Bald, Conclusionary Statement in PSR Insufficient for Bodily-Injury Enhancement

United States v. Zuniga, No. 11-20778 (June 20, 2013) (Elrod, Higginson, Jackson) (per curiam)

Zuniga pled guilty to interference with commerce by means of robbery, amongst other charges. The district court added a two-level enhancement for "causing bodily injury," U.S.S.G. § 2B3.1(b)(3)(A). Guideline commentary 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." Thus, the focus of the inquiry is on the injury sustained not on the defendant’s actions. The only evidence in the PSR supporting this enhancement, however, was "a conclusionary statement that a minor saw ‘one man trample[] over a 15-year-old victim causing her pain in her arm.’" The panel concluded "there is no evidence that the victim sustained any significant injury from being trampled over or what the injury even was." Since the description of bodily injury in the PSR lacked a sufficient indicia of reliability, "Zuniga had no burden to offer rebuttal evidence."

In contrast, the panel affirmed the two-level enhancement pursuant to U.S.S.G. § 3B1.1(c) for Zuniga’s aggravating role as a manager of the crew that committed the robbery. Zuniga objected, since the PSR based this conclusion on statements by co-conspirators, but the district court concluded (and the panel agreed) that these statements had a sufficient indicia of reliability since they corroborated each other and were at least partly corroborated by one of the minor victim’s statements. This placed the burden on Zuniga to present rebuttal evidence to show that those facts were "materially untrue, inaccurate or unreliable," which he did not.

The case was remanded for resentencing.