                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                       REVISED MAY 23, 2006
                                                           February 13, 2006
                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit             Charles R. Fulbruge III
                                                                Clerk


                          No.    04-31138




                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee


                                VERSUS


                       CHRISTOPHER BAILEY,


                                                Defendant-Appellant



          Appeal from the United States District Court
              For the Western District of Louisiana
                          (03-50041-01)



Before JONES, Chief Judge, and KING, and DENNIS, Circuit Judges.

PER CURIAM:1

     The defendant, Christopher Bailey, appeals his conviction and

sentence for committing cruelty to a juvenile at a place under the

exclusive jurisdiction of the United States, in violation of 18



     1
       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this opinion should not be published and is not precedent except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.

                                  1
U.S.C. §§ 7(3) and 13, incorporating La. Rev. Stat. § 14:93.     Mr.

Bailey argues that the evidence was insufficient to support the

jury’s findings that the crime was committed within the confines of

Barksdale Air Force Base, a place under the exclusive jurisdiction

of the United States, and that Mr. Bailey was the perpetrator of

the crime.      Mr. Bailey also argues that the district court’s

imposition of the maximum statutory sentence, 120 months, was

unreasonable.     We find none of Mr. Bailey’s arguments convincing

and affirm his conviction and sentence.

                              Background

     In November and December of 2001, the defendant-appellant,

Christopher Bailey, and his wife, Robin Bailey, lived with their

infant son, P. B., on Barksdale Air Force Base near Shreveport,

Louisiana.   Robin, an active duty senior airman, worked nights on

the base.    Christopher, unemployed, stayed at home and cared for

the baby, P.B..    The Baileys did not employ any child care worker,

daycare, or babysitter, or have any relative care for the infant

during this period.

     On December 14, 2001, at about 2:00 a.m., Christopher called

his wife from their home on the base and told her that the baby’s

“left arm moved where it shouldn’t move.”       She immediately left

work and the two took the baby to the emergency room of a civilian

hospital in Shreveport, Louisiana.         The emergency room doctor

testified that Robin Bailey told him that the infant had not been



                                  2
using his left arm for two days.       She also told the doctor that

when she came home at about 5:30 a.m. on December 13, 2001, “she

noticed that the infant was favoring his arm and when she picked

him up, he would cry and he was more irritable.”    In addition, she

had observed that he had switched which fist or thumb he sucked,

from left to right hands, and noticed before leaving for work on

the 13th that he was guarding his left arm.         The baby had no

bruises or external signs of injury or physical abuse, but appeared

to experience pain when the doctor “palpated or pressed on the area

of his upper arm.”    The baby was slightly less than two months old.

At this point in the emergency room visit, neither parent offered

an explanation for the pain nor described any traumatic happening

affecting the baby.

     Dr. Bounds, the emergency room doctor, ordered x-rays of the

arm to help determine the cause of the pain.     The x-rays revealed

a fracture of the left humerus, a bone in the upper arm. The

fracture was described as “acute,” meaning recent, “displaced”

meaning the two parts of the bone had moved apart, and painful.

Further x-rays revealed another fracture, this one in the right

ulna, one of two long bones between the wrist and elbow.        This

fracture was non-displaced.

     Dr. Bounds suspected abuse because two fractures are unusual

in an eight-week-old child.     The doctor called hospital security,

as a precaution, and went to talk with the Baileys.    The emergency



                                   3
room nurse described Robin Bailey’s behavior and concern as normal,

she offered only one possible explanation, that perhaps the baby’s

blanket had been wrapped too tight.2      In contrast, Christopher

Bailey offered the initial explanation that he had rolled over on

the baby accidentally while the two were napping on the couch four

days earlier.     He then offered several other explanations to

investigators as follows: “Maybe that he might have dropped or

almost dropped [P.B.] and caught him by his arm when he was

playing.    Maybe he slipped through his arms and he grabbed him by

his arm.”   He also told an investigator that he may have pulled the

child too hard to get him out of a car seat.   Christopher told the

investigators that “[P.B.] had been favoring his left arm and

crying more than normal for 2-3 days.”

