Case: 12-10303    Date Filed: 09/20/2012   Page: 1 of 8

                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 12-10303
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:09-cr-00339-RLV-AJB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

ERIC MICHAEL BROWN,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (September 20, 2012)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Eric Brown appeals his total 145-month sentence after pleading guilty to

(1) conspiracy to commit robbery, in violation of 18 U.S.C. § 1951; (2) aiding and

abetting robbery, in violation of 18 U.S.C. §§ 1951 and 2; and (3) aiding and

abetting the use of a firearm during a crime of violence, in violation of 18 U.S.C.

§§ 924(c)(1)(A) and 2. On appeal, Brown first argues that the district court erred

by imposing a four-level enhancement under U.S.S.G. § 2B3.1(b)(3) for a serious

bodily injury because the victim’s two-inch laceration in her vaginal canal, caused

when Brown inserted his finger and another object into her vagina during the

robbery at issue, did not constitute a serious bodily injury, and, furthermore, did

not alternatively qualify for that enhancement as conduct constituting criminal

sexual assault under federal and state law. Second, Brown contends that the

district court erred by assessing 3 criminal-history points under U.S.S.G.

§ 4A1.1(a) based on his guilty plea under Georgia’s First Offender Act to

aggravated assault and possession of a firearm/knife during the commission of a

felony, as a result of which Brown was sentenced to 15 years in prison and ordered

to serve 6 years. Last, Brown argues that, because the district court committed

these guideline calculation errors, his sentence was procedurally unreasonable.

                                          I.

      We review de novo the district court’s interpretation of the Sentencing

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Guidelines and the application of the Guidelines to the facts of the case, but we

review the district court’s findings of fact only for clear error. United States v.

Register, 

, 1266 (11th Cir. 2012).

      The Guidelines provide that, if the victim of a crime sustains a “serious

bodily injury,” the offense level should be increased by four levels, while a crime

resulting in “bodily injury” merits only a two-level enhancement. U.S.S.G.

§ 2B3.1(b)(3)(A), (B). A bodily injury is “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.” 

comment. (n.1(B)). A serious bodily injury is an

“injury involving extreme physical pain or the protracted impairment of a function

of a bodily member, organ, or mental faculty; or requiring medical intervention

such as surgery, hospitalization, or physical rehabilitation.” 

comment.

(n.1(L)). Additionally, a serious bodily injury is deemed to have occurred where

the defendant committed conduct constituting criminal sexual abuse under § 2241,

§ 2242, or any similar offense under state law. 

abuse is defined as “knowingly caus[ing] another person

to engage in a sexual act . . . by using force against that other person” or by

threatening death, serious bodily injury, or kidnapping of the victim or any other

person. 18 U.S.C. § 2241(a). Sexual abuse is defined as “knowingly . . . caus[ing]

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another person to engage in a sexual act by threatening or placing that other

person in fear (other than by threatening or placing that other person in fear that

any person will be subjected to death, serious bodily injury, or kidnapping).” 

A sexual act includes, inter alia, “the penetration, however slight, of

the anal or genital opening of another by a hand or finger or by any object, with an

intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of

any person.” 

Further, Georgia law prohibits aggravated sexual

battery, which it defines as “intentionally penetrat[ing] with a foreign object the

sexual organ or anus of another person without the consent of that person.”

O.C.G.A. § 16-6-22.2(b). A foreign object is “any article or instrument other than

the sexual organ of a person.” 

      Here, the district court did not err by imposing the four-level enhancement

for serious bodily injury pursuant to § 2B3.1(b)(3)(B). Brown caused a serious

bodily injury by causing a two-inch laceration in his victim’s vaginal canal that

resulted in extreme physical pain and required medical intervention, including a

hospital visit and stitches. Further, Brown’s attack involved conduct constituting

criminal sexual abuse, as defined in both federal and state law.

                                          II.

      We review de novo the district court’s interpretation and application of the

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Sentencing Guidelines. United States v. Acuna-Reyna, 

, 1284 (11th

Cir. 2012).

