                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAR 31 2004
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 03-1324
           v.                                            (D. Colorado)
 SERGIO PEREZ-AMARO,                                (D.C. No. 02-CR-575-N)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Circuit Judge, and      ANDERSON and BALDOCK , Circuit
Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The 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.
       Sergio Perez-Amaro pled guilty to nine counts of transporting illegal aliens,

in violation of 8 U.S.C. § 1324, and aiding and abetting, in violation of 18 U.S.C.

§ 2. He was sentenced to fifteen months imprisonment on each count, to run

concurrently, and three years of supervised release. He appeals his sentence,

arguing that the district court erred in applying a sentencing enhancement and in

failing to depart downward.

       Perez-Amaro’s appointed counsel has filed a brief pursuant to    Anders v.

California , 386 U.S. 738 (1967), because he has concluded that this appeal is

“wholly frivolous, after a conscientious examination of it,”   id. at 744, and he has

so advised this court and requests permission to withdraw as counsel. After

carefully reviewing the record, we agree with Perez-Amaro’s counsel that Perez-

Amaro’s appeal presents no non-frivolous issues, so we grant counsel’s request to

withdraw and we affirm Perez-Amaro’s sentence.



                                    BACKGROUND

       On November 4, 2002, Colorado State Police received a report that a van

carrying a number of people had veered off a winding highway in snowy and icy

conditions, hitting a parked trailer. When the police arrived, they determined that

the van had been carrying ten individuals, that the van was registered to Perez-

Amaro, and that he had been driving the van. Believing that this might involve


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the smuggling of illegal aliens, the Colorado police requested assistance from the

Immigration and Naturalization Service (“INS”). When INS Special Agent

Edward Tolbert arrived at the scene, he discovered that four passengers had been

transported to a hospital for treatment of their injuries, the five remaining

passengers admitted to being illegal aliens from Mexico who were being

transported in the van, and Perez-Amaro, who had left his driver’s license in the

van, was gone. He was subsequently found and arrested at a nearby hotel.

      On November 5, 2002, INS Special Agent Reynaldo Lovos interviewed

Perez-Amaro in Spanish, after reading him his    Miranda rights. Perez-Amaro

admitted that he knew all the passengers were illegal aliens, and that they had

agreed to pay him for transporting them. He therefore pled guilty to nine counts

of transporting illegal aliens and aiding and abetting.

      Prior to sentencing, the Presentence Investigation Report (“PSR”)

recommended that Perez-Amaro receive two enhancements not mentioned in the

plea agreement. The first, pursuant to United States Sentencing Commission,

Guidelines Manual (“USSG”), §2L1.1(b)(5) (Nov. 2002) was for “recklessly

creating a substantial risk of death or serious bodily injury to another person.”

The second, pursuant to USSG §2L1.1(b)(6)(1), was for “bodily injury” resulting

from the offense. After receiving additional clarifying information, the district

court denied the enhancement for recklessly creating a risk of death or injury,


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finding that the van had been equipped with seatbelts and the proper number of

seats, and that the accident was caused by icy road conditions rather than reckless

driving. The court granted the enhancement for bodily injury because four of the

passengers had been injured in the accident and treated at a local hospital, one for

a fractured ankle and one for a head laceration which required stitches. Finally,

the court considered Perez-Amaro’s motion for downward departure, but

concluded that none of the proffered grounds for departing downward took the

case out of the heartland. The court therefore sentenced Perez-Amaro to fifteen

months imprisonment, at the low end of the Guideline range.



                                      DISCUSSION

       The only two issues on which Perez-Amaro did not prevail at sentencing

were the court’s decision to enhance his sentence for bodily injury resulting from

the accident and its refusal to depart downward.

       I. Bodily Injury Enhancement

       “The district court’s determination of the significance of a bodily injury is a

finding of fact we review for clear error.”         United States v. Brown , 200 F.3d 700,

709 (10th Cir. 1999) (further quotation omitted). 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 attention ordinarily would be sought.” USSG §1B1.1,


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comment. (n.1(b)). We have held that “to be ‘significant’ an injury need not

interfere completely with the injured person’s life but cannot be wholly trivial

and, while it need not last for months or years, must last for some meaningful

period.” Brown , 200 F.3d at 709 (further quotation omitted). “Visible injuries

such as bumps, bruises, and redness or swelling are sufficient to constitute ‘bodily

injury.’” Id.

       The PSR indicated that four of the passengers in the van received medical

treatment for the following conditions: one suffered “a chin abrasion and a

contusion on his left hip”; one suffered a “minimally displaced fracture of the left

ankle”; one was evaluated for “possible spine injuries”; and one had a “scalp

laceration for which he received stitches.” PSR ¶ 24, R. Vol. V. The district

correctly enhanced Perez-Amaro’s sentence because of those “bodily injuries.”

       II. Downward Departure

       “We ‘cannot exercise jurisdiction to review a sentencing court’s refusal to

depart from the Guidelines, either upward or downward, unless the court refused

to depart because it interpreted the Guidelines to deprive it of the authority to do

so.’” United States v. Busekros , 264 F.3d 1158, 1159 (10th Cir. 2001) (quoting

United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999) (collecting cases)).

The district court clearly understood that it had the authority to depart:

             The defendant advances three bases for departure. First, he
       says he attempted to render aid to the victims. Second, he points to

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      what he characterizes as his excellent employment history. Third, he
      cites the fact that he will not have full access to prison programs
      because he is a deportable alien.

            While the first two bases for departure may mitigate the
      sentence to be imposed within the guideline range, the Court is not
      persuaded that they take the case outside the heartland and thus can
      be a basis for departure.

            The third basis does not make this case atypical because there
      are many deportable aliens in the Bureau of Prisons custody who
      have committed immigration offenses and find themselves in this
      same situation.

           The Court therefore declines to depart on any grounds
      advanced or any combination of such grounds.

             The defendant also moves for a downward departure on the
      ground that his calculated criminal history category significantly
      overrepresents the seriousness of his criminal history or the
      likelihood that he will commit further crimes.

            The Court disagrees with this position.

             At the time he committed the [instant] offense, the defendant
      was on probation for a felony, assault with a firearm on a person. He
      has been convicted of several crimes which have not even been
      counted in calculating his criminal history. The Court finds Criminal
      History Category II to be entirely appropriate, and a departure to
      Category I, which is reserved for people with practically no criminal
      history, would be inappropriate.

Tr. of Sentencing, R. Vol. IV at 11-12. The court simply determined that the

facts did not warrant a downward departure. We therefore lack jurisdiction to

review the court’s refusal to depart downward.




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                             CONCLUSION

      We GRANT counsel’s request to withdraw and AFFIRM Perez-Amaro’s

sentence.

                                         ENTERED FOR THE COURT


                                         Stephen H. Anderson
                                         Circuit Judge




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