     The emergency room doctor was required to report suspected

abuse and notified both state and Air Force officials.      The Air

Force and Louisiana Social Services sent investigators to the

emergency room that morning.     The investigators interviewed the

Baileys and the state took the infant into protective custody.

     Later in the investigation the government learned that the

Baileys had taken the infant to the pediatric clinic on the Base in

November because of what looked like a rash on his face and a

scratch on his eye.    P.B. was then about a month old. The nurse

practitioner who saw the baby that day also testified at trial.

     2
       Expert medical witnesses testified at trial that this
could not have caused the baby’s injuries.

                                  4
She testified that the rash on the baby’s face was “petechia” which

she described as small bruises under the skin caused by trauma, or

by coughing or vomiting.     The Baileys told her that the baby had

not been either coughing or vomiting.             The nurse practitioner also

noticed   a   “petechial   rash   in       a    linear   patter   on   the   arm.”

Christopher told her that the baby had rolled off the couch.                  The

nurse practitioner thought this was odd because one-month-old

babies are not physically capable of rolling over.                      She also

observed that while Robin was appropriately concerned, Christopher

was increasingly nervous as she asked more questions.

      The nurse practitioner ordered a full skeletal x-ray.                  While

nothing was detected at the time, during the investigation expert

examination of those x-rays revealed something called a metaphyseal

fracture in the infant’s right radius, which is the other long bone

between the elbow and the wrist.               This fracture was described at

trial as follows:

      It’s a fracture that is seen only in patients 18 months
      and younger. It occurs at the ends of the bone, where
      the bone is still growing. The bones grow in length from
      the ends. And this Fracture occurs transversely across
      this weak bone.    And it can be a very, very subtle
      fracture. It can be over looked without any problem.
Dr.   Boos, an expert in child abuse, testified that P.B.’s

metaphyseal was a classic metaphyseal fracture and further that:

      The classic metaphyseal fracture has been called the
      radiological finding that is most strongly associated
      with abuse, meaning there is no other thing you can find
      in an x-ray that presents stronger evidence -- no other
      single thing that you can find on an x-ray that presents
      stronger evidence of child abuse.        The accidental


                                       5
     fracture of this type is barely ever seen.


Dr. Boos testified that this type of fracture is usually caused if

the bones are “shaken or whipped side to side.”   He also testified

that at his age, P.B. was incapable of inflicting this injury on

himself.

     In addition to the testimony about the cause of the injuries

to P.B., Dr. Boos also testified about the Baileys delay in seeking

treatment.   He testified that the x-rays taken on December 14, 2001

revealed that the fractures in both arms had occurred some time

prior to December 14.    He stated that he was concerned about the

delay in seeking treatment because “whenever there is a delay in

care seeking for an injury as severe as this, as painful as this,

then we would worry why someone is not bringing the child in, and

with, that, worry about child abuse.”    He testified:

     Now, I would hope that any parent who has a child, a very
     young child, not quite two months, who stops using one
     extremity and has a change in temperament toward
     irritability would go to see the doctor. Certainly a
     parent who knew that onset immediately after a trauma
     event would be on even greater notice to do so.


As discussed above, the Baileys told the Emergency Room doctor and

investigators that they noticed at least some of P.B.’s symptoms

two days before they brought him to the hospital or sought any

medical attention.

     During the trial the defense raised the possibility that P.B.

had a condition called osteogenesis imperfecta, “brittle bone”


                                  6
disease.      P.B.’s    little   brother   had   been   evaluated   for   that

condition and the results had been equivocal.             If P.B.’s little

brother has the condition, which is genetic, there is a 50 percent

chance that P.B. has it as well.           The radiologist who examined

P.B.’s x-rays at the hospital in September testified that his bones

looked normal for a two-month-old, except for the fractures.              Dr.

Boos testified that P.B. did not have the characteristics of

children with osteogenesis imperfecta (blue sclera, short for his

age, etc.).

