in the United States in violation of law, conceals,

harbors, or shields from detection, or attempts to conceal, harbor, or

shield from detection, such alien in any place, including any building or

any means of transportation;

(iv) encourages or induces an alien to come to, enter, or reside in the

United States, knowing or in reckless disregard of the fact that such

coming to, entry, or residence is or will be in violation of law; or

(v) (I) engages in any conspiracy to commit any ofthe preceding acts,

or

(II) aids or abets the commission of any of the preceding acts,

shall be punished as provided in subparagraph (B).

(B) A person who violates subparagraph (A) shall, for each alien in respect to

whom such a violation occurs—

(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case

of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was

done for the purpose of commercial advantage or private financial gain,

be fined under Title 18, imprisoned not more than 10 years, or both;

. . . .

5

trailer smelled of vomit, urine, feces, and blood. Seventeen of the trailer’s 74

passengers died at the scene and another two died at the hospital from a

combination of dehydration, hyperthermia, suffocation, and mechanical

asphyxia. The victims included two children, ages five and fifteen.

B. Procedural Background

On March 15, 2004, a multi-count superseding indictment charged

Williams1 with 58 counts alleging violations of 8 U.S.C. § 1324(a)(1).2 Count 1
No. 07-20689

(iii) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v)

during and in relation to which the person causes serious bodily injury

(as defined in section 1365 of Title 18) to, or places in jeopardy the life of,

any person, be fined under Title 18, imprisoned not more than 20 years,

or both; and

(iv) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v)

resulting in the death of any person, be punished by death or imprisoned

for any term of years or for life, fined under Title 18, or both.

8 U.S.C. § 1324(a)(1).

3 The conspiracy count alleged a violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(A)(iii),

and (a)(1)(A)(v)(I), punishable under 8 U.S.C. § 1324(a)(1)(B)(i), (a)(1)(B)(iii), and (a)(1)(B)(iv).

4 The harboring counts alleged violations of 8 U.S.C. § 1324(a)(1)(A)(iii) and

(a)(1)(A)(v)(II), punishable under 8 U.S.C. § 1324(a)(1)(B)(i) and (a)(1)(B)(iii).

5 The noncapital transporting counts alleged violations of 8 U.S.C. § 1324(a)(1)(A)(ii)

and (a)(1)(A)(v)(II), punishable under 8 U.S.C. § 1324(a)(1)(B)(i) and (a)(1)(B)(iii).

6 The capital transporting counts alleged violations of 8 U.S.C. § 1324(a)(1)(A)(ii) and

(a)(1)(A)(v)(II), punishable under 8 U.S.C. § 1324(a)(1)(B)(i), (a)(1)(B)(iii), and (a)(1)(B)(iv).

6

(conspiracy) charged him with conspiracy to harbor and transport unlawful

aliens for private financial gain, causing serious injury to a person, placing in

jeopardy the life of a person, and resulting in the death of a person.3 Counts 2

through 20 (harboring) each charged him with aiding and abetting the harboring

of unlawful aliens for private financial gain, causing serious injury to a person

and placing in jeopardy the life of a person.4 Counts 21 through 39 (noncapital

transporting) each charged him with aiding and abetting the transporting of

unlawful aliens for private financial gain, causing serious bodily injury and

placing in jeopardy the life of a person.5 Counts 40 through 58 (capital

transporting) each charged him with aiding and abetting the transporting of

unlawful aliens for private financial gain, causing serious injury to a person,

placing in jeopardy the life of a person, and resulting in the death of a person.6

The Government simultaneously filed a notice of intent to seek the death penalty

against Williams under the Federal Death Penalty Act of 1994 (FDPA), 18

U.S.C. §§ 3591–3598.
No. 07-20689

7 This is the fourth time this case has come before us. The first two were interlocutory

appeals relating to discovery matters. See In re United States (Williams I), 397 F.3d 274 (5th

Cir. 2005) (per curiam) (granting the Government’s mandamus request on a discovery matter);

United States v. Williams (Williams II), 400 F.3d 277 (5th Cir. 2005) (per curiam) (granting

the Government’s request under collateral order appeal or mandamus to avoid discovery

sanction). The third appeal was from a judgment of mistrial on the conspiracy and harboring

counts and conviction on a partial jury verdict on the transporting and capital transporting

counts. See United States v. Williams (Williams III), 449 F.3d 635 (5th Cir. 2006). In Williams

III, we vacated the district court’s judgment on the jury verdict and remanded for new trial and

reassignment to a new district judge. Id. at 647–48.

8 The jury also returned a verdict of guilty on the harboring counts, but the district

court dismissed those counts on the Government’s motion.

7

Trial proceeded against Williams on all counts and ended in a mistrial.7

Following appeal and remand, the case was retried. On December 4, 2006, the

jury returned a verdict of guilty on the conspiracy, noncapital transporting, and

capital transporting counts.8 The capital counts then proceeded to a separate

sentencing hearing before the jury, as mandated by the FDPA. See 18 U.S.C.

§§ 3591(a) & 3593(b)(1). At the sentencing hearing, the Government bore the

burden of proving beyond a reasonable doubt at least one of four possible

threshold intents. See 18 U.S.C. § 3591(a)(2). The only threshold intent

submitted to the jury was whether Williams “intentionally and specifically

engaged in an act of violence, knowing that the act created a grave risk of death

to a person . . . such that participation in the act constituted a reckless disregard

for human life and the victim died as a direct result of the act.” 18 U.S.C.

§ 3591(a)(2)(D). Over Williams’s objection, the district court submitted the

following instructions regarding “act of violence”:

To find that this threshold intent requirement is satisfied as

to each of Count One and Counts Forty through Fifty-Eight, you

must unanimously find that the prosecution has proven beyond a

reasonable doubt each of the following: that Mr. Williams

intentionally and specifically committed an act of violence; that Mr.

Williams actually knew that the act created a grave risk of serious

bodily injury or death to a person; that committing the act of

violence constituted a reckless disregard for human life; and that
No. 07-20689

9 Although 18 U.S.C. § 3591(a)(2)(D) mandates that a person must have “engaged in”

and “participat[ed] in” an act of violence sufficient to merit capital punishment, the

Government affirmatively undertook to prove that Williams personally “committed” such an

act, including agreeing to this exact language in the jury charge. We are therefore not called

upon to determine whether the statutory terms embrace the conduct of “engag[ing] in” or

“participati[ng] in” an act of violence that the defendant did not personally commit, and we

express no opinion on the matter.

8

one or more of the individuals died as a direct result of the act of

violence.

An “act of violence” is an act, that by its nature, creates a

grave risk of serious bodily injury to a person or a grave risk of

death to a person. An “act of violence” is one that inherently carries

a grave risk of seriously injuring or killing a person. In deciding

whether the prosecution has metits burden of proving the threshold

intent requirement beyond a reasonable doubt, you are to base your

decision on the acts that Mr. Williams committed, and not on the

acts of any other person or persons.

