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.

Sentences with Aggravating Role Enhancements and Upward Departure Affirmed in Alien Smuggling and Money Laundering Case

United States v. Chon, No. 11-50143 (Apr. 10, 2013) (Higginbotham, Smith, Elrod) (per curiam)

The panel affirmed convictions for alien smuggling, money laundering, and aiding and assisting in the filing of a false tax return despite challenges to the sufficiency of the evidence. Two defendants also challenged the reasonableness of their sentences.

The panel rejected Garcia-Rico’s argument that the district court erred in imposing a three-level enhancement (§ 3B1.1(b)) for his alleged role as a manager or supervisor of the conspiracy in light of the unrebutted facts in his PSR that "Garcia-Rico received wired monetary payments from alien smugglers that were then used to smuggle, transport, and harbor illegal aliens." Chon also challenged his four-level enhancement (§ 3B1.1(a)) for being a leader or organizer of the money-laundering offense, but the panel affirmed given the evidence in the record.

The panel found, however, that the district court procedurally erred by not explaining the upward departure of forty-five months for Chon’s sentence. Chon did not object before the district court, so this was subject to plain error review. The district court only made a passing reference to § 3553(a) and did not provide any explanation for the sentence it selected. In the statement of reasons, however, the court indicated that it was departing "for reasons authorized by the sentencing guidelines manual" and then selected the box indicating that the sentence was based upon the government motion for upward departure. While this was clearly erroneous, the panel held that it did not affect Chon’s substantial rights since the government’s motion extensively discussed the rationale for recommending the statutory maximum for each count of conviction.

So, be sure to object in district court to unreasonable sentences. Otherwise, a judge’s mere checking of a box and the government’s arguments in a motion or in the PSR will be sufficient for appellate review.