Filed: Nov. 06, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 6, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 05-30999 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OTTO HENDRICK HORSTING, III, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Louisiana (No. 1:05-CR-10006) _ Before KING, BENAVIDES, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge:* Otto Horsting pleaded
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 6, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 05-30999 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OTTO HENDRICK HORSTING, III, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Louisiana (No. 1:05-CR-10006) _ Before KING, BENAVIDES, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge:* Otto Horsting pleaded ..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 05-30999
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OTTO HENDRICK HORSTING, III,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(No. 1:05-CR-10006)
___________________________________________________
Before KING, BENAVIDES, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
Otto Horsting pleaded guilty to one count of assault with a deadly weapon at the United
States penitentiary in Pollack, Louisiana, in violation of 18 U.S.C. § 113(a)(3). The district court
sentenced him to 100 months imprisonment. Horsting appeals two factual findings made in
connection with the district court’s calculation of his sentence; he also challenges the reasonableness
of the sentence. For the reasons that follow, we affirm.
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and
is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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I. FACTS AND PROCEEDINGS
Horsting was charged, along with William Schroeder and Scott Hudson, with two counts of
assault with a deadly weapon in violation of 18 U.S.C. § 113(a)(3). Count one was for the assault
of Tyrus Green, and count two was for the assault of Timothy Hall. Horsting pleaded guilty to count
two.
In support of the guilty plea, FBI Agent Robert Ruby testified that white inmates Horsting,
Schroeder, and Hudson were in a cell while black inmates Green and Hall were being escorted down
the hall. The cell door had been manipulated to appear closed but was not. When Green and Hall
passed, Horsting, Schroeder, and Hudson exited the cell, armed with prison-made knives that were
crafted from hard plastic and were approximately ten to twelve inches long. Horsting attacked Hall,
who sustained defensive type wounds to the arms and facial area, including one of his ears and his
nose. During the assault, Schroeder yelled, “Get their eyes.” Green lost vision in one of his eyes as
a result of his injuries, but Hall’s eyes were not injured.
According to the Presentence Investigation Report (“PSR”), Horsting was suspected of being
involved with a gang known as the Dirty White Boys, a group advancing white supremacist ideas.
Green stated that the assailants generally were shouting racial slurs during the assault. The PSR also
stated that Hall, whom Horsting attacked, “received numerous puncture wounds to the head, neck,
face and arms” but made a full recovery after treatment at the penitentiary medical facility.
The PSR calculated the base offense level at fourteen on the basis of the aggravated assault.
Two levels were added because the assault required more than minimal planning; four levels were
added for use of a dangerous weapon; four levels were added for the degree of bodily injury; and
three levels were added for the selection of the victims based on their race. The resulting offense
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level of twenty-seven was reduced by three for acceptance of responsibility. Based on the offense
level of twenty-four and a criminal history category of VI, the sentencing guidelines range was 100
to 125 months imprisonment.
Horsting filed a motion for a downward departure on the basis that he committed the offense
under coercion and duress. The district court denied the motion, sentenced Horsting to 100 months
imprisonment, and concluded that there was “no reason to deviate from the sentence called for by
application of the guidelines inasmuch as the facts as found are of a kind contemplated by the
Sentencing Commission, and further consideration of the factors in 18 U.S.C. § 3553(a) yields no
other compelling considerations not to apply the guidelines in this case.” Horsting timely appeals,
challenging the factual findings under U.S.S.G. §§ 2A2.2 and 3A1.1 and the reasonableness of the
sentence.
II. STANDARD OF REVIEW
After Booker as before, the district court’s application of the guidelines is reviewed de novo.
United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). Findings of fact used in the calculation
of a sentence are reviewed for clear error.
Id. “A factual finding is not clearly erroneous as long as
it is plausible in light of the record as a whole.” United States v. Gonzales,
436 F.3d 560, 584 (5th
Cir. 2006) (internal quotation omitted). Additionally, we review the district court’s ultimate
sentencing decision for reasonableness. United States v. Caldwell,
448 F.3d 287, 290 (5th Cir. 2006).
If the district court sentences the defendant within a properly calculated guidelines range, that
sentence is presumptively reasonable.
Id. (citing United States v. Alonzo,
435 F.3d 551, 553–54 (5th
Cir. 2006)).
III. DISCUSSION
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A. Bodily Injury Enhancement
U.S.S.G. § 2A2.2 provides for a base offense level of fourteen for aggravated assault. The
provision further permits an increase in the offense level based on the degree of bodily injury.
Specifically, the offense level is to be increased by three levels for bodily injury and five for serious
bodily injury. U.S.S.G. § 2A2.2(b)(3)(A),(B). Where the degree of bodily injury falls between that
of bodily injury and serious bodily injury, the guidelines provide for an increase of four levels.
U.S.S.G. § 2A2.2(b)(3)(D). The PSR calculated Horsting’s offense level using this intermediate four-
level increase.
The guidelines define “bodily injury” and “serious bodily injury.” See U.S.S.G. § 1B1.1. cmt.
n.1. “Bodily injury” is defined 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.” U.S.S.G. § 1B1.1. cmt.
n.1(B). “Serious bodily injury” is defined as “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.” U.S.S.G. § 1B1.1. cmt.
n.1(L).
The district court adopted the PSR’s offense level calculation, finding the four-level addition
“certainly appropriate in this particular case based on the facts as presented as we all understand them
on the day of the incident.” Horsting argues that the facts stated in the PSR do not suggest a degree
of injury greater than bodily injury. Horsting states that facts only show that the wounds were
“painful and obvious,” and he points out that Agent Ruby testified at the guilty plea hearing that
Hall’s wounds were defensive and not life-threatening. Horsting also references Hall’s Inmate Injury
Assessment which described Hall’s wounds as lacerations, not stab wounds as in the PSR. At
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sentencing, defense counsel suggested that Hall’s hospitalization for the injuries was probably only
protocol and did not reflect the seriousness of the injury.
