                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2008

USA v. Aquino
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2547




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                                                                NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-2547


                                  UNITED STATES

                                          v.

                                NICHOLAS AQUINO,

                                       Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 06-cr-00287)
                       District Judge: Honorable Yvette Kane


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 16, 2008

       Before: AMBRO, FISHER, Circuit Judges, and MICHEL,* Chief Circuit Judge

                                (Filed: April 25, 2008)


                             OPINION OF THE COURT




   *
      The Honorable Paul R. Michel, Chief Judge of the United States Court of Appeals
for the Federal Circuit, sitting by designation.
MICHEL, Chief Circuit Judge.

       Defendant Nicholas Aquino appeals from the sentencing order following his

conviction for conspiracy to commit robbery affecting interstate commerce and

brandishing firearms during a crime of violence. Because we discern no harmful error in

the District Court’s sentencing order, we will affirm the order.

                                             I.

       Because we write solely for the parties, we recite only those facts central to our

analysis. Aquino was indicted by a grand jury for five counts of robbery affecting

interstate commerce, conspiracy to commit those robberies, and two counts of

brandishing firearms in furtherance of those crimes of violence. After reaching a plea

agreement with the government, Aquino pled guilty to one of the firearms charges and the

conspiracy charge.

       At the sentencing hearing, Aquino objected to several aspects of the presentence

investigation report (“PSR”). First, he objected to a two-level enhancement for bodily

injury inflicted on a store employee on July 23, 2005, during the robbery of Weis Market

in Carlisle, Pennsylvania, on the ground that the injuries were too minor to warrant the

enhancement. He next objected to a two-level enhancement for bodily injury suffered by

the manager of Sierra Madre Restaurant in Mechanicsburg, Pennsylvania, during a

robbery on August 21, 2005, on the grounds that the injury was not caused by Aquino but

by his co-conspirator, Paul Butler, and that the assault was not foreseeable. Finally,



                                             2
Aquino also objected to a four-level enhancement for abduction of the manager and two

employees during the Sierra Madre Restaurant robbery on the ground that forcing people

to move a short distance within a single premises does not constitute abduction. The

District Court also heard testimony from Aquino as well as the manager of the Sierra

Madre Restaurant. The manager testified that he and two of his employees were outside

the restaurant when they were accosted by Butler and Aquino, who forced them to go

back inside at gunpoint. He also testified that Butler hit him on the head several times

with a gun during the robbery.

       The District Court found for the government as to all of Aquino’s objections. The

Court sentenced Aquino to seven years’ imprisonment for the firearms offense, which is

the statutory mandatory minimum sentence and which is required to be served

consecutively. 18 U.S.C. § 924(c); U.S.S.G. § 3D1.1(b)(1). Following the PSR’s

recommendations as to the conspiracy charge, the District Court accepted the offense

level calculation for the Sierra Madre Restaurant robbery (thirty-one) as the highest of the

robberies, also accepting the increase by four for the other four robberies and a decrease

by three for acceptance of responsibility for a final offense level of thirty-two for the

conspiracy offense as a whole. See U.S.S.G. §§ 1B1.2(d), 3D1.2(d), 3E1.1. The

guideline range for this offense level and Aquino’s criminal history category was 188-235

months for the conspiracy charge. But the District Court also granted the government’s

motion for a downward departure due to Aquino’s substantial assistance to the



                                              3
government, sentencing him to 136 months’ imprisonment for the conspiracy offense for

a total of 220 months’ imprisonment for both the firearms (seven years, or eighty-four

months) and conspiracy offenses.

                                             II.

       Aquino argues three errors on the part of the District Court in its sentencing order.

First, Aquino asserts that the District Court erred by accepting the abduction enhancement

because forcing people to move within a single premises does not constitute abduction.

Second, Aquino argues that the District Court erred by enhancing the offense level for the

Sierra Madre Restaurant robbery for bodily injury when no evidence was presented that

the manager’s injuries were painful, obvious, or one for which a person would ordinarily

seek medical treatment. Finally, Aquino states that the District Court erred by enhancing

the offense level for the Carlisle Weis Market robbery for bodily injury when the victim

received only minor injuries.

                                             1.

       As the District Court noted, the Guidelines provide an example of abduction in its

definition of the term:

       “Abducted” means that a victim was forced to accompany an offender to a
       different location. For example, a bank robber’s forcing a bank teller from
       the bank into a getaway car would constitute an abduction.