For the conspiracy count and each of the capital transporting counts, the jury

answered that Williams had committed such an act of violence.9

The jury was then tasked with weighing aggravating factors for which the

Government had provided notice against any mitigating factors. See 18 U.S.C.

§§ 3591(a), 3592(a) & (c), 3593. The statutory aggravating factors submitted for

each capital count were that Williams, in committing the offense, knowingly

created a grave risk of death to one or more persons other than the victim, see

18 U.S.C. § 3592(c)(5), and that he committed the offense in an especially

heinous, cruel, or depraved manner in that it involved serious physical abuse to

the victim, see 18 U.S.C. § 3592(c)(6). For each of the two capital transporting

counts involving underage victims, a third aggravating factor was submitted

based on the victims being particularly vulnerable due to youth. See 18 U.S.C.

§ 3592(c)(11). The jury answered that the grave risk of death aggravating factor

was present on each count, that the especially heinous commission aggravating

factor was absent on each count, and—on the two counts for which it was
No. 07-20689

10 With respect to the nonstatutory aggravating factors, the jury unanimously found

that Williams: (1) was likely to commit criminal acts of violence in the future that would be a

danger to the lives and safety of other persons; (2) made the victims vulnerable by transporting

them in a sealed container that they could not open; and (3) caused significant injury, harm,

and loss to the families of the victims. With respect to the mitigating factors, the jury found

that: (1) equally culpable codefendants were not sentenced to death; (2) Williams was a minor

participant in the events leading to the victims’ deaths; (3) Williams is a hardworking, good,

and caring person; (4) Williams cooperated with the authorities; (5) executing Williams would

adversely impact his wife and family; (6) Williams has shown and continued to show remorse

for his wrongs; (7) there is a strong likelihood that Williams can be rehabilitated; (8) Williams

had adapted well to incarceration; (9) Williams poses no future threat to society; (10) the

incident was out of character for Williams and was an isolated incident; and (11) Williams

acted under the substantial domination of Flores. The only mitigating factor submitted that

the jury failed to find was that Williams had no significant prior criminal history.

9

submitted—that the vulnerable victim aggravating factor was present.10 The

jury recommended that Williams should be sentenced by the district court to a

term of years on the conspiracy count and to a term of life imprisonment without

possibility of release on each of the capital transporting counts. See 18 U.S.C.

§§ 3593(e) (authorizing the jury, after finding a threshold intent present, to

recommend a sentence of death, life imprisonment without possibility of release,

or a lesser sentence) & 3594 (requiring the district courtto sentence a defendant

to death or life imprisonment without possibility of release upon the jury’s

recommendation).

For the conspiracy and noncapital transporting counts, a presentence

investigation report (PSR) was prepared. The PSR recommended an offense

level of 42 and a criminal history category of I under the 2004 version of the U.S.

Sentencing Guidelines Manual (“U.S.S.G.” or the “Guidelines”). This included

a nine-level enhancement under U.S.S.G. § 2L1.1(b)(2)(C) for transporting 100

or more unlawful aliens and an upward departure of eleven levels under § 5K2.1

for the numerous deaths. The district court adopted the PSR’s recommendation:

on the conspiracy count, Williams was sentenced to 405 months’ imprisonment

followed by five years’ supervised release; on the noncapitaltransporting counts,

Williams was sentenced to the statutory maximum of 240 months’ imprisonment
No. 07-20689

10

followed by three years’ supervised release. All sentences, including the life

sentences imposed on each capitaltransporting count, were to run concurrently,

as were the two terms of supervised release.

Williams timely appealed.

II. DISCUSSION

Williams argues first that we should reverse his convictions and remand

for a new trial because the Government unconstitutionally struck a venireperson

on account of race. He then levels three challenges to his sentences. Regarding

the capital counts, Williams claims that the district court erred in its definition

of “act of violence” under the applicable threshold intent of the FDPA and that

insufficient evidence was presented to warrant a sentencing phase before the

jury. He then argues that the district court erred in its sentencing-phase jury

instruction regarding the aggravating factor based on vulnerability of two

victims. Finally, with respect to the counts on which he was sentenced by the

district court, Williams claims that the district court improperly applied a

sentencing enhancement based on the number of unlawful aliens he transported.

We address these arguments in turn.

A. Batson Challenge

Williams first argues that the Government unconstitutionally exercised

a peremptory challenge to strike venireperson Lawrence Allen, an

African–American, on the basis of his race. Williams claims that the district

court’s denial of his challenge under Batson v. Kentucky, 476 U.S. 79 (1986), was

reversible error warranting a new trial. The Government responds that the

race-neutral reasons it articulated below for striking Allen withstand appellate

scrutiny.

“[I]t is a fixed part of our constitutional landscape that ‘the use of

peremptory challenges to strike venire-persons based on their race violates the

equal protection component ofthe Due Process clause ofthe Fifth Amendment.’”
No. 07-20689

11

United States v. Williamson, 533 F.3d 269, 274 (5th Cir. 2008) (alteration

omitted) (quoting United States v. Montgomery, 210 F.3d 446, 453 (5th Cir.

2000)). In determining whether a peremptory challenge was impermissibly

based on race, a district court must undertake a three-step analysis:

First, a defendant must make a prima facie showing that a

peremptory challenge has been exercised on the basis of race;

second, if that showing has been made, the prosecution must offer

a race-neutral basis for striking the juror in question; and third, in

light of the parties’ submissions, the trial court must determine

whether the defendant has shown purposeful discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476–77 (2008) (quotation marks and

alterations omitted) (quoting Miller–El v. Dretke (Miller–El II), 545 U.S. 231, 277

(2005) (Thomas, J., dissenting)).

This case implicates only the third step of Batson. “Where, as here, the

prosecutor tenders a race-neutral explanation for his peremptory strikes, the

question of Defendant’s prima facie case is rendered moot and our review is

limited to the second and third steps of the Batson analysis.” See United States

v. Williams, 264 F.3d 561, 571 (5th Cir. 2001) (citing United States v. Broussard,

987 F.2d 215, 220 n.4 (5th Cir. 1993), abrogated on other grounds by J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127 (1994)). Furthermore, Williams does not

dispute that the Government offered a race-neutral basis for striking Allen.

Reed v. Quarterman, 555 F.3d 364, 368 (5th Cir. 2009) (addressing only the third

step of Batson where the first two steps were not disputed); see also Purkett v.

Elem, 514 U.S. 765, 767–68 (1995) (per curiam) (“The second step of this process

does not demand an explanation that is persuasive, or even plausible.”). Our

review is therefore limited to assessing the district court’s determination that

Williams failed to show purposeful discrimination. In undertaking this review,

we are mindful that “[t]he trial court has a pivotal role in evaluating Batson

claims,” Snyder, 552 U.S. at 477, and, accordingly, “we afford its
No. 07-20689

12

rulings—especially its credibility and demeanor determinations—due deference.”