If bodily injury is defined as an injury that is “painful and obvious” and requires medical
attention, and if serious bodily injury is defined as an injury that is “extremely painful” and requires
surgery or hospitalization, it is plausible based on the record that Hall’s injuries fell between these
parameters. The record shows that Hall sustained numerous wounds to his face and arms. Whether
they are described as puncture wounds in the PSR or as lacerations in the Inmate Injury Assessment,
medical attention was required, and Hall was taken to the hospital. The district court’s determination
that these wounds were more than merely painful and obvious is plausible since they resulted from
a stabbing. Cf. United States v. Jefferson, 258 F.3d 405, 413–14 (5th Cir. 2001) (finding no clear
error when the district court determined that bruises, scrapes, and a “knot” on the head constituted
“bodily injury” under § 2A2.2); United States v. Le, 178 F. App’x 386, 388 (5th Cir. 2006)
(unpublished) (finding no clear error when the district court determined that a stab wound requiring
two layers of sutures constituted “serious bodily injury” under § 2A2.2). Horsting urges that these
wounds were not life threatening, but the four-level enhancement does not address life threatening
injury; another provision does. See U.S.S.G. § 2A2.2(b)(3)(C) (providing for a seven-level
enhancement where the injury is life threatening). The district court’s finding was not clearly
erroneous.
B. Enhancement for Racially Motivated Attack
Under U.S.S.G. § 3A1.1(a), if the district court determines beyond a reasonable doubt that
the defendant intentionally selected a victim based on the victim’s race, then the offense level is to
be increased by three levels. The district court applied this victim-related enhancement. Horsting
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argues that Schroeder and Hudson orchestrated the attack because of the victims’ race but that his
motivation was only self-preservation; he contends that he participated in the attack due to coercion
and duress. He points to Schroeder’s sentencing hearing, a transcript of which he attached as an
exhibit to his objections to the PSR, during which Schroeder stated that Horsting would participate
“period.” Horsting also emphasizes that nothing in the record suggests that he would have carried
out the attack in the absence of the two co-attackers.
At sentencing, the government conceded that, among the three defendants, “the case of
proving intent or the racial motivation is weakest” for Horsting. The government continued,
however, noting that the evidence was clear that the attack was racially motivated and that, as the
video showed, Horsting actively participated in the racially-motivated event. The district court
recognized that the attack was “entirely a racially motivated incident from its beginning planning to
its end result.” The district court found Horsting’s argument that he was coerced unpersuasive
because the video showed that the attack lasted a “substantial period of time” and that at no point did
Horsting withdraw from the attack. The district court stated, “[Horsting] could have stopped sooner.
He could have done a number of things that would indicate he did not intend the consequences of the
planning and the execution of this assault.”
We conclude that the district court’s finding that Horsting’s attack was racially motivated
beyond a reasonable doubt was plausible in light of the record as a whole. Horsting and the other
attackers were likely involved with a gang called the Dirty White Boys, and the attackers were
shouting racial slurs during the assault. According to the PSR, Horsting was aware of the motivation
for the assault. Horsting does not dispute that the attack was planned for retaliatory reasons against
black inmates. As the parties discussed at sentencing, the prison video showed that Horsting actively
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participated in the attack. The district court emphasized that Horsting did not retreat or put down
his weapon even while the guards called for additional security as reinforcement to stop the attacks.
The district court’s finding that Horsting’s attack was racially motivated did not amount to clear
error.
C. Reasonableness of Sentence
Horsting argues that his sentence is unreasonable in light of the 18 U.S.C. § 3553(a) factors,
particularly noting the characteristics of the defendant and circumstances of the offense. Horsting
discusses his history of mental health problems; he also points out that Schroeder, at Schroeder’s
sentencing, credited Horsting and Hudson with preventing the attacks from becoming worse because
Schroeder admitted that he would have killed the victims were he able. Horsting quotes the provision
of 18 U.S.C. § 3553(a) instructing a court to “impose a sentence sufficient, but not greater than
necessary” to comply with the purposes set forth in the statute. He argues that a sentence under 100
months imprisonment would be sufficient to comply with the purposes of the statute, suggesting that
his mental health history and his role in the offense provide reasons for a below-guidelines sentence.
As discussed under the first two issues, Horsting has not demonstrated that the sentence was
improperlycalculated, and, where the district court sentences a defendant within a properly calculated
guidelines range, the sentence is presumptively reasonable. United States v. Candia, 454 F.3d 468,
473 (5th Cir. 2006). Where a sentence is imposed within a properly calculated range, it will be rare
for this court to say that a sentence is unreasonable. United States v. Johnson,
445 F.3d 793, 798
(5th Cir. 2006).
Horsting’s case is not one of the rare instances where we will find the sentence, which falls
within a properly calculated guidelines range, to be unreasonable. At sentencing, the district court
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stated that it found no reason to deviate from the sentence called for by application of the guidelines
and that consideration of the § 3553(a) factors also offered no reason to deviate from the guidelines.
The sentence was at the low end of the range at 100 months. Horsting’s argument that the district
court insufficiently considered his mental health history and role in the offense does not overcome the
presumption of reasonableness where the district explicitly stated that it considered the § 3553(a)
factors and exercised reasonable discretion in the weight afforded to those factors.
IV. CONCLUSION
The district court’s factual findings were not clearly erroneous, and the ultimate sentencing
decision was reasonable. The judgment of the district court is AFFIRMED.
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