                  REVISED JULY 28, 2010
        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                        Fifth Circuit

                                                                     FILED
                                                                    June 24, 2010
                                  No. 07-20689
                                                                    Lyle W. Cayce
                                                                         Clerk

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 it first found a threshold intent
that would justify imposing a sentence of death. The applicable threshold intent
                                  No. 07-20689

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 non-
Hispanic 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 of the 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


                                        2
                                  No. 07-20689

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 without inspecting 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


                                        3
                                  No. 07-20689

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


                                        4
                                         No. 07-20689

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

      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 of the 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
                                          No. 07-20689

(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.


               (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
                                       No. 07-20689

       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


       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
                                       No. 07-20689

       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 met its 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



       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
                                        No. 07-20689

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 court to 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 noncapital transporting counts,
Williams was sentenced to the statutory maximum of 240 months’ imprisonment


       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
                                  No. 07-20689

followed by three years’ supervised release. All sentences, including the life
sentences imposed on each capital transporting 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 of the Due Process clause of the Fifth Amendment.’”

                                        10
                                    No. 07-20689

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


                                        11
                                  No. 07-20689

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
support it, 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 felt the death penalty was “applied unfairly against

                                        12
                                        No. 07-20689

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 belief that the 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 that the Government’s


      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
                                         No. 07-20689

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 that the 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


       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
                                       No. 07-20689

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 of the 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


       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
                                        No. 07-20689

“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 court that 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

       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, not the 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
                                        No. 07-20689

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 must first 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



       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
                                  No. 07-20689

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 met its 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 appeal that the 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

                                       18
                                    No. 07-20689

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 court in 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, 369 F.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

                                          19
                                        No. 07-20689

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

      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
                                       No. 07-20689

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 physical force, 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 that involve the possibility of more closely
       related, active violence[.]”).
Johnson, 130 S. Ct. at 1271 (alterations omitted); see also Begay v. United States,
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


              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
                                           No. 07-20689

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


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
                                    No. 07-20689

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 defendant lacked 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 of their escape vehicle while the Tison brothers walked toward the victims’
vehicle; the Tison 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 that the FDPA’s legislative history demonstrates
that 18 U.S.C. § 3591(a)(2)(D) was intended to comport with Enmund and Tison

                                          23
                                        No. 07-20689

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)—that it create a grave risk of death—it failed to identify another
required quality—that the act be one “of violence.” We interpret that latter



       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
                                         No. 07-20689

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 request for supplemental briefing, both Williams and the United
States indicated their agreement that remand to the district court for 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

       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
                                   No. 07-20689

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 of the 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.

                                         26
                                        No. 07-20689

       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



       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
                                   No. 07-20689

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 it is 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 refusal to 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

                                         28
                                     No. 07-20689

      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
not impose any such barriers—other members of the 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 court for 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


      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
                                       No. 07-20689

court adopted the recommendation of the 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



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
                                         No. 07-20689

F.3d 742, 750 (5th Cir. 2005), as is the “determination of what constitutes
relevant conduct for sentencing purposes,” United States 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


       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
                                   No. 07-20689

      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

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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 insufficient to 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.

      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.

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                   No. 07-20689

AFFIRMED IN PART; VACATED IN PART; REMANDED.




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