Williamson, 533 F.3d at 274 (citing Snyder, 552 U.S. at 477). That deference

requires us to “‘review the district court’s conclusion on whether the peremptory

strike[ ] w[as] racially motivated for clear error.’” Id. (quoting Williams, 264

F.3d at 571). “A finding is clearly erroneous when although there is evidence to

supportit,the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.” Anderson v. City of

Bessemer City, 470 U.S. 564, 573 (1985) (alteration and internal quotation marks

omitted) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

During voir dire of the entire venire panel, Allen raised his hand in

response to two questions asked by the district court, one relating to whether the

members of the venire had opinions about smuggling illegal aliens into the

United States and another asking whether the venire had any preconceived

opinions about Williams’s guilt. During Allen’s individual voir dire, the

Government asked follow-up questions regarding those responses. Regarding

his response to having a preconceived opinion about Williams’s guilt, Allen

answered that he had heard “a little bit” about the case from the news but that

nothing from the news coverage had caused him to reach any conclusions as to

the guilt of anybody involved in the case. Allen explained that he had raised his

hand because he had heard “certain things” from “people on the street” “that

[Williams] might be guilty,” but that he would have to “hear the evidence first

to make sure.” Regarding his response to the district court’s question about

smuggling aliens into the United States, Allen clarified that he held strong

opinions about “illegals working in th[is] country” “but not dealing with this

case.”

The Government also asked Allen about responses he had given on his

written questionnaire. In one of those responses, Allen had selected, from

several possibilities,that he feltthe death penalty was “applied unfairly against
No. 07-20689

11 Allen’s explanation was as follows:

The reason I was saying that is because you’re giving me the option of which one

that we have to determine. I would look at all the facts and then with the jury

will make that decision as far as—because of the penalty phase that this person

lives. Then we’ll make that judgment.

13

certain racial or ethnic groups.” He explained that in the 1960s or ’70s, some of

his friends had been arrested and charged with (non-death penalty) crimes in

Florida after dating white women, but that he did not know whether the death

penalty was presently applied unfairly against certain racial or ethnic groups.

In another, he stated that his sister was arrested once because of her race but

that it would not cause him to favor either side in Williams’s case. In a third

response, Allen indicated that he would automatically choose one punishment

over the other if given a choice of imposing a term of imprisonment or the death

penalty, but he explained that he would base that determination on the facts at

trial.11 Allen reiterated that, as a juror, he would base his decision on the

evidence and would follow the court’s instructions.

At that time, neither party moved to strike Allen for cause. Later on, the

Government exercised a peremptory challenge and struck Allen, and Williams

objected on Batson grounds. In response to Williams’s Batson challenge, the

Government offered the following race-neutral reasons for striking Allen: (1) he

presumed Williams’s guilt; (2) he was noncommittal in response to voir dire

questioning;(3) he expressed a beliefthatthe death penalty was unfairly applied

to certain ethnic or racial groups, alluding to an event in the 1960s or ’70s in

which friends of his were arrested and charged with crimes after dating white

women; (4) his sister had been arrested on account of her race; (5) he indicated

on his juror questionnaire that he would automatically choose one sentence over

another; and (6) he stated on his questionnaire that the death penalty is never

justified. Williams countered that many white venirepersons had been

noncommittal or inconsistent during voir dire and argued thatthe Government’s
No. 07-20689

12 In an earlier hearing, the district court had explained that 34 of the venire’s 250

members—or 13.6%—were African–American, a proportion that exceeded the 11.04% overall

rate for the Houston Division of the Southern District of Texas. 

13 The district court stated:

[Defense counsel]’s argument essentially applies to every—the problem with

your argument . . . is that you can find so many—there were so many answers

given, either to the questionnaire, to oral questions, the group, as well as

individually, that you could find some basis on which to say as to everybody who

was the subject of the challenge, while there was someone who was outside of

that person’s group who was not removed on the basis—on that basis.

My point is that it’s extraordinarily difficult, given the wealth of

information of data points of responses, to pick out one and say: Well, somebody

who was not black gave a similar response to that one question, but that person

is on the panel. Or that person. And so, it’s a race-based justification.

Obviously, there are some—some—some responses that you could

imagine, some proffered basis that certainly could be either inherently

discriminatory or would not be credible, that would support a Batson challenge,

but you can’t pick one answer to one question, take it out of context and say:

Well, this non-black person answered that same question the same way, and

they’re on the panel; and, therefore, there’s discrimination.

14

reasons were pretext for purposeful discrimination based on Allen’s race.

Before it denied Williams’s Batson challenge, the district court confirmed

the demographic composition of the impaneled jury as compared to the venire.

Nine African–Americans were qualified for the jury pool, and the Government

exercised peremptory strikes on five of them. Of the remaining four, three were

on the main panel, while one was an alternate, meaning that three of the twelve

jurors on the main panel—or 25%—were African–American.12 The court

explained to the parties thatthe statistics did not support a finding of purposeful

discrimination: “There were 13.6 percent [African–Americans] in the venire, and

there are 25 percent on the panel.” The district court rejected Williams’s

contention that the Government’s justification was belied because other

venirepersons had given noncommittal or inconsistent answers, as that

particular objection was broad enough to apply to virtually every venireperson.13

Accordingly, the district court found that there was no “basis for inferring
No. 07-20689

14 The Government also argues that Williams’s comparison analysis should be reviewed

only for plain error. It claims forfeiture because, although Williams raised a comparison

argument before the district court, he did not specifically identify Cox and Selph as comparison

venirepersons. We disagree that a Batson challenge requires such specificity. In Miller–El II,

the Court engaged in just such a comparison on habeas review, notwithstanding that those

comparisons were not made before the state courts. 545 U.S. at 241 n.2; see also Snyder, 552

U.S. at 483 (warning appellate courts to be cautious in making “retrospective comparison[s]”

that were not explored below but not prohibiting the approach). The Government cites several

cases to support its assertion of plain error review here, but in none of those cases had the

appellant made a comparison argument during voir dire, as Williams did here. In any event,

our conclusion that the district court did not err in denying Williams’s Batson challenge

renders the plain error issue irrelevant.

15

purposeful discrimination” and concluded that the Government “ha[d] credibly

established the reasons for the peremptory strike being exercised” on Allen.

On appeal, Williams points to the individual voir dire of two other

venirepersons—Kathleen Cox and Lawrence Selph—who, he contends, gave

similar answers as Williams but were not struck by the Government because

they were not African–American. He contends that the district court erred in

rejecting his “comparator” argument based on the size ofthe venire because such

reasoning would prevent comparison analysis whenever a large venire was

assembled. The Government responds by reasserting the race-neutral grounds

it offered to the district court and emphasizing our deferential standard of

review.14

We agree with the Government that our deferential standard of review

disposes of Williams’s Batson claim. The Government’s articulated reasons for

striking Allen are supported by the voir dire transcripts. Of course, “[i]f a

prosecutor’s proffered reason for striking a black panelist applies just as well to

an otherwise-similar nonblack who is permitted to serve, that is evidence

tending to prove purposeful discrimination to be considered at Batson’s third

step.” Miller–El II, 545 U.S. at 241 (citing Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 147 (2000)). However, Williams’s comparisons of Allen to Cox

and Selph are not persuasive. Cox stated that she had read about the case and
No. 07-20689

15 Williams challenged Cox for cause, but the district court denied that challenge.

Williams later exercised a peremptory challenge to strike Cox.

