United States v. Grimes, Mario ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 22, 2007
Decided March 14, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3695
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois.
v.
No. 05 CR 30161
MARIO GRIMES,
Defendant-Appellant. Michael J. Reagan,
Judge.
ORDER
A jury found Mario Grimes, an inmate at the Federal Correctional Institution in
Greenville, Illinois, guilty of forcibly assaulting a correctional officer while that officer
was performing an official duty. See 18 U.S.C. § 111(a)(1). After concluding that the
correctional officer had suffered “bodily injury” as defined by the sentencing guidelines,
the district court applied a two-level increase to Grimes’s base offense level. See
U.S.S.G. § 2A2.4(b)(2). The district court calculated his guidelines imprisonment range
at 63 to 78 months and sentenced him to 72 months. Grimes appeals, arguing that the
evidence was insufficient to support his conviction and that the district court erred in
applying the two-level increase. We affirm the judgment of the district court.
No. 06-3695 Page 2
Grimes was assigned to the prison’s Special Housing Unit (SHU) after he was
caught fighting with another inmate. In SHU, he typically was confined to his cell
except during recreation time, or when he had visitors, or when he used the law
library. Whenever he was outside of his cell, Grimes was escorted by a correctional
officer. The officer who escorted Grimes to the recreation area on August 17, 2005,
reported that Grimes struck him multiple times, causing injury. As a result, Grimes
was charged in Count Six of a nine-count indictment with forcibly assaulting the
correctional officer in violation of § 111(a)(1). The other eight counts of that indictment
are not relevant to this appeal (Grimes pleaded guilty to seven of the counts and was
acquitted at trial on the eighth).
At trial, Correctional Officer Eric Walters testified that on the morning of
August 17, 2005, he arrived at Grimes’s cell to escort him to the recreation cage. While
watching Grimes get dressed, Walters observed him pick up an object from his
desk—which Walters believed to be some type of contraband—and conceal it inside the
front of his jumpsuit. Walters then cuffed Grimes’s hands behind his back, allowing
his shoulders and elbows to move freely. Rather than escort Grimes to the recreation
cage, however, Walters told him he would be strip-searched because he put something
in his jumpsuit. Grimes responded that he was not going to be searched and demanded
that Officer Walters take him back to his cell. Walters testified that, as he tried to lead
Grimes to the stairway going into the strip cells, Grimes became combative and broke
away. He then began swinging his elbows, striking Walters in the upper arms and
chest area while yelling, “Get . . . off me or I’m gonna bust you up!”
Officer Walters continued that Correctional Officer Michael Wright, who was
nearby when Grimes began striking Walters, helped subdue the prisoner and lead him
to a holding cell to be strip-searched. Both officers testified that, once they were inside
the cell, Grimes bent over and kicked backwards, striking Officer Walters on the left
side of his body in his upper stomach and lower chest. Officer Wright also testified
that Grimes was able to move his shoulders and elbows freely while handcuffed, that
he saw Grimes hit Walters with his elbow at least once, and that he observed Grimes
kick Walters while they were all in the holding cell together. As a result of Grimes’s
actions, Walters testified, he received a small bruise to his upper chest.
After the jury found him guilty, the probation officer who prepared the
Presentence Investigation Report (PSI) started with a base offense level of 10 for this
count. See U.S.S.G. § 2A2.4. The probation officer also recommended applying a three-
level increase because the offense involved bodily contact, id. § 2A2.4(b)(1), and a two-
level increase because Officer Walters suffered bodily injury during the assault, id.
§ 2A2.4(b)(2). Grimes objected to the two-level increase under § 2A2.4(b)(2) because, he
argued, the injury suffered by Walters did not qualify as a “bodily injury” as defined in
the commentary to U.S.S.G. § 1B1.1.
No. 06-3695 Page 3
The district court concluded that Officer Walters’s chest bruising was the type of
injury for which a person would ordinarily seek medical attention and denied Grimes’s
objection. Then, noting that Grimes had pleaded guilty to seven other counts before
the jury convicted him on Count Six, the court increased his highest offense level,
which was 15 for Count Six, by five levels under U.S.S.G. § 3D1.4. The court thus
determined that Grimes’s appropriate guidelines range was 63 to 78 months’
imprisonment based on a total offense level of 20 and his Category V criminal history.
After examining the aggravating and mitigating factors under § 3553(a), the court
ultimately sentenced him to 72 months’ imprisonment.
On appeal, Grimes first argues that the trial evidence was insufficient for a jury
to find beyond a reasonable doubt that he assaulted Officer Walters. When reviewing
challenges to the sufficiency of the evidence, we view all evidence in the light most
favorable to the government. United States v. Hale, 448 F.3d 971, 982 (7th Cir. 2006).
We will reverse a jury's verdict only if no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Id.; United States v.
Johnson, 437 F.3d 665, 675 (7th Cir. 2006). As we have often stated, defendants
challenging the sufficiency of the evidence at trial face a “nearly insurmountable”
hurdle. Hale, 448 F.3d at 982; United States v. Dillon, 150 F.3d 754, 758 (7th Cir.
1998); United States v. Teague, 956 F.2d 1427, 1433 (7th Cir. 1992).
