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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11222
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-00041-LJA-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER BELT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(August 27, 2019)
Before WILLIAM PRYOR, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
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Christopher Belt appeals his 84-month sentence for assaulting a correctional
officer in violation of 18 U.S.C. § 111(a)(1), (b). Belt argues that the district court
erred in calculating his guidelines because, under the rule of lenity, his
base-offense level should have been calculated under U.S.S.G. § 2A2.4, and not
§ 2A2.2, because both provisions are listed for convictions under 18 U.S.C. § 111
and § 2A2.4 would provide a lower base-offense level. Belt next argues that the
district court erred in granting a five-level enhancement for a victim who sustains a
“serious bodily injury” as opposed to a three-level enhancement for a “bodily
injury” because: (1) “bodily injury” contains any significant injury; (2) the statute
he pleaded guilty to only uses the phrase “bodily injury”; and, (3) the information
he pleaded guilty to only alleges that he did “inflict bodily injury.” Lastly, Belt
argues that his punishment on account of a kind of harm—that is, “serious bodily
injury”—was accounted for when his base-offense level was determined pursuant
to § 2A2.2(a) and when he received a five-level enhancement pursuant to
§ 2A2.2(b)(3)(B), and that further enhancing his guidelines under § 2A2.2(b)(7),
for a conviction under 18 U.S.C. § 111(b) for inflicting bodily injury, has the effect
of double counting the kind of harm.
I.
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We review the reasonableness of a sentence under a deferential
abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 41 (2007).
Reviewing reasonableness is a two-part process that requires us to ensure that
(1) the district court did not commit a significant procedural error, and (2) the
sentence is substantively reasonable.
Id. at 51.
Improper calculation of the guidelines range is considered a procedural
error.
Id. We review de novo the district court’s interpretation of the guidelines
and its application of the guidelines to the facts and review the district court’s
findings of fact for clear error. United States v. Campbell,
491 F.3d 1306, 1315
(11th Cir.2007). Factual findings are clearly erroneous when, although there is
evidence to support them, the appellate court, based on the record as a whole, is
left with the definite and firm conviction that a mistake has been committed.
United States v. Barrington,
648 F.3d 1178, 1195 (11th Cir. 2001) (quotation
omitted).
A conviction under 18 U.S.C. § 111(a)(1), (b) corresponds to either a
base-offense level of 14 under U.S.S.G. § 2A2.2(a), or a base-offense level of 10
under § 2A2.4(a). Section 2A2.2(a), “aggravated assault,” covers felonious
assaults that are more serious than other assaults because of the presence of an
aggravating factor, for example, serious bodily injury or the intent to commit
another felony. U.S.S.G. § 2A2.2, comment. (n.1), background. “Serious bodily
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injury” is further defined as an injury requiring medical intervention such as
surgery.
Id. at (n.1) (cross referencing § 1B1.1, comment. (n.1(L))). Section
2A2.4, “obstructing or impeding officers,” does not incorporate the possibility that
the defendant may create a substantial risk of serious bodily injury and provides
that reckless endangerment should be applied if no higher guideline adjustment is
applicable for such conduct. U.S.S.G. § 2A2.4, comment. (n.2). The guidelines
commentary is binding on courts unless it violates the Constitution or a federal
statute or is an inconsistent or plainly erroneous interpretation of the guideline.
United States v. Birge,
830 F.3d 1229, 1232 (11th Cir. 2016).
Here, Belt satisfied the requirements for the guidelines section that covers
more serious felonious assaults because the record supports the finding of
aggravating factors. First, as stated in the undisputed facts of the PSI, and not
contested by Belt, Wakefield’s injury required surgery, which qualified the injury
as a “serious bodily injury.” U.S.S.G. § 1B1, comment. (n.1(L)). Also, as stated in
the undisputed facts of the PSI, and not contested by Belt, the assault occurred
while Belt intended to commit a separate felonious assault on his fellow inmate.
As such, Belt satisfied the requirements of the guidelines provision that punishes
more serious felonious assaults. See U.S.S.G. § 2A2.2, comment. (n.1). While
Belt argues that he also satisfied § 2A2.4, that section does not adequately capture
the facts and circumstances of the case, and the commentary to § 2A2.4 intends for
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a higher guideline to apply in situations that involve serious bodily injury. See
U.S.S.G. § 2A2.4, comment. (n.2). Accordingly, the district court did not clearly
err in determining that Belt’s base-offense level should be calculated pursuant to §
2A2.2(a).
II.
Section 2A2.2(b)(3) of the guidelines increases a defendant’s offense level
according to the seriousness of the victim’s injury. The offense level is increased
by three for a “bodily injury,” defined as “any significant injury,” and by five for a
“serious bodily injury,” defined as one that requires medical intervention such as
surgery. U.S.S.G. §§ 1B1.1, comment. (n.1(B), (L)); 2A2.2(b)(3)(A), (B).
Moreover, we interpret a guideline enhancement consistent with its text and related
commentary. United States v. Inclema,
363 F.3d 1177, 1180 (11th Cir. 2004).
Here, as stated in the undisputed facts of the PSI, and not contested by Belt,
the victim’s injury required surgery, which qualified the injury as a “serious bodily
injury.” U.S.S.G. § 1B1, comment. (n.1(L)). While Belt argues that the injury
here is captured by the definition of bodily injury as “any significant injury,” such
a determination would read out all of the more severe types of injuries found in §
2A2.2(b)(3)(B)-(E). As the severity of the penalty reflects the severity of the
injury, it is clear from the text and commentary that the enhancement corresponds
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to the seriousness of the injury; here, a “serious bodily injury,” due to the necessity
of surgery. See
Inclema, 363 F.3d at 1180. Accordingly, the district court did not
clearly err in determining that Belt’s guidelines should be enhanced by five
because the victim sustained a “serious bodily injury.”
III.
We review de novo a district court’s rejection of a double-counting
challenge under the sentencing guidelines. United States v. Cubero,
754 F.3d 888,
892 (11th Cir. 2014). Impermissible double counting results when a guideline
provision is used to increase a defendant’s punishment in a way that has already
been accounted for by another guideline provision.
Id. However, double counting
is permitted when the Sentencing Commission intended that result and when the
relevant guideline provisions address separate concepts.
Id. We presume that,
outside explicit contrary instructions, the Sentencing Commission intended
separate guideline sections to apply cumulatively.
Id.
Here, there is every indication that the Sentencing Commission intended the
guideline provisions in question to apply cumulatively, and that this is not
impermissible double counting because each enhancement accounts for a different
aspect of the offense conduct. See
Cubero, 754 F.3d at 894. Indeed, the
provisions here focus on different aspects of the offense conduct: application of
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U.S.S.G. § 2A2.2 applies to the type of conduct—for example, the use of a deadly
weapon, assault resulting in serious bodily injury, strangling, or suffocating, or the
intent to commit another felony; application of § 2A2.2(b)(3) focuses on the effect
of the conduct and values the extent of the victim’s injury; and, § 2A2.2(b)(7)
relates back to the criminal statute, which focuses on who Congress intended to
protect and the seriousness society places on the violation. As such, this Court
presumes that the intricately-established, separate guidelines sections were
intended to apply cumulatively. See
Cubero, 754 F.3d at 894. Accordingly, the
district court did not err in rejecting the double-counting challenge under the
sentencing guidelines.
AFFIRMED.
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