16 Williams did not examine Selph after the Government concluded its questioning.

Neither party challenged Selph for cause, and neither party exercised a peremptory challenge

to strike him. Selph served as an alternate juror.

17 We are unconvinced by Williams’s contention that the district court rejected a

comparison analysis because of the large size of the venire. The district court rejected

Williams’s specific comparisons, notthe concept of comparison generally, stating that “you can’t

pick one answer to one question, take it out of context and say: Well, this non-black person

answered that same question the same way, and they’re on the panel; and, therefore, there’s

discrimination.”

16

“d[id] not understand how someone could treat people so cruelly.” However, she

explained that she realized during voir dire that the media coverage may have

been inaccurate and that she was not referring to any particular “someone”; she

assured the district courtthat she would be able to disregard any knowledge she

already had about the case and base her decision solely on the evidence

presented.15 Unlike Allen, Cox did not give any inconsistent answers regarding

the death penalty. Selph, during his individual voir dire, asserted that he would

follow the law and could impose the death penalty if it was the appropriate

punishment. When asked about his response on the questionnaire that he knew

the death penalty was unfairly applied against certain racial or ethnic groups,

he explained that he believed there was unfair treatment based on what he had

read about criminal cases. That belief, he stated, would not cause him to be

partial to either side, even though he knew that Williams is black.16 As was the

case with Cox, there is nothing to suggest that Selph was inconsistent in his

answers about imposing the death penalty.17

“[T]he question presented at the third stage of the Batson inquiry is

whether the defendant has shown purposeful discrimination.” Snyder, 552 U.S.

at 484–85 (internal quotation marks omitted) (quoting Miller–El II, 545 U.S. at

277). In light of the demographic composition of the jury and the differences

between Allen’s voir dire responses and those of Cox and Selph, we discern no
No. 07-20689

18 The requisite threshold intent exists when it is found beyond a reasonable doubt that

the defendant:

(A) intentionally killed the victim;

(B) intentionally inflicted serious bodily injury that resulted in the death of the

victim;

(C) intentionally participated in an act, contemplating that the life of a person

would be taken or intending that lethal force would be used in connection with

a person, other than one of the participants in the offense, and the victim died

as a direct result of the act; or

(D) intentionally and specifically engaged in an act of violence, knowing that the

act created a grave risk of death to a person, other than one of the participants

in the offense, such that participation in the act constituted a reckless disregard

for human life and the victim died as a direct result of the act . . . .

18 U.S.C. § 3591(a)(2).

17

clear error in the district court’s finding that Williams had failed to show

purposeful discrimination.

B. Threshold Intent

Williams’s next challenge is to the jury instructions regarding the

threshold intent rendering him death eligible. Under the FDPA, conviction of

an offense punishable by death is followed by a separate sentencing

hearing—the “selection phase,” Jones v. United States, 527 U.S. 373, 381

(1999)—at which aggravating and mitigating factors are considered. See 18

U.S.C. §§ 3592 & 3593(b)(1). At the selection phase, the jury may recommend

a sentence of death, life imprisonment without possibility of release, or a lesser

sentence determined by the district court. 18 U.S.C. § 3593(e). However, before

such a recommendation may be made, the jury mustfirst address the “eligibility

phase” and unanimously find beyond a reasonable doubt at least one of four

threshold intents18 and at least one statutory aggravating factor rendering the

defendant eligible for a death sentence. See 18 U.S.C. §§ 3591(a)(2), 3592(c) &

3593(e)(2); Jones, 527 U.S. at 376, 381. In Williams’s case, the sole threshold

intent submitted to the jury during the eligibility phase was that contained in
No. 07-20689

18

18 U.S.C. § 3591(a)(2)(D), which provides:

A defendant who has been found guilty of any . . . offense for which

a sentence of death is provided, if the defendant, as determined

beyond a reasonable doubt at the hearing under section 3593 . . .

intentionally and specifically engaged in an act of violence, knowing

that the act created a grave risk of death to a person . . . such that

participation in the act constituted a reckless disregard for human

life and the victim died as a direct result of the act, shall be

sentenced to death if, after consideration of the factors set forth in

section 3592 in the course of a hearing held pursuant to section

3593, it is determined that imposition of a sentence of death is

justified . . . .

18 U.S.C. § 3591(a)(2)(D) (internal numbering omitted).

The FDPA does not contain a definition for what constitutes an act of

violence. During the eligibility phase, the jury was instructed that:

An “act of violence” is an act, that by its nature, creates a

grave risk of serious bodily injury to a person or a grave risk of

death to a person. An “act of violence” is one that inherently carries

a grave risk of seriously injuring or killing a person. In deciding

whether the prosecution has metits burden of proving the threshold

intent requirement beyond a reasonable doubt, you are to base your

decision on the acts that Mr. Williams committed, and not on the

acts of any other person or persons.

Earlier, the district court had asked the parties whether the instruction should

also include the following additional language:

An act of violence is any act that involves the use, attempted use, or

threatened use of physical force against the person of another,

creating a grave risk of serious injury to a person—or to that person

or a grave risk of death to that person.

The Government objected to the additional language, and Williams objected to

its absence. Ultimately, the district court concluded that the additional

language was unnecessary.

Williams argues on appealthatthe act of violence instruction erroneously

permitted the jury to find him death eligible without requiring that the act

involve the use of physical force. He claims that under a correct definition, the
No. 07-20689

19

jury would have had insufficient evidence to establish the requisite act of

violence, and we should vacate the life sentences and remand for sentencing by

the district court. In contrast, the Government endorses the definition adopted

by the district court and contends that the jury correctly found that Williams

engaged in an act of violence. We first address the definition of act of violence

before turning to whether Williams engaged in such an act of violence.

1. Defining “Act of Violence”

Ordinarily, we review a jury instruction for abuse of discretion, affording

substantial latitude to the district courtin describing the law to the jury. United

States v. Santos, 589 F.3d 759, 764 (5th Cir. 2009). Under this standard, “[w]e

consider whether the charge, as a whole, was a correct statement of the law and

whether it clearly instructed the jurors as to the principles of the law applicable

to the factual issues confronting them.” Id. (internal quotation marks omitted)

(quoting United States v. Orji–Nwosu, 549 F.3d 1005, 1006 (5th Cir. 2008)).

However, when a jury instruction hinges on a question of statutory construction,

our review is de novo. United States v. Guevara, 408 F.3d 252, 257 (5th Cir.