To meet its burden of proof on the assault charge, the government had to show
that (1) Grimes forcibly assaulted a Federal Correctional Officer, (2) the victim was an
officer or employee of the United States and was performing an official duty at the time
of the assault, (3) Grimes acted knowingly, and (4) Grimes made actual physical
contact with the officer. See 18 U.S.C. § 111(a)(1); United States v. Valery, 437 F.3d
626, 630-33 (7th Cir. 2006). Grimes contends that the government failed to prove the
first and fourth elements because it would not have been possible for him to move his
elbows and shoulders while his hands were handcuffed behind his back. Furthermore,
Grimes argues, the government did not prove that he kicked a correctional officer
because Officers Walters and Wright testified inconsistently regarding which foot
Grimes used to kick Walters, and because he could not possibly have kept “sufficient
balance to maintain the footing necessary to kick someone behind his back” while
handcuffed.
At trial, however, Officers Walters and Wright testified that, even while
handcuffed, Grimes was able to move his elbows and shoulders freely. In addition to
Officer Walters’s testimony that Grimes had hit him with his elbows, Officer Wright
testified that he saw Grimes’s elbow strike Officer Walters on at least one occasion as
well. Finally, both officers also testified that after they had placed Grimes in a holding
cell, he kicked backwards, striking Officer Walters in the upper stomach to lower chest
area. Both officers demonstrated how Grimes was able to kick Walters while
handcuffed, and Wright testified that Grimes had used his left foot.
No. 06-3695 Page 4
When the district court denied Grimes’s motion for acquittal at the close of
evidence, the court noted that Officer Walters had demonstrated that Grimes had
kicked him with his right foot. The judge further noted, however, that such an
inconsistency was not appropriate for judgment of acquittal but rather was a matter
for the jury to consider. Despite this discrepancy regarding which foot Grimes had
used, the evidence taken as a whole was not so insufficient or contradictory that no
reasonable factfinder could have convicted Grimes of the assault. See United States v.
Turcotte, 405 F.3d 515, 528 n.5 (7th Cir. 2005) (noting that “weighing contradictory
evidence and making credibility determinations are functions generally reserved for
the jury”); United States v. Bradley, 165 F.3d 594, 595 (7th Cir. 1999) (explaining that
minor inconsistencies in testimony do not render evidence insufficient to support a
conviction).
Grimes next argues that the district court erred in imposing a two-level increase
to his base offense level under U.S.S.G. § 2A2.4(b)(2) because, he says, Correctional
Officer Walters did not suffer “bodily injury” as defined in the commentary to § 1B1.1.
The determination that Grimes’s conduct caused Walters bodily injury is a finding of
fact that we review for clear error. United States v. Mejia-Canales, 467 F.3d 1280,
1282 (10th Cir. 2006). We will uphold the district court’s factual determination unless,
after considering all of the evidence, we are left with the firm conviction that a mistake
has been made. United States v. Wagner, 467 F.3d 1085, 1089 (7th Cir. 2006). Where
the district court chooses one of two permissible views of the evidence, the choice is not
clearly erroneous. Id.
When a defendant is convicted of obstructing or impeding officers, the
sentencing guidelines provide for a two-level increase to the base offense level “if the
victim sustained bodily injury.” U.S.S.G. § 2A2.4(b)(2). 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.” Id. § 1B1.1, cmt. n.1(B);
accord id. § 2A2.4, cmt. n.1.
During sentencing, the district court noted that, although it had difficulty seeing
any redness or bruising on Officer Walters’s chest in the government’s picture of his
injury, the examining physician reported redness and bruising on Walters’s left upper
chest. Thus, the district court applied the two-level bodily injury increase to Grimes’s
base offense level because it “was prudent that [Officer Walters] check that out,
especially since it was in the chest.” This decision is not clearly erroneous. See, e.g.,
United States v. Ledford, 218 F.3d 684, 690-91 (7th Cir. 2000) (upholding increase for
inflicting “bodily injury” where one beating victim suffered contusion on chest that
necessitated medical tests and other victim suffered bruising on side and arm); United
States v. Perkins, 132 F.3d 1324, 1326 (10th Cir. 1997) (upholding increase where
victim sought chiropractic care after suffering small laceration, bruising, and continued
neck and shoulder pain); United States v. Hamm, 13 F.3d 1126, 1127-28 (7th Cir. 1994)
(upholding increase where evidence showed that victim suffered bumps and bruises
No. 06-3695 Page 5
and had wind knocked out of him); United States v. Greene, 964 F.2d 911, 911-12 (9th
Cir.1992) (upholding increase where victim suffered pain for a week and sought
medical treatment after being slapped); Patrick v. Lewis, 397 F. Supp. 2d 1134, 1138 (D.
Minn. 2005) (noting coroner’s conclusion that death was caused by complications from
blunt-force chest injury even though only outward sign of prisoner’s injury was
bruising); “Wilderness: Chest Injuries” at http://www.emedicinehealth.com/
wilderness_chest_injuries/page4_em.htm (noting that chest wall injury can result from
blunt trauma to chest, and that anyone with chest injury should seek medical
treatment).
Accordingly, we AFFIRM Grimes’s conviction and sentence.