     An expert for the defense, Dr. Harold Chen, chief of perinatal

genetics at the Louisiana Health Science Center in Shreveport,

Louisiana, testified about the different types of osteogenesis

imperfecta including Type IV, a milder form of the disease, which

was once considered rare but now is “one of the most common

variable forms.”       He testified that a child with Type IV would not

necessarily have blue sclera or be abnormally short.           He, however,

testified that he could not reach a conclusion about whether P.B.

suffers from osteogenesis imperfecta of any type.

     Dr. Boos admitted that if a child sustained fractures in a

presumably safe environment it “would suggest that his bones are

more fragile.”    However, P.B.’s foster mother, who has had custody

beginning in May of 2003, testified that since he had been in her

custody P.B. had not suffered any broken bones or other medical

problems.   She testified that she did not take any “special care”



                                      7
with P.B. and that he engaged in usual activities for a child his

age.

       At the conclusion of the trial the jury convicted Christopher

Bailey and acquitted his wife.            At sentencing, the district court

applied the, then mandatory, federal sentencing guidelines. The

court used U.S.S.G. § 2A2.2, the guideline range for aggravated

assault, finding it to be the most analogous guideline.                       The

district court then upwardly departed from that range pursuant to

U.S.S.G. § 5K2.21.

       The court’s upward departure was based on uncharged conduct

discussed in the Pre-Sentence Report. Following the injury to P.B.

and his removal from his parents’ custody, the state of Louisiana

awarded custody to his paternal grandmother, who lived in Colorado

Springs, Colorado.       Upon being discharged from the Air Force in

2002, Robin Bailey, together with her husband, moved to Colorado.

The Baileys lived with P.B. and his grandmother. In February 2003,

they had a second child, A.B.. On May 24, 2003, the Baileys brought

A.B.    to   an   emergency   room   in       Colorado.   X-rays   revealed    20

fractures, including fractures to the femur, tibia, left ulna and

ribs.    The fractures were in different states of healing.                   The

doctors also noted bruising to the infant’s head and cheek.

       When asked for an explanation, Robin Bailey told the doctors

that P.B. had osteogenesis imperfecta, even though physicians had

already ruled it out as the cause of P.B.’s injuries, and opined



                                          8
that it could be the cause of A.B.’s injuries as well.                        The

attending physician found that the injuries were non-accidental,

and thus, inconsistent with osteogenesis imperfecta.                 As noted at

trial,   testing    of    A.B.    for   the    disease    was   equivocal.    The

sentencing judge noted that A.B. had suffered no further injury

once removed from his parent’s care.

     In addition, Christopher told the doctor that on the morning

of May 24, at about 10:00 a.m., he noticed that A.B.’s leg appeared

to be dislocated, but he and his wife left the baby with his

grandmother in order to go house hunting and did not seek medical

care until taking the child to the hospital at 5:00 p.m.                A.B. was

removed from his parent’s custody.

      At sentencing the defendant argued that this uncharged crime

or crimes had not been proven at trial, but offered no further

evidence attempting to disprove the facts as reported in the PSR.

The court sentenced Christopher to the statutory maximum, 120

months imprisonment, to be followed by three years supervised

release.   As noted above, Mr. Bailey appeals both his conviction

and his sentence.

                                    Analysis

                                   Conviction

     Mr.   Bailey        claims   that       the   jury   was    presented   with

insufficient evidence to support his conviction.                He contends that

the government did not prove that the offense occurred in a place



                                         9
under the exclusive jurisdiction of the United States, in this case

Barksdale Air Force Base, as required by the Assimilative Crimes

Act, 18 U.S.C. §§ 7(3) and 13.        He also argues that there was

insufficient evidence to support the jury’s finding that he was the

perpetrator of any alleged cruelty to a juvenile, including (1)

that his acquitted wife was equally likely to be the perpetrator,

(2) that there was insufficient proof of cruelty or abuse, (3) that

there was insufficient proof that the child suffered unjustifiable

pain or suffering, and (4) that there was insufficient proof that

he intentionally or negligently failed to seek timely medical care

for the child.   We are unconvinced by any, and all, of Mr. Bailey’s

arguments and, therefore, affirm his conviction.