U.S.S.G. § 1B1.1 app. n.1(A). Here, Aquino and Butler forced the Sierra Madre

Restaurant manager and employees to accompany them from outside the restaurant back



                                             4
inside at gunpoint. We agree with the District Court that the facts of this case are

indistinguishable from the Guidelines’ example and thus that the four-level enhancement

for abduction was appropriately applied here. Aquino cites no contrary authority and, in

fact, concedes that our sister circuits have also affirmed the application of the abduction

enhancement in similar cases. See United States v. Hickman, 151 F.3d 446, 462 (5th Cir.

1998); United States v. Taylor, 128 F.3d 1105, 1110-11 (7th Cir. 1997); see also United

States v. Whooten, 279 F.3d 58, 61 (1st Cir. 2002); United States v. Hawkins, 87 F.3d

722, 727 (5th Cir. 1996); United States v. Elkins, 16 F.3d 952, 953 (8th Cir. 1994).

                                             2.

       We next turn to Aquino’s objections to the enhancements for bodily injury. We

first note that, unlike the two other objections argued on appeal, Aquino did not raise at

sentencing the objection to the bodily injury enhancement for the Sierra Madre Restaurant

robbery that he now asserts. Rather, Aquino’s only objection to this enhancement at

sentencing was that the injury was inflicted not by him but by Butler, and that his

sentence should not be affected by Butler’s conduct because it was not foreseeable in this

regard. Aquino now abandons that objection and instead argues that the government

failed to show that the manager’s injuries were significant enough for the enhancement

under the Guidelines.

       Because this objection was not raised at sentencing, we apply a plain error

standard of review. United States v. Olano, 507 U.S. 725, 731-32 (1993); United States



                                              5
v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006). To reverse, we must find that the error was

clear or obvious, affected the substantial rights of the Defendant, and “seriously affects

the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at

732-36; Dragon, 471 F.3d at 505. We do not discern such an error here.

       The Guidelines define “bodily injury” as “any significant injury; e.g., an injury that

is painful and obvious, or is of a type for which medical treatment ordinarily would be

sought.” U.S.S.G. § 1B1.1 app. n.1(B). At the sentencing hearing, the manager of the

Sierra Madre Restaurant testified that he was hit repeatedly on his head with a gun. In

addition, the PSR indicated that medical treatment was offered to the manager (though he

refused it). The District Court’s finding that these facts supported a finding of bodily

injury within the meaning of the Guidelines is not plain error.

       Aquino relies principally on United States v. Guerrero, 169 F.3d 933, 946-47 (5th

Cir. 1999), where a sentence was vacated and the case remanded on the ground that an

enhancement for bodily injury was applied in error. We hold that Guerrero does not

compel a different result. First, the Guerrero panel expressly declined to review the

bodily injury aspect of the sentence under the more deferential plain error standard. In

addition, the Fifth Circuit remarked that evidence of the severity of an assault may

support a finding of bodily injury when, for that type of attack, “the resulting injury

follows automatically and is obvious.” Id. at 947. Here, it was not plain error for the

District Court to view repeated beatings to the head with a gun as such an attack. See



                                              6
United States v. Perkins, 89 F.3d 303, 308 (6th Cir. 1996) (holding that hitting a victim in

the head with a gun and kicking him in the face, thus injuring him, was sufficient to

support a finding that the injury was significant enough to warrant the bodily injury

enhancement under the Guidelines).

                                             3.

       Lastly, we discern no reversible error as to the two-level enhancement for bodily

injury recommended by the PSR for the Carlisle Weis Market robbery. Under U.S.S.G. §

1B1.2(d), the conspiracy offense was treated as five separate counts of conspiracy

corresponding to each of the five robberies for the purpose of calculating offense levels.

Due to the prohibition on combining robbery offenses covered by U.S.S.G. § 2B3.1, each

count’s offense level was calculated separately. U.S.S.G. § 3D1.2(d). Under U.S.S.G. §

3D1.4, the highest of these offense levels—thirty-one for the Sierra Madre Restaurant

robbery—was then taken as the base to calculate the combined offense level for all of the

offenses. Aquino voices no objection to these procedures.

       Since we find no error in the District Court’s evaluation of the offense level for the

Sierra Madre Restaurant robbery, we see no error in basing the combined offense level on

that robbery because its offense level was the highest of the five robberies. Thus, even if

we were to find error in the District Court’s bodily injury enhancement of the Carlisle

Weis Market robbery’s offense level, such an error would be harmless because the Sierra

Madre Restaurant robbery would still have the highest offense level and the Carlisle Weis



                                             7
Market robbery would still count for one unit toward the combined offense level.

      As a result, we will affirm the District Court’s sentencing order.




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