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[DO NOT PUBLISH]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:
Case: 12-10303 Date Filed: 09/20/2012 Page: 2 of 8
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
2
Case: 12-10303 Date Filed: 09/20/2012 Page: 3 of 8
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,
678 F.3d 1262, 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.” Id. § 1B1.1, 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.” Id. § 1B1.1, 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. Id.
Aggravated sexual 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]
3
Case: 12-10303 Date Filed: 09/20/2012 Page: 4 of 8
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).”
Id.
§ 2242(1). 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.” Id. § 2246(2)(C). 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.” Id. § 16-6-22.2(a).
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
4
Case: 12-10303 Date Filed: 09/20/2012 Page: 5 of 8
Sentencing Guidelines. United States v. Acuna-Reyna,
677 F.3d 1282, 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). Id. § 4A1.1(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,
993 F.2d
811, 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
5
Case: 12-10303 Date Filed: 09/20/2012 Page: 6 of 8
Guidelines, it was a “diversionary disposition” under § 4A1.2(f) that was properly
included in the criminal history calculation under § 4A1.1(c). Id. at 813-14.
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. Id. § 42-8-62(a).
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,
572 F.3d 1239, 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.
Id. Further, in
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,
179 F.3d 1317, 1319-20 (11th Cir.
6
Case: 12-10303 Date Filed: 09/20/2012 Page: 7 of 8
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. Id. at 1319.
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,
552 U.S. 38, 41,
128 S.Ct.
586, 591,
169 L.Ed.2d 445 (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
7
Case: 12-10303 Date Filed: 09/20/2012 Page: 8 of 8
clearly erroneous facts, and adequately explained the chosen sentence. Id. at 51,
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.
8