2005) (citing United States v. Ho, 311 F.3d 589, 605 (5th Cir. 2002)); United

States v. Morales–Palacios, 369F.3d 442, 445 (5th Cir. 2004) (citing Ho, 311 F.3d

at 605).

The threshold intent at issue in this case—18 U.S.C.

§ 3591(a)(2)(D)—consists essentially of three elements. It requires first that the

defendant have “intentionally and specifically engaged in an act of violence.” 18

U.S.C. § 3591(a)(2)(D). Second, the defendant must have done so “knowing that

the act created a grave risk of death to a person . . . such that participation in

the act constituted a reckless disregard for human life.” Id. Finally, the “victim

[must have] died as a direct result of the act.” Id. Our inquiry is limited to the

first element, and more specifically to the phrase “act of violence.” At the outset,

we note that the modifying words “of violence” must be given meaning. This is
No. 07-20689

19 The relevant section provides:

[T]he term “violent felony” means any crime punishable by imprisonment for a

term exceeding one year, or any act of juvenile delinquency involving the use or

carrying of a firearm, knife, or destructive device that would be punishable by

imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use of

20

true because of the precept of statutory construction that effect should be given

to every clause and word of a statute, see Moskal v. United States, 498 U.S. 103,

109 (1990) (noting the “established principle that a court should give effect, if

possible, to every clause and word of a statute” (internal quotation marks

omitted) (quoting United States v. Menasche, 348 U.S. 528, 538–39 (1955))), and

also because the FDPA itself distinguishes between an “act,” 18 U.S.C.

§ 3591(a)(2)(C), and an “act of violence,” 18 U.S.C. § 3591(a)(2)(D). See Barnhart

v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (“[W]hen Congress includes

particular language in one section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” (internal quotation marks

omitted) (quoting Russello v. United States, 464 U.S. 16, 23 (1983))); see also

United States v. Baskerville, 491 F. Supp. 2d 516, 521 (D.N.J. 2007) (noting the

distinction between “act” and “act of violence” and concluding that “Congress

expressly narrowed subsection (D)to acts of a particular quality, namely, violent

acts”).

Because the FDPA does not define “act of violence,” we must “give the

phrase its ordinary meaning.” Johnson v. United States, 130 S. Ct. 1265, 1270

(2010) (citing Bailey v. United States, 516 U.S. 137, 144–45 (1995), superseded

by statute on other grounds as described in United States v. O’Brien, 130 S. Ct.

2169 (2010)). We are not without guidance in ascertaining the ordinary meaning

of the phrase “act of violence.” The Supreme Court, in the context of the Armed

Career Criminal Act (ACCA),19 recently examined the ordinary meaning of the
No. 07-20689

physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of

physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B).

20 Prior to Johnson, the Court had alluded to the ordinary meaning of the term “crime

of violence,” as defined in the Comprehensive Crime Control Act of 1984, as suggesting that

physical force would be required. See Leocal v. Ashcroft, 543 U.S. 1, 11 (2004). According to

the Leocal Court:

[W]e cannot forget that we ultimately are determining the meaning of the term

“crime of violence.” The ordinary meaning of this term, combined with § 16’s

emphasis on the use of physical force against another person (or the risk of

having to use such force in committing a crime), suggests a category of violent,

active crimes . . . .

21

word “violent”:

Even by itself, the word “violent” in § 924(e)(2)(B) connotes a

substantial degree of force. Webster’s [New International

Dictionary] 2846 [(2d ed. 1954)] (defining “violent” as “moving,

acting, or characterized, by physical force, esp. by extreme and

sudden or by unjust or improper force; furious; severe; vehement

. . .”); 19 Oxford English Dictionary 656 (2d ed. 1989) (“characterized

by the exertion of great physical force or strength”); Black’s [Law

Dictionary] 1706 [(9th ed. 2009)] (“of, relating to, or characterized by

strong physical force”). When the adjective “violent” is attached to

the noun “felony,” its connotation of strong physical force is even

clearer. See [Black’s Law Dictionary] 1188 (defining “violent felony”

as “a crime characterized by extreme physicalforce, such as murder,

forcible rape, and assault and battery with a dangerous weapon”);

see also United States v. Doe, 960 F.2d 221, 225 ([1st Cir.] 1992)

(Breyer, C.J.) (“The term to be defined, ‘violent felony,’ . . . calls to

mind a tradition of crimes thatinvolve the possibility of more closely

related, active violence[.]”).

Johnson, 130 S. Ct. at 1271 (alterations omitted); see also Begay v. UnitedStates,

553 U.S. 137, 148 (2008) (construing the second clause of the ACCA’s definition

of “violent felony” as connoting “violent and aggressive crimes committed

intentionally”). The Johnson Court’s discussion indicates that physical force is

an indispensable aspect of the word “violent.”20 Nothing in the Johnson Court’s
No. 07-20689

Id.

21 The pertinent legislative history provides:

To be eligible for the death penalty, the defendant must have intentionally

killed the victim, intentionally inflicted serious bodily injury resulting in the

victim’s death,intentionally participated in an act contemplating that a person’s

life would be taken and the victim died as a result, or intentionally engaged in

an act of violence when such participation constituted reckless disregard for

human life and the victim died as a result of the conduct. The intentional

participation and “reckless disregard for human life” standards stem from the

Supreme Court’s holdings in the cases of Enmund v. Florida, 458 U.S. 782

(1982) and Tison v. Arizona, 481 U.S. 137 (1987).

The Committee understands these cases to hold that under certain

particularly heinous circumstances, the Constitution permits the application of

the death penalty where the defendant acted with a state of mind short of an

intent to kill or in circumstances where an intent to kill can be imputed to the

defendant. These circumstances can include situations in which the defendant

intentionally and substantially participated in actions that resulted in a death

and where the defendant’s participation in an act of violence constituted

extreme reckless indifference for human life. The Committee believes that the

reckless indifference standard is appropriate, on both policy and constitutional

grounds, when a defendant may not necessarily have had an actual intent to

kill, but engaged in an act of violence that manifested an extreme and reckless

indifference for human life and resulted in death.

H.R. REP. NO. 103–466, at 15 (1994).

22

analysis indicated that its definition of “violent” was limited to the ACCA. For

our purposes, in the context of the FDPA, that analysis compels our conclusion

that an “act of violence” must necessarily entail at least some use of physical

force.

The legislative history to 18 U.S.C. § 3591(a)(2)(D) indicates the

provision’s purpose as authorizing death sentences under the circumstances of

Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137

(1987).21 In Enmund, the Court considered the constitutionality of imposing a

death sentence on a defendant who was acting as the getaway driver for two

robbers who killed their victims when the victims put up armed resistance. 458

U.S. at 784. The Court rejected the notion that the Eighth Amendment would

“permit[ ] imposition of the death penalty on one . . . who aids and abets a felony
No. 07-20689

23

in the course of which a murder is committed by others but who does not himself

kill, attempt to kill, or intend that a killing take place or that lethal force will be

employed.” Id. at 797. Nonetheless, the Enmund Court hedged by noting that

“[i]t would be very different if the likelihood of a killing in the course of a robbery

were so substantial that one should share the blame for the killing if he

somehow participated in the felony.” Id. at 799.