      Section 4A1.1(a) of the Sentencing Guidelines instructs that, when

calculating a defendant’s criminal-history score, three points should be added for

“each prior sentence of imprisonment exceeding one year and one month.”

U.S.S.G. § 4A1.1(a). Section 4A1.1(b) provides that 2 points should be added for

sentences between 60 days and 1 year and 1 month, and § 4A1.1(c) notes that

1 point should be added “for each prior sentence not counted” in subsections

(a) or (b). 

(c). A prior sentence is defined as “any sentence

previously imposed upon adjudication of guilt, whether by guilty plea, trial, or

plea of nolo contendere, for conduct not part of the instant offense.” U.S.S.G.

§ 4A1.2(a)(1). Nevertheless, a “diversionary disposition resulting from a finding

or admission of guilt . . . in a judicial proceeding” merits one criminal-history

point under § 4A1.1(c), even where a conviction was not formally entered.

U.S.S.G. § 4A1.2(f). Sentences imposed where the adjudication of guilt was

withheld are not “prior sentences,” as defined in § 4A1.2(a)(1), because that

provision requires an adjudication of guilt. United States v. Rockman, 

, 813 (11th Cir. 1993). In Rockman, although the sentence, which was based

on a nolo contendere plea, did not constitute a “prior sentence” under the

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Guidelines, it was a “diversionary disposition” under § 4A1.2(f) that was properly

included in the criminal history calculation under § 4A1.1(c). 

      Georgia’s First Offender Act provides that:

      Upon a verdict or plea of guilty or a plea of nolo contendere, but
      before an adjudication of guilt, in the case of a defendant who has not
      been previously convicted of a felony, the court may, without
      entering a judgment of guilt and with the consent of the defendant:
            (1) Defer further proceeding and place the defendant on
                   probation as provided by law; or
            (2) Sentence the defendant to a term of confinement as
                   provided by law.

O.C.G.A. § 42-8-60(a) (emphasis added). Defendants sentenced under the Act are

discharged without court adjudication of guilt when, inter alia, they are released

from confinement. 

      We have held that a district court did not err by imposing criminal-history

points where the defendant’s prior conviction was under Georgia’s First Offender

Act. United States v. Barner, 

, 1253 (11th Cir. 2009). There, we

noted that the Guidelines mandate the imposition of criminal-history points, even

if doing so undermines the purposes of the First Offender Act. 

United States v. Shazier, we held that a pardon for the defendant, who had been

convicted and then served a six-month sentence of imprisonment, did not

constitute a diversionary disposition. Shazier, 

, 1319-20 (11th Cir.



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1999). There, we held that the criminal-history points were properly imposed

because, inter alia: (1) § 4A1.1(c) states that it applies only to sentences not

already counted in subsections (a) or (b), but it does not remove any sentences that

are required to be counted under either of those subsections; and (2) the defendant

was not diverted from the judicial system within the meaning of § 4A1.2(f)

because he had to serve a six-month imprisonment sentence. 

      Here, the district court did not err by assessing 3 criminal-history points for

Brown’s guilty plea under the First Offender Act because he was ordered to serve

6 years of 15-year prison sentence. As § 4A1.1(a) assigns three points for any

sentence over one year and one month, Brown’s sentence properly merited the

three criminal-history points.

                                          III.

      Typically, we review the reasonableness of a sentence under a deferential

abuse of discretion standard. Gall v. United States, 

, 41, 

, 591, 

(2007). A sentence is procedurally reasonable if the

district court properly calculated the guideline range, treated the Guidelines as

advisory, considered the § 3553(a) factors, did not select a sentence based on




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clearly erroneous facts, and adequately explained the chosen sentence. 

128 S.Ct. at 597.




      Here, as discussed above, the district court did not err in its calculations of

the guideline range, either by imposing the serious-bodily-injury enhancement or

by imposing the three criminal-history points. Because the guideline range was

calculated correctly, the sentence was procedurally reasonable.

      Upon review of the entire record on appeal, and after consideration of the

parties’ appellate briefs, we affirm.

      AFFIRMED.




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