United States v. Grajeda , 259 F. App'x 673 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 19, 2007
No. 07-50075 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JESUS OMAR GRAJEDA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1258
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesus Omar Grajeda pleaded guilty to assault of a federal officer and was
sentenced, inter alia, to 27 months’ imprisonment. He challenges the sentence
on only one basis: an enhancement for causing bodily injury to that officer.
AFFIRMED.
I.
After illegally crossing into the United States, Grajeda was taken into
custody by United States Border Patrol Agents on 7 June 2006. At the Border
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-50075
Patrol station, during processing, Grajeda kicked one of the Agents in the
abdomen. As a result, the Agent suffered bruising and red marks.
On 29 September 2006, Grajeda pleaded guilty to assault of a federal
officer, in violation of 18 U.S.C. § 111. At sentencing, under the now advisory
guidelines, he received a two-level enhancement because the district court found
the assaulted Agent suffered bodily injury.
II.
As noted, Grajeda challenges only that enhancement, claiming the Agent
did not suffer a serious enough injury to warrant its application under Guideline
§ 2A2.4(b)(2). Although the guidelines are now advisory, in deciding whether the
sentence is reasonable, we review, inter alia, the district court’s fact-finding
underlying computing the guideline sentencing range; such review is only for
clear error. E.g., United States v. Charon, 442 F.3d 881, 886-87 (5th Cir.), cert.
denied, 127 S. Ct. 260 (2006).
Guideline § 2A2.4(b)(2) provides: one whose offense involves bodily injury
to the victim shall receive a two-level enhancement. The guidelines define bodily
injury 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).
The presentence investigation report (PSR) recommended the bodily-injury
enhancement because Grajeda “kicked and struck the agent on the right side of
his chest causing bruising and pain”. The district court, in agreement with the
PSR, found Grajeda inflicted bodily injury on the Agent, as demonstrated by the
court’s statement in determining the guideline sentencing range: “He gets the
added 3 levels because [kicking the Agent] involved physical contact and he gets
added [sic] 2 levels because he inflicted bodily injury, and then he gets 2 off for
acceptance [of responsibility]”. (Emphasis added.)
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No. 07-50075
The district court may adopt the recitation of facts in the PSR, provided
there is sufficient basis for these facts and defendant adduces no rebuttal
evidence. E.g., United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). The
defendant bears the burden of proving that the district court should not rely on
the PSR. E.g., United States v. Betancourt, 422 F.3d 240, 248 (5th Cir. 2005).
In this instance, the PSR provided sufficient information to support the bodily-
injury enhancement, and Grajeda failed to sufficiently rebut the PSR.
Therefore, the district court’s bodily-injury finding was not clearly erroneous.
III.
For the foregoing reasons, the judgment is AFFIRMED.
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