     Case: 14-51345       Document: 00513289297         Page: 1     Date Filed: 12/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-51345
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          December 1, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

RONNIE DEANGELO WORTHY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:14-CR-225-1


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Ronnie Deangelo Worthy appeals the 481-month sentence imposed
following his guilty-plea convictions for: carjacking, in violation of 18 U.S.C.
§ 2119; bank robbery, in violation of § 2113; and using a firearm in furtherance
of a crime of violence (two counts), in violation of § 924(c). Worthy asserts the
district court erred by: (1) increasing his offense level by two levels, pursuant
to Sentencing Guideline § 2B3.1(b)(3)(A), for inflicting bodily injury on the


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                   No. 14-51345

carjacking victim; (2) increasing his offense level by four levels, pursuant to
§ 2B3.1(b)(4)(A), for abducting that victim, and by two levels, pursuant to
§ 2B3.1(b)(4)(B),   for    physically   restraining     the     bank-robbery   victims;
(3) denying his motion for a downward departure; and (4) imposing a
substantively unreasonable sentence.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). In
that respect, for issues preserved in district court, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Regarding Worthy’s challenge to the enhancement for inflicting bodily
injury to the carjacking victim, whether the victim sustained a bodily injury,
pursuant to Guideline § 2B3.1(b)(3)(A), is a factual finding, reviewed for clear
error. See United States v. Martinez-Alvarado, 422 F. App’x 356, 358 (5th Cir.
2011). “A factual finding is not clearly erroneous as long as it is plausible in
light of the record as a whole.” E.g., United States v. Jimenez, 323 F.3d 320,
322–23 (5th Cir. 2003). “Bodily injury” is defined in the Guidelines as “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 cmt.
n.1(B).
      At sentencing, Worthy testified he did not strike the carjacking victim.
He contends the court inappropriately considered the context, as described by
the victim, of the alleged strike: Worthy’s demanding oral sex from her and



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pulling her head towards his lap. There was also some dispute regarding
whether the Spanish word the victim used to describe the strike translated to
“punched” or “slapped”; and, alternatively, Worthy contends any injury she
incurred did not rise to the level of “significant”, as defined in the Guidelines,
because she did not seek medical treatment. See § 1B1.1 cmt. n.1(B).
      The district court was free to rely on the addendum to the Presentence
Investigation Report and determine the credibility of Worthy’s testimony. See
United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). According to that
addendum, the victim stated in a telephone interview with the probation
officer: Worthy struck her in the face with a closed fist; it was painful; and she
experienced some redness on the side of her face. This court has affirmed the
application of the bodily-injury enhancement in cases involving similar
injuries. See, e.g., United States v. Washington, 500 F. App’x 279, 282–83 (5th
Cir. 2012) (victim suffered closed-fist punch in the nose but did not seek
medical treatment); see also United States v. Jefferson, 258 F.3d 405, 413–14
(5th Cir. 2001) (victim suffered head injury described as a “knot”, cuts, scrapes,
and bruises).
      Worthy next asserts the court improperly applied the abduction
enhancement, under § 2B3.1(b)(4)(A), to the carjacking offense, and the
physical-restraint enhancement, under § 2B3.1(b)(4)(B), to the bank-robbery
offense.   In district court, Worthy claimed these enhancements were
unnecessary because he was already being sentenced for use of a firearm under
§ 924(c). Because he disputes these enhancements on a different basis here,
his assertions are reviewed for plain error.      United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Under that standard, Worthy
must show a forfeited plain (clear or obvious) error that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we



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have the discretion to correct the error, but should do so only if it seriously
affects the fairness, integrity, or public reputation of the proceedings. Id.
      Here, Worthy contends that, as stated in Guideline § 2K2.4(b) (the
Guideline for 18 U.S.C. § 924(c) offenses), Chapters Three and Four of the
Sentencing Guidelines do not apply.             Worthy’s claim fails because the
enhancements applied to his carjacking and bank robbery offenses are in
Chapter Two of the Guidelines, not Three or Four.
      For his third issue, Worthy contends the district court committed
procedural error at sentencing by failing to comply with the requirements of
18 U.S.C. § 3553(a) (sentencing factors) with respect to his request for a
downward departure. He claims: the court misinterpreted his request for a
downward departure for the carjacking and bank-robbery offenses as a request
for a departure from the mandatory minimum sentences for the firearms
offenses; in addition, it did not explain its rejection of his request.
      We “have jurisdiction to review a district court’s refusal to grant a
downward departure from the Guidelines only if the refusal was based on an
error of law”. United States v. Barrera-Saucedo, 385 F.3d 533, 535 (5th Cir.
2004). “A refusal to grant a downward departure is a violation of law only if
the court mistakenly assumes that it lacks authority to depart.” United States
v. Cooper, 274 F.3d 230, 248 (5th Cir. 2001). Because the court recognized it
had the authority to depart, we lack jurisdiction to consider Worthy’s claim.
See id.; Barrera-Saucedo, 385 F.3d at 535.
      Finally,   Worthy     maintains     his    within-Guidelines     sentence    is
substantively unreasonable because it is virtually a life sentence. Because his
sentence falls within the applicable Guidelines sentencing range, it is afforded
a presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006).     The court expressly considered several of the 18 U.S.C.



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§ 3553(a) factors, the documentary evidence, and the parties’ assertions,
including Worthy’s contention for a more lenient sentence. We will not reweigh
the § 3553(a) factors: “the sentencing judge is in a superior position to find
facts and judge their import under § 3553(a) with respect to a particular
defendant”. United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008). Worthy, therefore, fails to rebut the presumption of reasonableness.
      AFFIRMED.




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