                                                                                  F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                    APR 9 1998
                                        TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                         Clerk


 UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,
                                                               No. 97-2165
           v.                                            (D.C. No. CR-96-68-MV)
                                                             (D. New Mexico)
 DAVID WHITETHORNE,

                  Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before BALDOCK, BARRETT, and LOGAN, Circuit Judges.



          Defendant David Whitethorne appeals his conviction by a jury of assault resulting

in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6), and the district court’s

calculation of his sentencing offense level. Defendant asserts that there was insufficient

evidence that he inflicted a “serious bodily injury” on Jason Arviso as defined by

§ 113(a)(6) and that the district court erred by increasing his offense level by four.



      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Because the record reveals sufficient evidence on which a jury could find beyond a

reasonable doubt that defendant inflicted a serious bodily injury under the statute, and this

evidence also supports the four-level increase, we affirm.

                                               I

       This case arose from an altercation between defendant, Jason Arviso and Russell

Tom. The three had been drinking when defendant and Arviso began to hit each other.

Tom then attempted to break it up, and although he initially testified he was only trying to

stop the fight, he later admitted he hit and kicked defendant after defendant punched him.

At some point defendant stabbed Arviso.1 Neither Tom nor Arviso was armed with a

knife or other weapon. Defendant walked off, and Tom and a friend put Arviso in a truck

and took him to the hospital emergency room.

          Arviso was treated by Dr. Neville Davis, who testified that upon arrival Arviso

was unresponsive. Arviso was a three on the Glascow Scale on which fifteen is fully

conscious. He was bleeding heavily over his right clavicle, and Dr. Davis thought he

might have a severed major artery. Arviso’s blood pressure was low2 and he was

tachycardic--his heart rate was fast and his respiratory rate was low. He also had wounds




      1
        Defendant’s theory of self-defense was that he only inflicted the stab wounds on
Arviso after Arviso and Tom and knocked him on the ground and kicked him in the head
and back. The jury rejected this theory.
      2
        Arviso’s blood pressure when he arrived at the hospital was 60 over 40; normal
blood pressure in a young male is around 100-120 over 70-80.

                                              -2-
to his neck, back, and side. The wounds were of the type that a knife would make, and all

four required sutures.

       Dr. Davis stopped the bleeding, and Arviso’s blood pressure normalized. The

doctor gave Arviso four liters of intravenous fluid (saline solution) in the first half hour to

increase his blood volume.3 Before he was released later that day, Arviso was given a

total of seven liters of fluid.

           At trial, defense counsel suggested that Arviso’s unresponsiveness was caused by

his blood-alcohol level of .256. Dr. Davis testified that a .256 blood-alcohol level could

cause unresponsiveness if a person had not been drunk before, but that Arviso’s low

blood pressure generally would not be caused by intoxication, which usually results in

elevated blood pressure. He also stated he would have given an intoxicated, nontrauma

patient saline solution, although not as much.

           Defendant was found guilty of two simple assault misdemeanors and two felonies:

assault by striking, beating or wounding and assault resulting in serious bodily injury.

Defendant appeals only his conviction and sentence for the Arviso assault resulting in

serious bodily injury, 18 U.S.C. § 113(a)(6).4

       3
          Dr. Davis testified that although he could have replaced Arviso’s blood volume
with a transfusion of blood, his practice was to use saline solution if possible to avoid the
risks of transmitting disease.
       4
         The only copy of the court’s amended judgment in the appellate record is
appended to defendant’s brief. It erroneously lists the violation as being of 18 U.S.C.
§ 113(a)(3), whereas the indictment and the jury verdict clearly state the count as a
                                                                                  (continued...)

                                              -3-
                                              II

       We first address defendant’s argument that there was insufficient evidence to

prove beyond a reasonable doubt that Arviso suffered “serious bodily injury” under 18

U.S.C. §113(a)(6).

       [I]n reviewing the sufficiency of the evidence to support a jury verdict, this
       court must review the record de novo “and ask only whether, taking the
       evidence--both direct and circumstantial, together with the reasonable
       inferences to be drawn therefrom--in the light most favorable to the
       government, a reasonable jury could find the defendant guilty beyond a
       reasonable doubt.”

United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.) (quoting United States v. Urena,

27 F.3d 1487, 1489 (10th Cir.1994)), cert. denied, 117 S. Ct.. 226 (1996) (further

quotation omitted).

       The assault statute, 18 U.S.C. § 113(a)(6), provides for punishment for “[a]ssault

resulting in serious bodily injury.” Section 113 (b)(2) adopts the definition of “serious

bodily injury” in 18 U.S. C. §1365:

       (g)(3)   the term “serious bodily injury” means bodily injury which involves-
       -
       (A)      a substantial risk of death;
       (B)      extreme physical pain;
       (C)      protracted and obvious disfigurement; or
       (D)      protracted loss or impairment of the function of a bodily member, organ, or
                mental faculty.



