United States v. Villela-Alberto , 285 F. App'x 98 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4204
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAUL VILLELA-ALBERTO,
Defendant - Appellant.
No. 07-4205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ENRIQUE CASTELLANO,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:06-cr-00001)
Submitted: June 13, 2008 Decided: July 21, 2008
Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald M. Williams, Jr., WILLIAMS LAW OFFICE, PLC, Pennington Gap,
Virginia; Joseph W. Rasnic, Jonesville, Virginia, for Appellants.
John L. Brownlee, United States Attorney, Anthony P. Giorno,
Assistant United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Saul Villela-Alberto and Enrique Castellano, two Central
American inmates at the United States Penitentiary in Lee County,
Virginia, appeal their convictions and sentences following a jury
trial for assaulting another inmate resulting in serious bodily
injury to the victim, in violation of 18 U.S.C. § 113(a)(6) (2000).
Castellano also appeals his conviction and sentence for assaulting
another inmate with a dangerous weapon, namely, a shod foot, with
intent to do bodily harm and without just cause or excuse, in
violation of 18 U.S.C. § 113(a)(3) (2000)*. We affirm.
(I) Sufficiency of the Evidence
Villela-Alberto and Castellano argue that the evidence
presented at trial was insufficient to establish that the victim,
Alfredo Uribe, suffered a “serious bodily injury” within the
statutory definition referenced in § 113(b)(2). They argue that a
registered nurse’s testimony regarding her examination and
assessment of Uribe’s injuries does not establish that Uribe
suffered extreme physical pain because she did not see Uribe for
any follow-up examinations or treatment after the day of the
assault and could not say whether Uribe actually received any
further treatment.
*
Villela-Alberto was found not guilty of violating
§ 113(a)(3).
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When a defendant challenges the sufficiency of the
evidence, we consider whether substantial evidence, viewed in the
light most favorable to the Government, supports the jury’s
verdict. Burks v. United States, 437 U.S. 1, 17 (1978); United
States v. Stewart, 256 F.3d 231, 249 (4th Cir. 2001).
“[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996). We do
not review the credibility of witnesses and assume the jury
resolved all contradictions in the testimony in favor of the
Government. United States v. Sun, 278 F.3d 302, 313 (4th Cir.
2002).
The term “serious bodily injury,” as used in § 113(a)(6),
“means bodily injury which involves: (A) a substantial risk of
death; (B) extreme physical pain; (C) protracted and obvious
disfigurement; or (D) protracted loss or impairment of the function
of a bodily member, organ, or mental faculty.” 18 U.S.C.
§§ 113(b)(2), 1365(h)(3).
Here, a registered nurse who examined Uribe after the
assault testified that Uribe suffered what she considered to be
severe facial trauma that would cause severe pain, and that a
doctor ordered follow-up treatment consisting of hourly icing of
Uribe’s wounds for three days, Tylenol, and two days of bed rest.
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The jury also viewed a video recording of the assault upon Uribe
that allowed the jury to observe the injuries Uribe sustained.
Although the Government did not present evidence of the follow-up
treatment or assessments Uribe actually received, when the evidence
is viewed in the light most favorable to the Government,
substantial evidence supports the jury’s verdict. A reasonable
finder of fact could have accepted the nurse’s testimony, in
conjunction with the video showing Uribe’s injuries, as adequate
and sufficient to support a conclusion that Uribe suffered extreme
physical pain. There was no testimony that contradicted the
nurse’s assessment of Uribe’s injuries and no suggestion that her
testimony was not credible.
(II) Denial of Request for Jury Instruction on Self-Defense
Villela-Alberto and Castellano argue that the district
court abused its discretion in not instructing the jury as to self-
defense. They contend that they were concerned for their safety
because Uribe is a member of the Latin Kings, a group that
previously carried out acts of violence against Central American
inmates such as themselves, and that Uribe became agitated and
threatened Castellano when they questioned him about his
affiliation, causing them to reasonably act in self-defense under
the circumstances.
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We review a district court’s decision not to give a jury
instruction for abuse of discretion. United States v. Seidman, 156
F.3d 542, 551 (4th Cir. 1998). A requested instruction as to a
defense should be given if it has an evidentiary foundation and
accurately states the applicable law. United States v. Sloley, 19
F.3d 149, 153 (4th Cir. 1994).
