          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                April 23, 2009
                               No. 08-20488
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ERVIN GOMEZ-LOPEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:07-CR-508-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Ervin Gomez-Lopez (Gomez) challenges his 50-month sentence for
conspiring to transport and harbor undocumented aliens for the purpose of
commercial advantage. He argues that the district court erred in imposing a
four-level increase pursuant to U.S.S.G. § 2L1.1(b)(7)(B) based upon its finding
that Gomez had inflicted “serious bodily injury” on detained alien Rafael
Sandoval-Trujillo (Sandoval).



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-20488

      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). See United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Pursuant to Gall v. United States, 128 S. Ct. 586, 596-97 (2007), when
challenged on appeal, this court must determine whether the sentence imposed
is procedurally sound, including whether the calculation of the advisory
guidelines range is correct, and whether the sentence imposed is substantively
reasonable. Review is for an abuse of discretion. Id. at 597. Gomez challenges
only the determination that his victim suffered “serious bodily injury,” adding
four levels to his base offense level for sentencing guidelines purposes, rather
than a mere “bodily injury,” which would add only two levels.
      “Neither Gall, Rita v. United States, [551 U.S. 338 (2007),] nor Kimbrough
v. United States, [128 S. Ct. 558 (2007),] purport to alter [this court’s] review of
the district court’s construction of the Guidelines or findings of fact.” United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (footnotes
omitted). Accordingly, “[a] district court’s interpretation or application of the
Sentencing Guidelines is reviewed de novo, and its factual findings . . . are
reviewed for clear error.” Id. (internal quotation marks and citation omitted).
The severity of a victim’s injury is a question of fact and is reviewed for clear
error. See United States v. Davis, 19 F.3d 166, 171 (5th Cir. 1994). “A factual
finding is not clearly erroneous if it is plausible in light of the record read as a
whole.” United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
      Section 2L1.1 provides for a two-level increase when any person sustains
“bodily injury,” and a four-level increase when any person sustains “serious
bodily injury,” during the smuggling, transporting, or harboring of an illegal
alien. See § 2L1.1(b)(7)(A) and (B). For purposes of the Guidelines, bodily injury
means “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,
comment. (n.1(B)).    Serious bodily injury means “injury involving extreme

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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.”     § 1B1.1, comment. (n.1(L))
(emphases added).
      According to the presentence report (PSR), Gomez told Sandoval to disrobe
and ordered that he be tied up. Gomez and other conspirators hit and kicked
Sandoval. One of the conspirators hit Sandoval on his body and head with a
wooden closet rod. The rod broke in half when Sandoval was hit with it on his
shin. Sandoval was then placed in a closet and a conspirator pointed a firearm
at Sandoval’s head and threatened him. Roughly 10 minutes later, another
conspirator opened the closet door and began to punch and kick Sandoval. The
conspirator’s foot made a hole in the closet wall. One of the kicks landed on the
right side of Sandoval’s face, near his jaw. His jaw was apparently displaced or
broken. Sandoval was unable to eat for four days following the beating and
continued to suffer from earaches at the time that the PSR was written.
Sandoval was left tied up and nude in the closet overnight. The district court
was entitled to rely on these facts. See United States v. Caldwell, 448 F.3d 287,
291 n.1 (5th Cir. 2006).
      In light of the injuries described above, we cannot say that the district
court’s finding that Sandoval suffered serious bodily injury is not “plausible in
light of the record read as a whole.” Villanueva, 408 F.3d at 203; see Davis, 19
F.3d at 168-69, 171 (5th Cir. 1994).
      AFFIRMED.




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