In Tison, the Court again addressed the permissibility of sentencing a

defendant to death where the defendantlacked the specific intent to kill. There,

three brothers amassed an arsenal and broke their father and his cellmate out

of prison. 481 U.S. at 139. During their lam through the Arizona desert, they

stole a vehicle and forced its occupants—a man, his wife, their two-year-old son,

and fifteen-year-old niece—to drive deeper into the desert. Id. at 140. Once they

stopped, the Tison father and his cellmate lined the carjacking victims up in

front oftheir escape vehicle while the Tison brothers walked toward the victims’

vehicle;theTison brothers then witnessed the victims being killed with repeated

shotgun blasts before all five men fled in the victims’ vehicle. Id. at 140–41. The

Supreme Court found that the petitioners—two of the Tison brothers—could

constitutionally be sentenced to death because “their degree of participation in

the crimes was major rather than minor, and the record would support a finding

of the culpable mental state of reckless indifference to human life.” Id. at 151.

The Court explained that “major participation in the felony committed, combined

with reckless indifference to human life, is sufficient to satisfy the Enmund

culpability requirement,” id. at 158, because “the reckless disregard for human

life implicit in knowingly engaging in criminal activities known to carry a grave

risk of death represents a highly culpable mental state . . . that may be taken

into account in making a capital sentencing judgment,” id. at 157–58.

The Government argues thatthe FDPA’s legislative history demonstrates

that 18 U.S.C. § 3591(a)(2)(D) was intended to comport with Enmund and Tison
No. 07-20689

22 Williams also argues that the doctrine of lenity requires a construction of the term

“act of violence” that requires physical force. The doctrine of lenity requires courts to resolve

ambiguous statutes in favor of criminal defendants. Moskal, 498 U.S. at 107–08. Lenity is not

necessary to our holding in Williams’s favor, and we consequently do not rely on it. We do

recognize, however, that construing the term “act of violence” to require the use of physical

force is consistent with the doctrine of lenity.

24

and thus “permits a death sentence, or in this case, a life sentence imposed

under the FDPA, for a reckless state of mind.” We take no issue with this

argument. See United States v. Bourgeois, 423 F.3d 501, 508 (5th Cir. 2005)

(“[T]he Eighth Amendment is not a per se bar to imposition of the death penalty

when the murderer possessed only a reckless state of mind.” (citing United

States v. Webster, 162 F.3d 308, 322 (5th Cir. 1998))). While Enmund and Tison

concluded that the Eighth Amendment requires major participation in a felony

combined with reckless indifference to human life to warrant a death sentence

under the felony-murder doctrine, they did not speak in terms of an “act of

violence” as the FDPA does. Our task is not to wrestle with the constitutional

requirement of culpability but instead with the statutory requirement that the

reckless indifference to human life be manifested in an “act of violence.” Neither

the legislative history of the FDPA nor the Supreme Court precedent it

references counsels against a construction of that phrase that requires the use

of physical force.22

In conclusion, we hold that an “act of violence,” for purposes of 18 U.S.C.

§ 3591(a)(2)(D), must involve the use of physical force. The jury instructions

during the eligibility phase defined an “act of violence” as “an act, that by its

nature, creates a grave risk of death to a person” and “inherently carries a grave

risk of seriously injuring or killing a person.” While this definition correctly

identifies one of the qualities of the “act” contemplated by 18 U.S.C.

§ 3591(a)(2)(D)—thatit create a grave risk of death—itfailed to identify another

required quality—that the act be one “of violence.” We interpret that latter
No. 07-20689

23 “No person shall . . . be subject for the same offense to be twice put in jeopardy of life

or limb . . . .” U.S. CONST. amend. V.

24 Williams, in his supplemental brief, argues alternatively that the FDPA and its

bifurcated jury sentencing structure cease being applicable if we find reversible error in the

threshold intent instruction because he was acquitted of a death sentence.

25

quality to require that the act involve the use of physical force, and we

accordingly conclude that the eligibility-phase jury instructions erroneously

permitted the jury to find the required threshold intent with less than 18 U.S.C.

§ 3591(a)(2)(D) requires.

2. Sufficiency of the Evidence

After concluding that an act of violence is one that entails physical force,

we must next confront the proper remedy for the erroneous jury instruction. In

response to our requestfor supplemental briefing, both Williams and the United

States indicated their agreementthat remand to the district courtfor sentencing

under the Guidelines—rather than for a new sentencing hearing before the

jury—would be proper if we were to find reversible error in the instruction

defining act of violence. However, they offer different reasons for why that is the

proper course of action. Williams argues that we should review the sufficiency

of the evidence offered at trial and find that no rational trier of fact could have

found that he engaged in the requisite act of violence. The Government

disclaims the need for a sufficiency inquiry because the jury’s recommendation

that Williams be sentenced to life imprisonment without possibility of release

constituted an acquittal of a sentence of death. Because the Government

concedes that it is barred by the Fifth Amendment’s Double Jeopardy Clause23

from again seeking the death penalty,the FDPA and its concomitant sentencing

hearing are no longer involved in the case, and any resentencing would

necessarily be done by the district court sitting without a jury.24 This rationale

assumes that a penalty-phase sentencing hearing by a jury is available only if

all three possible sentences—death, life imprisonment, or a term of years—are
No. 07-20689

26

available for the jury to recommend.

We have not yet confronted whether the FDPA contemplates a sentencing

hearing at which the jury’s sole choice is between recommending a sentence of

life imprisonment without possibility of release or a term of years to be

determined by the district court, and we do not do so today. In a typical case in

which we found reversible error, we would address an argument regarding

sufficiency ofthe evidence to avoid the possibility of double jeopardy. See United

States v. Moses, 94 F.3d 182, 188 (5th Cir. 1996) (“In cases where the reversal

permits the Government to retry the defendant, we must reach a sufficiency of

the evidence argument because the Government may not retry the defendant if

the evidence at trial was insufficient.” (citing United States v. Meneses–Davila,

580 F.2d 888, 896 (5th Cir. 1978))); accord United States v. Rodriguez, 260 F.3d

416, 423 (5th Cir. 2001) (citing Moses, 94 F.3d at 188; Meneses–Davila, 580 F.2d

at 895). It is clear that double jeopardy principles bar the Government from

seeking the death penalty against Williams on remand because the jury

unanimously recommended that he be sentenced to a term of life imprisonment

without possibility of release. See Arizona v. Rumsey, 467 U.S. 203, 211 (1984)

