United States v. Alvin R. Allery, Jr. , 50 F. App'x 795 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2549
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of South Dakota.
*
Alvin Ronald Allery, Jr., * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 6, 2002
Filed: November 12, 2002
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Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
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PER CURIAM.
A jury found Alvin Ronald Allery, Jr. guilty of assaulting Timothy Carl Nelson
with intent to do bodily harm, in Indian Country, in violation of 18 U.S.C. §§ 1153and 113(a)(3). At sentencing, the district court imposed a 4-level enhancement for
use of a dangerous weapon, see U.S.S.G. § 2A2.2(b)(2)(B); a 6-level enhancement
because the victim had suffered permanent bodily injury, see U.S.S.G
§ 2A2.2(b)(3)(C); a 2-level increase for obstruction of justice, see U.S.S.G. § 3C1.1;
a total offense level of 27; a Category I criminal history; and a resulting Guidelines
range of 70-87 months imprisonment. The district court sentenced Allery to 87
months imprisonment and 3 years supervised release. This appeal followed.
Allery first argues the district court improperly denied his motion for a
judgment of acquittal, because the evidence did not show Allery used a knife to
assault Nelson. Based on our review of the trial testimony, see United States v. Stroh,
176 F.3d 439, 440 (8th Cir. 1999) (standard of review), we reject Allery's argument.
One eyewitness testified Allery pulled a knife from his sock and cut Nelson, and
another witness testified he saw Allery swing at Nelson with a knife, after which
blood hit the ground. A police investigator testified a knife was recovered from the
car in which Allery had fled the crime scene, and the car had blood on it, both inside
and out. Finally, the emergency room physician who treated the victim testified
Nelson had two facial lacerations consistent with knife wounds. See United States
v. Phelps, 168 F.3d 1048, 1056 (8th Cir. 1999) (elements of conviction under
§ 113(a)(3)). The jury was entitled to discredit Allery's conflicting testimony he only
pushed and did not stab Nelson. See United States v. Balanga, 109 F.3d 1299, 1301
(8th Cir. 1997).
Allery also argues the district court committed error at sentencing by applying
the 2-level obstruction-of-justice enhancement and by determining Nelson had
sustained a permanent or life-threatening injuring warranting the 6-level
enhancement. Contrary to Nelson's view, the district court correctly applied the
obstruction enhancement. The court specifically found Allery's trial testimony was
material and intentionally false, and we conclude these findings are not clearly
erroneous. See U.S.S.G. § 3C1.1, comment. (n.4(b) (perjury is conduct to which
§ 3C1.1 applies); United States v. Simms, 285 F.3d 1098, 1100 (8th Cir. 2002)
(standard of review), petition for cert. filed, (U.S. Oct. 16, 2002) (No. 02-6922);
United States v. Titlbach, 300 F.3d 919, 924 (8th Cir. 2002) (elements of perjury);
United States v. Willis, 997 F.2d 407, 416 (8th Cir. 1993) (sua sponte obstruction
enhancement), cert. denied, 510 U.S. 1050 (1994). The district court also did not
commit clear error in finding Nelson suffered a "permanent" injury given the treating
physician's testimony about the location, depth, and size of the lacerations (one of
which involved multiple skin layers) on Nelson's face, and the 50 stitches that were
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necessary. Further, at trial, the district court saw the victim and observed that the
disfigurement from the knife cut was obvious and likely to be permanent. See
U.S.S.G. §§ 2A2.2, comment. (n.1) (cross-referencing U.S.S.G. § 1B1.1 for definition
of permanent or life-threatening bodily injury), 1B1.1, comment (n.1(g)) (definition);
cf. United States v. Cree, 166 F.3d 1270, 1271-72 (8th Cir. 1999) (district court did
not clearly err in finding injury was permanent where victim suffered broken tooth,
bruises, facial cut requiring 17 stitches, and scar visible at trial 7 months later).
However, we note section 2A2.2(b)(3) expressly limits the cumulative increase
under U.S.S.G. § 2A2.2(b)(2) and (b)(3) to 9 levels. See U.S.S.G. § 2A2.2(b)(3)
("Provided, however, that the cumulative adjustments from (2) and (3) shall not
exceed 9 levels") (emphasis in original). Here, the district court imposed both a 4-
level dangerous-weapon increase under section 2A2.2(b)(2) and a 6-level permanent-
injury increase under section 2A2.2(b)(3)(C), for a total of 10 levels. The 9-level
limit would result in a total offense level of 26 rather than 27, which would lower the
Guidelines range to 63-78 months, a range below Allery's 87-month sentence. In
these circumstances, we conclude the mistake is plain error, and we exercise our
discretionary authority to correct it. See Fed. R. App. P. 52(b); United States v.
Maynie, 257 F.3d 908, 919 (8th Cir. 2001), cert. denied, 534 U.S. 1151, and cert.
denied, 122 S. Ct. 1333 (2002); United States v. Montanye, 996 F.2d 190, 192 (8th
Cir. 1993).
Accordingly, we affirm Allery's conviction, and we reject his sentencing
arguments. Having concluded it was plain error to impose a cumulative increase of
10 levels, and on that basis only, we vacate the sentence and remand to the district
court to resentence Allery within a Guidelines range of 63-78 months.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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