United States v. Brittany Smith

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 16 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-30322
Plaintiff - Appellee, D.C. No. CR-09-75-BLG-JDS
v.
MEMORANDUM*
BRITTANY LEIGH SMITH,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Submitted December 7, 2011**
Seattle, Washington
Before: McKEOWN and TALLMAN, Circuit Judges, and MOSKOWITZ, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
A jury convicted Brittany Smith of assault resulting in serious bodily injury.
The district court found that the victim’s injury was “permanent or life-threatening
bodily injury.” U.S.S.G. § 2A2.2(b)(3)(C). The district court then departed
downward from the Guidelines to sentence Smith to 30 months in prison;
consequently, it is unclear whether Smith suffered any prejudice from the court’s
imposition of the seven-point enhancement associated with “permanent or life-
threatening bodily injury.” We have jurisdiction pursuant to 28 U.S.C. § 1291 and
we affirm.
Smith claims the district court erred by determining that the victim suffered
“permanent or life-threatening bodily injury” because the injury did not involve “a
substantial risk of death; loss or substantial impairment of the function of a bodily
member, organ, or mental faculty that is likely to be permanent; or an obvious
disfigurement that is likely to be permanent.” U.S.S.G. § 1B1.1 comment. (n.1(J)).
Smith argues that the five-point enhancement associated with “serious bodily
injury” was the proper enhancement.1 We review the procedural soundness of the
sentence for abuse of discretion. United States v. Gall, 552 U.S. 38, 51 (2007).
1
See U.S.S.G. § 1B1.1 comment. (n.1(L)) (requiring 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.”).
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Dr. Guy Schmidt, the victim’s treating physician, testified that the victim’s
broken femur was “very serious” and “very painful.” If left untreated, the injuries
“would have caused obvious disfigurement and possible death and were extremely
painful.” Schmidt did not specifically state that a “substantial risk of death”
existed, nor did he clarify that the obvious disfigurement was “likely to be
permanent.” His failure to parrot the language in note 1(J) to the commentary to
U.S.S.G. § 1B1.1, however, does not render the district court’s finding an abuse of
discretion. Trial testimony made clear that a broken femur is a life-threatening
injury that requires emergency surgery. Prior to surgical intervention, broken
femurs were associated with a 50 percent mortality rate. This is a substantial risk
of death. The district court did not abuse its discretion.
Contrary to Smith’s contention, the fact that an injury requires surgery,
hospitalization and rehabilitation, thus meeting the definition of “serious bodily
injury,” does not mean that the injury cannot also qualify as “permanent or
life-threatening bodily injury.” See United States v. Tindall, 519 F.3d 1057, 1064
(10th Cir. 2008) (rejecting argument that “a timely-treated injury cannot be
life-threatening”). Whether an injury is “permanent or life-threatening” turns on
the nature of the injury, not the nature of the treatment. Id.3
Smith also claims that the district court erred in failing to appoint a new
lawyer for her. We review the denial for an abuse of discretion upon considering
three factors: “(1) the timeliness of the motion; (2) the adequacy of the district
court’s inquiry; and (3) whether the asserted conflict was so great as to result in a
complete breakdown in communication and a consequent inability to present a
defense.” United States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir. 2009).
At Smith’s request, her attorney moved to withdraw two months prior to
trial. At the beginning of the hearing, the district court advised Smith to stop
crying. This admonition, in light of the remainder of the hearing, did not make the
environment coercive. Smith took issue with counsel’s description of her case as
“hopeless.” The court noted that “part of a lawyer’s duty to a client is to be frank
and honest with them.” Smith also claimed her counsel had stated that “[e]ither
way, I’m getting paid.” The court responded that counsel likely was trying to
convey that this “wasn’t a situation where he made more money if he went to trial
as opposed to if he didn’t.” The district court explained to Smith that its primary
concern was whether Smith and her counsel had reached a point where they could
not communicate any further. Smith responded: “Yeah. We are still able to
communicate. . . . I probably would be telling you a lie if I stated that this is
irretrievable communication between us.” The court then explained that Smith
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could raise her concerns again if there was an irretrievable breakdown in the future.
Because Smith admitted that no breakdown had occurred, the district court did not
abuse its discretion by denying her motion.
Immediately prior to sentencing, Smith filed a pro se request for a new
attorney. Given that Smith was represented by counsel, the district court denied
the motion and ordered Smith to submit documents through her attorney. In her
sentencing memorandum, Smith’s counsel referenced the pro se filing and asked
the trial court to consider it, but neither Smith nor counsel raised the issue again.
Because Smith did not pursue the motion and, at any rate, had not established that
appointment of new counsel was necessary, the district court did not abuse its
discretion by denying Smith’s pro se motion.
AFFIRMED.
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