(“[R]espondent’s initial sentence of life imprisonment was undoubtedly an

acquittal on the merits of the central issue in the proceeding—whether death

was the appropriate punishment . . . . That judgment, based on findings

sufficient to establish legal entitlement to the life sentence, . . . bars any retrial

of the appropriateness of the death penalty.”). It is less clear what the

appropriate remedy is under the FDPA when a life sentence is recommended by

the jury during a penalty-phase sentencing hearing that was reached in error:

remand for a new jury recommendation—limited to exclude death as an

option—or a Guidelines sentence by the district court. However, we need not

and do not reach this question because we conclude that the evidence is

insufficient to support a finding of the requisite threshold intent.
No. 07-20689

25 We note also that error in a jury instruction under the FDPA may be harmless. See

18 U.S.C. § 3595(c)(2) (“The court of appeals shall not reverse or vacate a sentence of death on

account of any error which can be harmless, including any erroneous special finding of an

aggravating factor, where the Government establishes beyond a reasonable doubt that the

error was harmless.”); Sampson, 486 F.3d at 33 (“In a capital case, as in any other case, a

confusing instruction may be harmless.” (citing Boyde v. California, 494 U.S. 370, 383–84

(1990)). Our conclusion that the evidence is insufficient to support a finding of the requisite

threshold intent yields a necessary corollary that the error in defining “act of violence” was not

harmless.

27

In conducting a review for sufficiency of the evidence, we ask whether a

rational trier of fact could have found the disputed facts beyond a reasonable

doubt. See United States v. Broadnax, 601 F.3d 336, 343 (5th Cir. 2010); United

States v. Sampson, 486 F.3d 13, 47 (1st Cir. 2007) (applying the rational juror

standard to FDPA aggravating factors).25 “‘In applying this standard, we view

the evidence in the light most favorable to the prosecution and accept all

reasonable inferences that tend to support the verdict.’” Broadnax, 601 F.3d at

343 (quoting United States v. Ekanem, 555 F.3d 172, 174 (5th Cir. 2009)).

The Government articulated its act of violence theory during a November

2006 hearing:

It’s not that he was transporting them in a refrigerated trailer.

That wasn’t the act of violence. It was the fact that once he was

made aware that these people wanted out and they were

desperate—and they were in desperate straits, he intentionally and

specifically decided not to open those doors because he didn’t want

to get caught. That’s the act of violence. That’s where the rubber

meets the road, you know; and the fact that he continued to keep

them held hostage inside that refrigerated trailer from that point on

was a continuing act of violence or act of violence against them.

On appeal,the Government presses the same theory, arguing that Williams’s act

of violence consisted of “his intentional refusal to turn on the refrigeration unit

and intentional refusal to let the aliens out of the trailer.”

These omissions, while callous and ultimately devastating, do not involve

the use of physical force as contemplated by the act of violence requirement in
No. 07-20689

28

18 U.S.C. § 3591(a)(2)(D). The evidence presented at trial was clear that the

aliens were loaded by others involved in the smuggling operation while Williams

remained in the cab of his truck. Merely driving the tractor–trailer does not

constitute the use of physical force in the relevant sense. See Dalton v. Ashcroft,

257 F.3d 200, 206 (2d Cir. 2001) (“The physical force used cannot reasonably be

interpreted as a foot on the accelerator or a hand on the steering wheel.

Otherwise, all driving would, by definition, involve the use of force, and itis hard

to believe that Congress intended for all felonies that involve driving to be

‘crimes of violence.’”). And although Williams continued driving and left the

aliens trapped in the trailer without air conditioning even after he realized their

plight, the evidence does not show that he exerted physical force against the

aliens themselves. The only evidence of Williams’s interactions with them was

in passing bottles of water through the holes in the trailer—an act that cannot

sensibly be categorized as violent. None of the testimony suggests that Williams

even spoke to the aliens after opening the trailer doors, let alone used physical

force against them at the time. Because the evidence was insufficient as a

matter of law to support a finding that Williams engaged in the requisite act of

violence, the threshold intent question should not have been submitted to the

jury, and sentencing should have been done by the district court.

In support of its theory that Williams’s refusalto release the aliens or turn

on the refrigeration unit was the act of violence, the Government cites Dickson

v. Ashcroft, 346 F.3d 44 (2d Cir. 2003). In that case, the court was tasked with

determining whether unlawful imprisonment accomplished by deception was a

crime of violence under 18 U.S.C. § 16, and it addressed a hypothetical situation

that had been presented at oral argument:

[A] defendant lures a victim to enter a room voluntarily, and then

locks the door, leaving the victim imprisoned. Dickson argued that

such an act would be unlawful imprisonment by deception, but

would not involve the use or risk of force. We cannot agree that
No. 07-20689

26 Although the conspiracy count was a capital charge and was submitted to the jury

during the sentencing phase of trial, the jury determined that the appropriate sentence was

29

such an act does not involve confining the victim by force—even

though there has been no application of violent force, the defendant

has unquestionably, by locking the door, imposed physical barriers

of forcible restraint.

Id. at 49. Unlike in Dickson, however, here it is undisputed that Williams did

notimpose any such barriers—other members ofthe smuggling operation loaded

and sealed the trailer.

Williams’s conduct during the smuggling trip, despicable as it was, fell

short of the statutory minimum to subject Williams to the possibility of a death

sentence. We therefore remand for resentencing by the district court. Because

our remand is to the district courtfor resentencing, we do not decide whether the

FDPA would condone a sentencing hearing before a jury not empowered to

recommend a sentence of death.

C. Aggravating Factor

Williams next argues that the jury instructions during the sentencing

hearing regarding the vulnerable victim aggravating factor under 18 U.S.C.

§ 3592(c)(11) were improper. He concedes that he did not preserve this claim by

objecting below and that our review is for plain error. However, this aggravating

factor becomes relevant only during the selection phase by the jury. See 18

U.S.C. §§ 3591(a)(2)(D) & 3592. Because we are remanding for sentencing by the

district court, we need not address Williams’s claims of error during the selection

phase before the jury.

D. Sentence Calculation

Williams next asserts that the district court erred in its application of a

sentencing enhancement based upon the number of unlawful aliens he

transported. For the conspiracy and noncapital transporting counts, Williams

was sentenced by the district court.26 Over Williams’s objection, the district
No. 07-20689

a term of years to be imposed by the district court.

27 The district court applied the 2004 version of the Guidelines, and we do so as well.

We note that the relevant provisions in the current version of the Guidelines do not differ in

any material respect.

28 On appeal, Williams does not press any other challenge to the district court’s

sentences on the conspiracy and transportation counts.

30

court adopted the recommendation ofthe PSR that the sentences on those counts

include nine-level enhancements under § 2L1.1(b)(2)(C) of the Guidelines.27

That section applies “[i]f the offense involved the smuggling, transporting, or

harboring of six or more unlawful aliens.” U.S.S.G. § 2L1.1(b)(2). Section

2L1.1(b)(2) provides for different level increases depending on the number of

unlawful aliens smuggled, transported, or harbored; a six-level enhancement

applies if the number is 25 to 99, U.S.S.G. § 2L1.1(b)(2)(B), and a nine-level

enhancement applies if the number is 100 or more, U.S.S.G. § 2L1.1(b)(2)(C).

