Filed: Sep. 10, 2020
Latest Update: Sep. 10, 2020
Summary: RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0302p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, + Plaintiff-Appellee, ¦ ¦ > No. 19-6011 v. ¦ ¦ ¦ ERIC FLORES, ¦ Defendant-Appellant. ¦ + Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville. No. 7:18-cr-00021-3—Robert E. Wier, District Judge. Decided and Filed: September 10, 2020 Before: SUHRHEINRICH, LARSEN, and READLER, Circuit Jud
Summary: RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0302p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, + Plaintiff-Appellee, ¦ ¦ > No. 19-6011 v. ¦ ¦ ¦ ERIC FLORES, ¦ Defendant-Appellant. ¦ + Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville. No. 7:18-cr-00021-3—Robert E. Wier, District Judge. Decided and Filed: September 10, 2020 Before: SUHRHEINRICH, LARSEN, and READLER, Circuit Judg..
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RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0302p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 19-6011
v. │
│
│
ERIC FLORES, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville.
No. 7:18-cr-00021-3—Robert E. Wier, District Judge.
Decided and Filed: September 10, 2020
Before: SUHRHEINRICH, LARSEN, and READLER, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Steven S. Nolder, SCOTT & NOLDER CO. LPA, Columbus, Ohio, for Appellant.
Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for
Appellee.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Eric Flores, a federal inmate, was convicted for his
role in the brutal stabbing of a fellow inmate. In calculating Flores’s Sentencing Guidelines
range, the district court increased the base offense level by five pursuant to U.S.S.G.
§ 2A2.2(b)(3)(B) because the victim suffered “serious bodily injury.” Seeing no error in that
conclusion, we AFFIRM.
No. 19-6011 United States v. Flores Page 2
BACKGROUND
A fight broke out between inmates inside Big Sandy federal penitentiary. When another
inmate attempted to intervene, two other inmates—one of whom was Flores—attacked the
intervenor, stabbing him at least six times with prison-made “shanks.” As prison guards restored
order, they heard the stabbing victim shouting “help me, help me,” expressing the belief that he
was dying. The guards observed large visible wounds on the victim’s back, leg, and hand, with
blood soaking through his clothing and pooling at his feet. The prison nurse later observed the
same wounds to the victim’s back, leg, and hand.
The victim was transported to a nearby hospital to treat large lacerations on his back, two
smaller cuts to his side, one large cut on his hand, and another on his calf. CT scans showed that
the victim’s left shoulder blade was fractured by one of the punctures. The scans also revealed
deep bruising caused by internal bleeding as well as air pockets introduced by the puncture
wounds. Chemical testing indicated that the victim had a lower than average red blood cell
count, hemoglobin concentration, red blood cell proportion, and red blood cell distribution width,
consistent with significant blood loss.
Doctors performed five laceration repairs. As the lacerations were bleeding beneath the
skin, each required sutures, with some requiring “complex” multi-layer-deep sutures. Because
the wounds were made by non-sterile shanks, the victim was screened for and given intravenous
medicine to prevent sepsis. The victim was also prescribed and administered two types of
narcotic pain killers: an oral opioid and an intravenous morphine-analogue. During this period,
medical records revealed that the victim indicated his pain levels were between 6 and 8 out of 10.
Flores was indicted by a grand jury for assaulting the victim with a dangerous weapon, in
violation of 18 U.S.C. § 113(a)(3). The victim, however, refused to cooperate with the
government, and at trial testified for the defense, denying that Flores attacked him and
characterizing his injuries as “minor” and his wounds “superficial.” At the same time, he
conceded during cross-examination that prisoners who cooperate with or testify for the
government are at risk of being assaulted or killed. The jury convicted Flores. Over Flores’s
No. 19-6011 United States v. Flores Page 3
objection, the district court imposed a five-level sentencing enhancement because the victim
suffered “serious bodily injury,” and sentenced Flores to 110 months. Flores timely appeals.
ANALYSIS
We review de novo a district court’s legal interpretation of the Sentencing Guidelines,
and we review for clear error a district court’s factual conclusions. United States v. Thomas, 933
F.3d 605, 608 (6th Cir. 2019). As thoughtfully explained in Thomas, there appears to be some
debate over whether we employ clear error or de novo review when it comes to reviewing a
district court’s application of the Sentencing Guidelines to the facts.
Id. at 608–10 (discussing
the “broad disagreement” in our Circuit and others over the applicable standard of review).
Thomas ultimately left reconciling these conflicting standards for another day, as Thomas’s
appeal failed under even the more favorable de novo standard. So too here. Flores’s challenge
to the “serious bodily injury” enhancement similarly fails under either standard.
Id. at 610;
United States v. Parsons, 798 F. App’x 922, 927 (6th Cir. 2020) (not reaching the legal standard
because the district court did not err in applying the Sentencing Guidelines).
We start, as always, with the Guideline’s text. Section 2A2.2(b)(3)(B) instructs district
courts to apply a five-level enhancement to aggravated assault convictions if the assault caused
“serious bodily injury.” U.S.S.G. § 2A2.2(b)(3)(B). The commentary to § 2A2.2 explains that
the definition of “serious bodily injury” is found in the application note to § 1B1.1. U.S.S.G.
