FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                           October 15, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 19-1472
                                                (D.C. No. 1:18-CR-00415-REB-JMC-1)
 WAMBLI MILLS,                                                (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, HOLMES, and EID, Circuit Judges.
                  _________________________________

      Wambli Mills was convicted by a jury of one count of Sexual Abuse

Committed Within Indian Country and one count of Aggravated Sexual Abuse

Committed Within Indian Country. See 18 U.S.C. §§ 1153, 2241, 2242(2)(B).

At sentencing, and over Mr. Mills’ objection, the district court applied a two-level

enhancement under United States Sentencing Guideline § 2A3.1(b)(4)(B)

(U.S. Sent’g Comm’n 2018) based on what it found was the “credible testimony of



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
the victim that she experienced extreme physical pain, 10 on a scale of 1 to 10,

caused by [Mr. Mills’] repeated anal penetration.” R., Vol. VII at 554.1 Mr. Mills

argues that the court’s finding was clearly erroneous. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                           I

      Mr. Mills and his victim, J.H., knew each other from school and J.H.

considered him a friend. On the day of the assault, J.H. bought some alcohol and

invited Mr. Mills to drink with her. The two met up and walked to Mr. Mills’ house

where they proceeded to drink outside on the porch.

      A few hours later, J.H. asked Mr. Mills if she could use the bathroom and he

agreed. By this time J.H. was very drunk. Upon leaving the bathroom, J.H. and

Mr. Mills walked to his bedroom where J.H. passed out on the bed.

      When J.H. awoke, she observed that Mr. Mills was crying and so she stroked

his hair. J.H. then asked Mr. Mills if she could sleep on his bed for a while longer.

The last thing J.H. remembered before passing out again was Mr. Mills standing next

to the bed.

      The next time J.H. woke up, she said that Mr. Mills pulled off her clothes

(leggings and underwear) and turned her over onto her stomach. At the same time,

she began to scream and told Mr. Mills “don’t” and “stop.” R., Vol. VII at 84.



      1
       Mr. Mills was sentenced to 200 months in prison on each count, to run
concurrently, followed by a seven-year term of supervised release.

                                           2
But Mr. Mills did not stop; instead, he forced his penis, more than once, into J.H.’s

anus before she got up and ran for help.

      Law enforcement officer Anthony Garcia was investigating an unrelated crime

nearby when he heard a female screaming for help. That female was J.H., whom

Lt. Garcia observed running from a field without any clothing below her waist. “She

was looking past me. She just had this lost look and—but she was crying. She had a

lot of mucus coming from her nose.”

      A day later, J.H. felt pain and “didn’t feel like moving.”

Defecating

was “really painful.”

Two days after the assault, J.H. underwent a sexual

assault examination, including an examination of her “vaginal region” and her “anal

region.”

The examining nurse did not identify an injury to J.H.’s anal

region; however, she testified that because the anal sphincter allows for stretching an

anal injury cannot always be detected. At trial, J.H. described the anal penetrations

as physically “[p]ainful.”

When asked “[o]n a scale of 1 to 10, 10 being

the worst, how badly did it feel?” J.H. responded “[l]ike a 10.”

one issue on appeal—whether the district court’s finding that

J.H. suffered extreme physical pain was clearly erroneous because it was “based only

on the victim’s vague and subjective assessment of her pain caused by the anal

penetration and in the absence of any physical injury found by [the examining nurse]




                                           3
and in the absence of any contemporaneous complaints of extreme pain.” Aplt.

Opening Br. at 11.2

                                            II

       “When reviewing the district court’s calculation of the guidelines, we review

legal questions de novo and factual findings for clear error, giving due deference to

the district court’s application of the guidelines to the facts.” United States v.

Cortes-Gomez, 

, 707-08 (10th Cir. 2019) (internal quotation marks

omitted). “Factual findings are clearly erroneous only if they are without factual

support in the record or if this court, considering all the evidence, is left with a

definite and firm conviction that a mistake has been made.”

       Section § 2A3.1(b)(4)(B) of the Sentencing Guidelines provides for a

two-level enhancement when the sexual assault “victim sustain[s] serious bodily

injury.” Relevant here, a “serious bodily injury” is defined as an “injury involving

extreme physical pain.” USSG § 1B1.1 app. 1(M).

       At the outset, we note that the district court did not impose the enhancement

“just on the fact that criminal sexual abuse occurred,” which would be an

“impermissible double-counting.” United States v. Jim, 

, 816 (10th Cir.

2015). As we explained in Jim, the “injuries described [in § 1B1.1] fall outside



       2
       Mr. Mills briefly mentions, but then waives, other alleged errors, either
because there was no plain error or no good faith argument can be made to pursue
them.
                                             4
the standard or heartland range of injuries that could be expected in a baseline

offense of criminal sexual abuse,” and therefore, do not implicate “impermissible

double-counting.”

the act of criminal sexual abuse, the court

considered whether J.H. suffered extreme physical pain.

       The question then becomes whether J.H.’s testimony was adequate to support

the district court’s finding that she experienced extreme physical pain. In this regard,

Mr. Mills’ first argument is that J.H.’s testimony was vague. It was not; instead, J.H.

provided context by applying a scale.

       Next, Mr. Mills maintains J.H.’s testimony was subjective, and therefore

inadequate. But as the government points out, pain is subjective. Here, J.H. testified

that she experienced extreme pain. More to the point, the court was the fact-finder at

sentencing and it found that J.H’s testimony was credible. Because a district court’s

“credibility determination commands even greater deference to the trial court’s

findings than do other findings of fact[, w]e . . . especially defer to a district court’s

findings on witness credibility.” United States v. Jordan, 

, 1252

(10th Cir. 2015) (citation, brackets, and internal quotation marks omitted).

       Last, Mr. Mills argues that something more than the victim’s testimony is

needed to establish extreme physical pain. But the cases he relies on are inapposite.

For example, United States v. Guang, 

(2d Cir. 2007), concerned a

different type of “serious bodily injury” that the government attempted to use to

support an enhancement—permanent or life-threatening injuries. In this context, the

court recognized that “[w]here substantial impairment is not obvious, something

                                             5
more than the generalized and subjective impression of the victim is required in the

way of proof.”

But neither Guang nor any of the other authorities

Mr. Mills cites require such additional evidence when it comes to evaluating pain.

      In sum, the district court’s finding that J.H. experienced extreme physical pain

is not clearly erroneous.3

                                           IV

      The judgment of the district court is affirmed.


                                            Entered for the Court


                                            Jerome A. Holmes
                                            Circuit Judge




      3
         In his reply brief, Mr. Mills raises for the first time an argument that he did
not make in either the district court or his opening brief, which is that “the pain scale
method of determining whether a victim suffered ‘extreme physical pain’ is arbitrary
and unreliable, and . . . it violates due process to enhance a sentence on that basis.”
Aplt. Reply Br. at 1. “In this Circuit, we generally do not consider arguments made
for the first time on appeal in an appellant’s reply brief and deem those arguments
waived.” United States v. Leffler, 

, 1197 (10th Cir. 2019). While “we
have left open the door for a criminal defendant to argue error in an opening brief and
then allege plain error in a reply brief after the Government asserts waiver,”

the door still has hinges, and it does not swing so wide as to allow Mr. Mills to
raise an entirely new argument for the first time in his reply brief, particularly
without any mention of plain error. As such, we consider the argument waived.

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