                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4878


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JAMAL HICKS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.    Glen M. Williams,
Senior District Judge. (2:03-cr-10088-GMW)


Submitted:    January 28, 2009              Decided:   February 27, 2009


Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for
Appellant.    Julia C. Dudley, Acting United States Attorney,
Jennifer   R.   Bockhorst,  Assistant United States Attorney,
Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                  Jamal Hicks appeals his sentence on remand from his

conviction         for    assaulting    a     federal        correctional         officer,      in

violation of 18 U.S.C. §§ 111(a)(1), 111(b) (2006). 1                                 Following

consideration of the presentence investigation report (“PSR”), 2

the arguments and objections of counsel, the statements made by

Hicks,      and     the   relevant     sentencing            factors      set    forth     in    18

U.S.C.      § 3553(a)       (2006),     the    district         court      sentenced       Hicks

below       the    guideline    range       recommended            in    the    PSR   to   forty

months’      imprisonment,          three    years      of    supervised         release,       and

ordered him to pay restitution in the amount of $1,167.52.

                  Hicks noted a timely appeal, and the sole error he

raises       on     appeal     is     that     the      district          court       erred      in

resentencing him pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 2A2.2 (2003).               Specifically, he asserts error in the

district          court’s     application          of        the        aggravated       assault




        1
       On November 15, 2005, we affirmed his conviction, but
remanded the case for resentencing in light of United States v.
Booker, 543 U.S. 220 (2005).
        2
       The probation officer who prepared the PSR on resentencing
concluded that Hicks should be sentenced at a total offense
level of twenty, and a criminal history category of IV, with an
attendant sentencing range of fifty-one to sixty-three months’
imprisonment.




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guideline, claiming the officer did not sustain serious bodily

injury. 3

             The       charge    arose     on       August    31,       2003,    when    Hicks

punched Corrections Officer Brian Doyle in his left eye while

passing     through       the     metal     detector          at    the    United       States

Correctional       Facility-US-Lee,          in       Lee    County       Virginia.          The

assault     was    captured       on    video       and   viewed     by    the    judge,      as

factfinder,       at    trial.         Outside      the     view   of    the    surveillance

camera, Hicks hit Officer Doyle a second time on his left cheek.

             As a result of the assault, Officer Doyle’s left eye

was   swollen      shut,    and    he     received        medical       treatment       at   the

institution as well as x-rays and treatment at a local hospital

emergency room.           Officer Doyle attested that he thereafter had

to return to the facility to prepare a report, after which he

was relieved of his duty and sent home, as he was unable to

perform his job because of the swelling and impaired vision of

his left eye.           He further attested that the vision in his left

eye was “very, very blurred” and that the bruising was “very


      3
       We find Hicks’ alternative argument, that USSG § 2A2.3 may
be applicable, to be without merit.     Under the guidelines, for
convictions under 18 U.S.C. § 111, Hicks’ offense of conviction,
Appendix A directs the court to utilize either USSG § 2A2.2
(Aggravated   Assault)  or   § 2A2.4  (Obstructing   or  Impeding
Officers).   USSG, App. A (2003).     Hence, application of USSG
§ 2A2.3, as Hicks argues, would have been inappropriate, as that
section relates to assault statutes not at issue here.



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substantial.”       He    applied       ice       for   three    days       to   reduce    the

swelling.       While    he    already    was       scheduled         for    the     two   days

following the assault off from work, when he returned to work

thereafter, he was given office work to do, as he was unable to

perform   his    regular       duties    because         of     his    impaired       vision.

Officer Doyle testified that he suffered from blurred vision, a

splitting headache for a week, and that he had to take off three

days of sick leave as a result of his injuries.                              Approximately

four   months    after    the    assault,          Officer      Doyle       sought    further

medical   treatment      for    blurred       vision,         residual       bruising,      and

headaches.      The bruising from the assault was so significant as

to still be evident at the time of trial, almost six months

later.

              We review a sentence imposed by the district court

“under    a   deferential       abuse-of-discretion              standard.”            United

States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall

v. United States, 128 S. Ct. 586, 591 (2007)).                                In reviewing

guideline determinations, we review questions of law de novo,

and questions of fact for clear error.                        United States v. Green,

436 F.3d 449, 456 (4th Cir. 2006).

              “Aggravated assault” is defined under the guidelines

as “a felonious assault that involved (A) a dangerous weapon

with intent to cause bodily injury . . . with that weapon; (B)

serious   bodily    injury;       or    (C)       an    intent    to        commit    another

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felony.”      USSG § 2A2.2, App. Note 1 (2003).                        “Serious bodily

injury,” is defined, in pertinent part, as “injury involving

extreme physical pain or the protracted impairment of a function

of   a   bodily     member,         organ,    or     mental    faculty.”         Id.   USSG

§ 1B1.1, App. Note 1(L)(2003).

             Given       the    nature       and   duration      of    Officer    Doyle’s

injuries,     we     find      no    clear     error    in     the    district    court’s

determination that these injuries were sufficiently serious so

as to constitute “serious bodily injury” under the definition

provided    for     in    the       guidelines.        Accordingly,       the    district

court’s application of § 2A2.2 was not erroneous.

             We therefore affirm Hicks’ sentence.                      We dispense with

oral     argument    because         the     facts    and     legal    contentions     are

adequately    presented         in     the    materials       before    the   court    and

argument would not aid the decisional process.

                                                                                 AFFIRMED




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