§ 2A2.2 cmt. n.1. That application note in turn defines “serious bodily injury” 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, a definition that accords with dictionary
definitions of the term “serious” as used in the context of an injury. Serious, Oxford English
Dictionary (Online Ed. 2020) (“Of an injury, condition, etc.: significant or worrying; giving
cause for anxiety or concern; grave, threatening, or dangerous.”); Serious, Merriam-Webster
(Online Ed. 2020) (“[H]aving important or dangerous possible consequences . . . a serious
injury.”).
No. 19-6011 United States v. Flores Page 4
Seeing no inconsistency between the commentary and the Guideline it interprets, we
apply the commentary’s interpretation of the Guideline. United States v. Havis, 927 F.3d 382,
386 (6th Cir.) (en banc) (per curiam), reconsideration denied,
929 F.3d 317 (6th Cir. 2019).
Adhering to that definition, we ask whether Flores caused the victim extreme pain, protracted
impairment of a body part, or conditions requiring medical intervention. U.S.S.G. § 1B1.1 cmt.
n.1. And as this definition uses the disjunctive “or,” the Guideline applies where the victim
suffered any one of these ailments. See Encino Motorcars, LLC v. Navarro,
138 S. Ct. 1134,
1141 (2018) (holding that a Fair Labor Standards Act exemption applied to each listed activity in
a provision individually where the activities were joined in the list by “or”); see also A. Scalia &
B. Garner, Reading Law: The Interpretation of Legal Texts 116–19 (2012) (explaining that when
a prohibition uses a disjunctive “or,” “none of the listed things is allowed”).
Extreme Pain. As the district court aptly noted, “common sense” strongly suggests that
one who is repeatedly stabbed and suffers deep stab wounds would typically experience a large
amount of pain. Corroborating that common sense understanding here is eyewitness testimony.
A prison guard testified that following the stabbing, the victim was shouting for help, appeared
to be in “a lot of pain,” and declared his death as imminent. Further confirming the victim’s
significant level of pain, he was prescribed two narcotics for pain management during his
ensuing hospital stay. Throughout the ordeal, the victim indicated that his pain levels were on
average at 7 out of 10, with a high of 8. To be sure, the reliability of this last metric may suffer
from the fact that individuals, depending upon their experiences and disposition, may disagree
over what level of pain amounts to a “10.” But taking all of these indicators together, it is more
than fair to say that the victim experienced “extreme pain” as a result of Flores’s assault, thereby
justifying the sentencing enhancement.
Medical Intervention. The victim’s need for significant medical intervention
independently supports imposition of the § 2A2.2(b)(3)(B) enhancement. The victim required
numerous sutures to close his stab wounds and treat his extensive blood loss, including a series
of two-layered sutures underneath his skin. That level of manipulation and mending reasonably
qualifies as “surgery,” one of the illustrative conditions sufficient to satisfy the “serious bodily
injury” benchmark for imposing the enhancement. U.S.S.G. § 1B1.1 cmt. n.1 (defining “serious
No. 19-6011 United States v. Flores Page 5
injury” as, among other things, “injury . . . requiring medical intervention such as surgery”);
Suture, Oxford English Dictionary (Online Ed. 2020) (“Surgery. The joining of the lips of a
wound . . . by stitches . . . .”). And this conclusion, it bears noting, accords with our
interpretation of the “serious bodily injury” enhancement for robbery offenses, see U.S.S.G. §
2B3.1(b)(3), as well as the Ninth Circuit’s interpretation of the enhancement in the same
aggravated assault setting. See United States v. Clay, 90 F. App’x 931, 933 (6th Cir. 2004) (“Mr.
Lamar was taken to a hospital because his injuries required medical intervention in the form of
sutures. Medical intervention of this type qualifies Mr. Lamar’s injuries as serious under
§ 1B1.”); United States v. Corbin, 972 F.2d 271, 272 (9th Cir. 1992) (describing argument that
two-layer suture closure was not surgery as “simply lack[ing] merit” and
upholding § 2A2.2(b)(3)(B) enhancement); see also United States v. Le, 178 F. App’x 386, 388
(5th Cir. 2006) (upholding serious bodily injury enhancement where stabbing victim lost a “great
deal” of blood, experienced extreme pain, and required two-layer sutures to close wounds).
Resisting this outcome, Flores contests the district court’s decision to discount the
victim’s testimony supporting Flores. That the victim did not appear on behalf of the
government was curious, to say the least. So too was his ensuing testimony. For instance, the
victim denied Flores was the attacker in the face of contradictory video footage and eyewitness
accounts. And he denied he was bleeding through his clothes following the assault in the face of
graphic photos revealing otherwise. Perhaps, as the government suggests, the victim’s testimony
can be explained by a fear of retaliation or other concerns. Either way, in light of a mountain of
contradictory evidence, the district court did not err in giving that testimony little weight, and in
ultimately applying the enhancement.
CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.