The district court concluded that the nine-level enhancement applied because

Williams had transported approximately 60 unlawful aliens in late April or early

May 2003, just prior to the 74 he transported on May 13–14, 2003; the district

court considered both trips to be “relevant conduct” for purposes of applying the

sentencing enhancement, and the combined number of unlawful aliens

transported during those trips exceeded 100. See U.S.S.G. § 1B1.3. Williams

claims the district court erred in including the number of unlawful aliens

transported during the first trip because that trip was not alleged in the

superseding indictment.28

We review a district court’s interpretations of the Guidelines de novo and

its factual findings for clear error. United States v. Longstreet, 603 F.3d 273,

275–76 (5th Cir. 2010). A district court’s determination of the number of

unlawful aliens attributable to a defendant under § 2L1.1(b)(2) is a factual

finding that we review for clear error, see United States v. Angeles–Mendoza, 407
No. 07-20689

29 Section 3D1.2(d) includes offenses covered by § 2L1.1.

30 “Commentary contained in U.S.S.G. application notes is ‘authoritative unless it

violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.’” Miller, 607 F.3d at 148 n.2 (quoting United States v. Johnston, 559

F.3d 292, 295 n.4 (5th Cir. 2009)).

31

F.3d 742, 750 (5th Cir. 2005), as is the “determination of what constitutes

relevant conductfor sentencing purposes,” UnitedStates v. Nevels, 160 F.3d 226,

229 (5th Cir. 1998) (citing United States v. Peterson, 101 F.3d 375, 384 (5th Cir.

1996)). This deferential standard requires only that the finding be “‘plausible

in light of the record as a whole.’” United States v. Miller, 607 F.3d 144, 148 (5th

Cir. 2010) (quoting Ekanem, 555 F.3d at 175).

The Guidelines provide several ways in which conduct may be considered

relevant conduct. Of course, relevant conduct includes “acts and omissions

committed . . . by the defendant” “during the commission of the offense of

conviction.” U.S.S.G. § 1B1.3(a)(1)(A). When there is a jointly undertaken

criminal activity, relevant conduct also extends to “all reasonably foreseeable

acts and omissions of others in furtherance of the jointly undertaken criminal

activity.” U.S.S.G. § 1B1.3(a)(1)(B). In addition, relevant conduct includes,

“with respect to offenses of a character for which § 3D1.2(d) would require

grouping of multiple counts,[29] all acts and omissions described in subdivisions

(1)(A) and (1)(B) above that were part of the same course of conduct or common

scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). Two or

more offenses may constitute part of a common scheme or plan if they are

“substantially connected to each other by at least one common factor, such as

common victims, common accomplices, common purpose, or similar modus

operandi.” U.S.S.G. § 1B1.3 cmt. n.9(A).30

Offenses that do not qualify as part of a common scheme or plan

may nonetheless qualify as part of the same course of conduct if

they are sufficiently connected or related to each other as to warrant
No. 07-20689

32

the conclusion that they are part of a single episode, spree, or

ongoing series of offenses. Factors that are appropriate to the

determination of whether offenses are sufficiently connected or

related to each other to be considered as part of the same course of

conduct include the degree of similarity of the offenses, the

regularity (repetitions) of the offenses, and the time interval

between the offenses.

U.S.S.G. § 1B1.3 cmt. n.9(B).

For § 1B1.3(a)(2) to apply, it is not necessary that “the defendant, in fact,

. . . have been convicted of multiple counts.” U.S.S.G. § 1B1.3 cmt. n.3. The

commentary provides the following two examples:

For example, where the defendant engaged in three drug sales of 10,

15, and 20 grams of cocaine, as part of the same course of conduct

or common scheme or plan, subsection (a)(2) provides that the total

quantity of cocaine involved (45 grams) is to be used to determine

the offense level even if the defendant is convicted of a single count

charging only one of the sales.

. . . For example, the defendant sells 30 grams of cocaine (a

violation of 21 U.S.C. § 841) on one occasion and, as part of the same

course of conduct or common scheme or plan, attempts to sell an

additional 15 grams of cocaine (a violation of 21 U.S.C. § 846) on

another occasion. The defendant is convicted of one count charging

the completed sale of 30 grams of cocaine. The two offenses . . . are

of a character for which § 3D1.2(d) would require the grouping of

counts, had the defendant been convicted of both counts. Therefore,

subsection (a)(2) applies and the total amount of cocaine (45 grams)

involved is used to determine the offense level.

Id.

It was not clear error for the district court to include Williams’s first trip,

during which he transported approximately 60 unlawful aliens, as part of the

relevant conduct for applying § 2L1.1(b)(2). Ample evidence supports a

conclusion that the two trips were part of a common scheme or plan. The same

accomplices—Flores, Garcia, and Chavez—were involved in both trips, and

Flores’s testimony established the number of aliens transported during the first

trip. Both trips were for the purpose of transporting aliens and were undertaken
No. 07-20689

31 Because the two trips were part of the same scheme or plan, we do not address

whether they comprise part of the same course or conduct.

33

with the same modus operandi—unlawful aliens were loaded into Williams’s

trailer in Harlingen, driven through the Sarita checkpoint, and unloaded

(unsuccessfully in the second trip) in Robstown. The Guidelines requirement to

establish a common scheme or plan is satisfied here because the offenses are

“substantially connected to each other by at least one common factor.” U.S.S.G.

§ 1B1.3 cmt. n.9(A); accord United States v. Miller, 179 F.3d 961, 966 (5th Cir.

1999) (noting that “at least one” factor “is required to infer a ‘common scheme or

plan’”); see also United States v. Fernandez–Pena, 128 F. App’x 380, 381 (5th Cir.

2005) (per curiam) (finding no clear error in adding the number of unlawful

aliens transported on two trips separated by 20 months where the two trips

shared a similar modus operandi).31 Accordingly, the district court did not

commit clear error in enhancing Williams’s sentences by nine levels under

§ 2L1.1(b)(2)(C).

III. CONCLUSION

Williams has failed to establish error under Batson; because he presses no

other error affecting the guilt phase of his trial, we AFFIRM his convictions for

counts 1 (conspiracy), 21–39 (noncapital transporting), and 40–58 (capital

transporting). We conclude that the district court erred in its definition of “act

of violence” under the Federal Death Penalty Act, and we further determine that

the evidence was insufficientto establish the required threshold intent. Because

sentencing should have been done by the district court and not the jury, we

VACATE the life sentences imposed on the capital transporting counts, and we

REMAND for resentencing by the district court on those counts. The district

court did not commit clear error in calculating the number of unlawful aliens

Williams transported, and, accordingly, we AFFIRM Williams’s sentences on the

conspiracy and noncapital transporting counts.
No. 07-20689

34

AFFIRMED IN PART; VACATED IN PART; REMANDED.