                           NOT FOR PUBLICATION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.”).

                                          2
      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


                                           4
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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