United States v. Zuniga
2013 WL 3105251 (5th Cir. 2013)
§2B3.1 (b)(3)(A) bodily-injury enhancement was not warranted
A confidential informant told law enforcement that a disgruntled drug dealer had organized a crew to rob a stash house. The crew included the defendant and three other men. Later that day, a police officer who was observing the targeted home saw the defendant and three co-conspirators force their way in. Six minors were inside the residence and several told police that the robbers entered the house screaming, “[P]olice, where is the money!” The next day, one of the minors told the police that while the crew was trying to escape, he saw “one man trample over a 15-year old girl causing her pain in her arm.” The defendant pled guilty to various offenses associated with the robbery. The PSR recommended a two-level enhancement pursuant to §2B3.1 (b)(3)(A) based on the injuries allegedly suffered by the 15-year old girl. The defendant objected to the enhancement because the PSR did not establish that the girl suffered bodily injury, there was no evidence that she sought medical attention, and the injury was neither painful nor obvious. The district court overruled this objection, finding that the victim suffered a bodily injury was painful and obvious, and sentenced the defendant to 171 months. On appeal, the defendant claimed that although one of the robbers stepped on a victim in an attempt to escape, there was insufficient evidence of the victim’s injury to support the enhancement. The Fifth Circuit explained that the commentary to §2B3.1 (b)(3)(A) defines bodily injury as “any significant injury: e.g. an injury that is painful and obvious or is of a type for which medical attention ordinarily would be sought.” In evaluating the application of the enhancement, “the focus of the inquiry is not on the actions of the defendant, but rather on the injury sustained.” Further, the injury need not be the ‘type for which medical attention ordinarily would be sought” so long as the injury is “painful and obvious.” In this case, the only evidence supporting the enhancement was a conclusionary statement that a minor saw “one man trample over a 15-year old victim causing her pain in her arm.” The PSR responded to the defendant’s objection by “merely reiterated that ‘[t]he eyewitness who was inside of the house gave specific details on how the juvenile victim was trampled as the defendants exited the home, and how she was in pain.” However, “there is no evidence that the victim sustained any significant injury from being trampled over or what the injury even was. Moreover, the evidence provided no specificity regarding how the eyewitness knew the child’s arm was in pain.” The court reversed: “Here the only evidence supporting the bodily injury enhancement is a bare, conclusionary statement in the PSR from a witness that the robbers caused [the victim] pain in her arm. Bald, conclusionary statements in a PSR are not sufficiently reliable for sentencing purposes. Contrary to the government’s position, [the defendant] had no burden to offer rebuttal evidence to the description of bodily injury in the PSR because that description lacked sufficient indicia of reliability. Therefore, we concluded that the district court’s factual finding of bodily injury to support the §2B3.1 (b)(3)(A) enhancement was clearly erroneous because it was based on unreliable facts in the PSR.”
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