We find that the district court did not abuse its
discretion in declining to give the requested self-defense
instruction because it did not have an adequate evidentiary
foundation. The jury heard testimony, which was corroborated by
videotape evidence, that Uribe was standing with his hands behind
his back and did not make any threatening movement towards Villela-
Alberto or Castellano before they assaulted him. The jury also
heard testimony by a legal instruments examiner who served as a
translator regarding Villela-Alberto’s statements to investigators
that Uribe cursed at him and threatened him before the assault
after Villela-Alberto and Castellano questioned Uribe about his
membership in the Latin Kings. Although threatening words alone
are not sufficient evidence for a jury to conclude that a defendant
acted in self-defense under the requested instruction, the
appellants argue that Uribe’s verbal threats were sufficient to
make them believe they were in danger due to the context of other
assaults by members of the Latin Kings upon other Central American
inmates. We conclude, however, that because Uribe was alone and
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confronted by two inmates at the time of the assault, there was not
an adequate evidentiary foundation for a reasonable finder of fact
to believe that Villela-Alberto and Castellano believed they were
in imminent danger of serious bodily harm from Uribe, even
considering the previous assaults.
(III) Enhancement for Use of a Dangerous Weapon
Villela-Alberto argues that the district court erred in
enhancing his advisory guidelines offense level by four levels
based upon use of a dangerous weapon, pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 2A2.2(b)(2) because the Government did
not provide any evidence that Villela-Alberto kicked Uribe and it
was not reasonably foreseeable for Villela-Alberto that
Castellano’s use of his prison-issued boots to kick Uribe would
constitute use of a dangerous weapon.
Under the guidelines, a “dangerous weapon” is “an
instrument capable of inflicting death or serious bodily injury.”
USSG § 1B1.1, comment. (n.1(D)). “[A]n object need not be
inherently dangerous to be a dangerous weapon. Rather, innocuous
objects or instruments may become capable of inflicting serious
injury when put to assaultive use.” United States v. Sturgis, 48
F.3d 784, 787 (4th Cir. 1995).
We hold that the district court did not err in finding
that a preponderance of the evidence showed that Villela-Alberto
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aided and abetted Castellano in his assault upon Uribe with a
dangerous weapon, and that Castellano’s conduct was reasonably
foreseeable to Villela-Alberto. As described, the jury found,
based upon sufficient evidence presented at trial, that Villela-
Alberto and Castellano inflicted serious bodily injuries upon
Uribe, in large part through Castellano’s conduct of kicking Uribe
with his prison-issued hard-toed boots. The Government also
presented evidence that Villela-Alberto took part in all phases of
the assault upon Uribe, including during the time when Castellano
was kicking Uribe with his boots. Furthermore, the Government
presented testimony regarding Villela-Alberto’s statements to
investigators about their assault upon Uribe, including his
statement that they wanted to “make him bleed a little.”
Accordingly, the district court’s finding that Villela-Alberto
reasonably could have foreseen Castellano’s use of the boots as a
dangerous weapon against Uribe is not clearly erroneous.
(IV) Enhancement for Obstruction of Justice
Castellano argues that the district court erred in
enhancing his advisory guidelines offense level for obstruction of
justice. He denies writing the letter to Uribe that served as the
basis for the obstruction enhancement and contends that, in any
event, the letter only encouraged Uribe to testify, not to testify
untruthfully. He seeks to bolster his argument that the letter
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could not have been intended to obstruct justice by noting that a
copy of the letter was mailed to his attorney. The letter reads,
in part:
Honestly, the only way I can have a chance of beating
this bullshit case is if you say to my lawyer that you
had a feeling that something was gonna go down when I
approached you and you was gonna make your move against
me but I beat you to it. It is the only way because even
though you didn’t have any fractures the D.A. is making
it look like you went thru (sic) surgery or some shit.
Plus they took a picture of you with blood all over your
face and they are making shit look ugly.
We hold that the district court did not err in finding
that Castellano authored the letter in an effort to improperly
direct Uribe to testify falsely as to the possible justification
for the attack. The letter discusses the evidence against
Castellano and encourages Uribe to testify that he threatened
Castellano and provoked the assault. Contrary to Castellano’s
argument, the letter requests that Uribe testify as to specific
facts, rather than generally requesting that he testify truthfully.
Although Uribe denied receiving any letters from Castellano and
generally refused to provide any testimony, the Government also
presented a letter Uribe wrote to Castellano that shows his
awareness of Castellano’s request that Uribe help him through his
testimony. Accordingly, the district court did not clearly err in
finding that a preponderance of the evidence supported the
enhancement for obstruction of justice.
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For the reasons stated above, we affirm the appellants’
convictions and sentences. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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