       (...continued)
       4

violation of § 113(a)(6). The error was noted in the defendant’s objections to the
presentence report. II R. Addendum, Objection No. 1. We assume the error has been, or
will be, corrected. See Fed. R. Crim. P. 36.

                                             -4-
18 U.S.C. §1365(g)(3). The jury instructions contained the statutory definition.

       Defendant argues there was insufficient evidence to meet either the substantial risk

of death prong, or the extreme physical pain prong.5 We need not address whether the

jury could have found sufficient evidence of extreme physical pain because our review of

the record supports a finding that the injuries caused a “substantial risk of death.”

       Dr. Davis testified that when Arviso arrived at the emergency room he was

unresponsive, his blood pressure and respiration were low, and his heart rate was

elevated. He had lost a significant amount of blood. Defendant points out that on cross-

examination, in response to the defense attorney’s question “in looking back at [the

clavicle injury] you’ve concluded that that was not a life-threatening injury?” Dr. Davis

stated “That’s a fair assumption since we were able to stop the bleeding.” III R. 66. But

on redirect, when asked “if Mr. Arviso had not been treated that night, if he had not

received prompt medical attention, could his injuries have been life threatening?” Dr.

Davis responded “Yes, on the assumption that the bleeding was unable to be stopped. He



       5
          Defendant asserts that there was no showing of extreme physical pain, pointing
out that Arviso was released about ten hours after being admitted to the emergency room,
and that before his release was sitting up in bed, talking with friends. Further, Arviso did
not testify, and there was no other testimony that he suffered extreme physical pain. Cf.
United States v. Vazquez-Rivera, 135 F.3d 172, 174-75 (1st Cir. 1998) (record was
“devoid of any evidence” supporting finding that victim suffered “extreme physical pain,”
as defined in § 1365(g)(3), where victim was assaulted and raped but there was no sign of
cuts or bruises or other “physical manifestations of [] crime”); (later upholding finding of
“serious bodily injury” based on evidence of “‘protracted . . . impairment of . . . mental
facult[ies]’”).

                                             -5-
had lost enough blood that he was--had a low blood pressure. Presumably if the bleeding

hadn’t been stopped, he could have continued to bleed out, theoretically, coded and died.”

Id. at 85; see also id. at 55 (if Arviso had not been brought to the hospital, he could have

lost a sufficient amount of blood to cause cardiac arrest and death).

       The question whether an injury is life threatening must be viewed at the time of the

injury rather than, as defendant argues, after medical treatment. The record here contains

evidence that Arviso’s injuries caused a loss of blood which could have killed him if he

had not been successfully treated. Thus, it supports our conclusion that a rational jury

could have found Arviso’s injury involved a “substantial risk of death.”

                                             III

       Defendant also asserts the district court erred in increasing his offense level by

four for “serious bodily injury.” We review a sentencing court’s findings of fact for clear

error and give due deference to the district court’s application of the guidelines to the

facts. United States v. Talamante, 981 F.2d 1153, 1158 (10th Cir. 1992).

       The guideline applicable to aggravated assault provides for a four-level increase in

the offense level if any victim sustained “serious bodily injury,” USSG § 2A2.2(b)(3)(B),

defined as “injury involving extreme physical pain or the impairment of a function of a

bodily member, organ, or mental faculty, or requiring medical intervention such as

surgery, hospitalization, or physical rehabilitation. As used in the guidelines, the

definition of this term is somewhat different than that used in various statutes.” USSG §


                                             -6-
1B1.1, comment. (n.1 (j)). This definition is broader than that under 18 U.S.C. §

1365(g)(3), in part because it applies if the injury requires medical intervention, including

surgery or hospitalization. Cf. United States v. Page, 84 F.3d 38, 43 (1st Cir. 1996 ) (no

requirement for protracted impairment under guidelines; also noting courts have found

two-hour stay in emergency room not hospitalization).

       The district court specifically found that Arviso required medical intervention

under the guideline. Cf. United States v. Johnson-Dix, 54 F.3d 1295, 1312-13 (7th Cir.

1995) (upholding increase for “serious bodily injury” where victim’s fibula was fractured

by bullet and he was hospitalized for two days); United States v. Moore, 997 F.2d 30, 37

(5th Cir. 1993) (officer shot in leg but did not require surgery or hospitalization beyond

emergency room treatment; no abuse of discretion in giving four-level increase); United

States v. Corbin, 972 F.2d 271, 272-73 (9th Cir. 1992) (district court finding that two-

layer closure with over twenty-five sutures constituted “surgery” under USSG

§ 2B3.1(b)(3)(B) was not error). Although defendant argues that Arviso did not receive

surgery or hospitalization, the ten-hour stay in the emergency room combined with the




other facts in this case support the district court’s determination under the guidelines--

particularly where we have upheld the jury finding that the victim suffered a substantial

risk of death.


                                             -7-
AFFIRMED.

                  Entered for the Court


                  James K. Logan
                  Circuit Judge




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