                         Standard of Review

     The defendant moved for acquittal following the government’s

case-in-chief and at the close of all of the evidence, therefore,

in reviewing the sufficiency of the evidence this court reviews

denial of the motion for judgment of acquittal de novo. United

States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998).   To do so, the

court determines whether, viewing all of the evidence in the light

most favorable to the government, a rational trier of fact could

have found that the elements of the offense were proven beyond a

reasonable doubt.   Jackson v. Virginia, 443 U.S. 307, 319 (1979);

United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996); United

States v. Meyers, 104 F.3d 76, 78 (5th Cir. 1997).      “Direct and


                                 10
circumstantial evidence are given equal weight, and the evidence

need not exclude every hypothesis of innocence.” United States v.

Dien Duc Huynh, 246 F.3d 734, 742 (5th Cir. 2001)(citation and

internal quotation marks omitted.)

                      Sufficiency of the Evidence

      First, Mr. Bailey argues that there was insufficient evidence

to prove that the alleged offense occurred within the confines of

Barksdale Air Force Base. Mr. Bailey assumes without discussion

that the government must prove this ‘jurisdictional’ element beyond

a reasonable doubt.     The government, however, points out United

States v. Bell, a Fifth Circuit case from 1993 that has never been

directly overruled.    993 F.2d 427 (5th Cir. 1993).      Bell held that

the   preponderance    of   the   evidence   standard   applies   to   the

“exclusive or concurrent jurisdiction” element of the federal

Assimilative Crimes Act.     Id. at 429; 18 U.S.C. §13.    This holding,

as the government admits, has been questioned by a subsequent panel

United States v. Perrien, 274 F.3d 936, 939 n. 1 (5th Cir. 2001).

We share the Perrien court’s concerns and likewise note the Supreme

Court’s discussions of the right to proof beyond a reasonable doubt

afforded by the Due Process Clause and the Sixth Amendment.            See

Apprendi v. New Jersey, 530 U.S. 466, 476 (2000); In re Winship,

397 U.S. 358, 364 (“[W]e explicitly hold that the Due Process

Clause protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the

                                    11
crime with which he is charged.”); United States v. Gaudin, 515

U.S. 506 (1995); Patterson v. New York, 432 U.S. 197 (1977). Again,

however, we need not resolve the issue because we find that the

government met the higher of the two burdens of proof.3   There was

sufficient evidence for the jury to find beyond a reasonable doubt

that the alleged crime was committed on Barksdale Air Force Base.

     Mr. Bailey argues that the government case with respect to the

actual situs of the crime was circumstantial. Mr. Bailey admits

that the government proved that he, and his wife and infant son,

lived on the base during the relevant time period, November and

December 2001.   His brief also admits that at the time of the

alleged crimes his wife worked on the base and that he was

unemployed and the sole care giver during the times that his spouse

was at work, generally between 9:00 p.m. and 5:00 a.m.        It is

reasonable for the jury to infer that a two-month-old baby and his

father would be at home between 9:00 p.m. and 5:00 a.m.   Mr. Bailey

argues that the government produced no eyewitnesses placing the

crime on the base.   It would be extremely unlikely for a parent to

shake an infant, the kind of conduct, doctors testified, that would

cause the kind of injuries suffered by P.B., in the presence of

witnesses, making it reasonable for the jury to infer that such

conduct occurred inside the home. See Perrien, 274 F.3d at 940.



     3
       The jury was instructed to base its finding on this
element using a beyond a reasonable doubt standard.

                                 12
The defendant’s own statements about when he noticed that the child

was not using his arm and crying also support a jury finding that

the defendant was criminally negligent in failing to seek medical

care for his child while present on the military post.

     Second, Mr. Bailey claims that there was insufficient evidence

to prove that he, and not his acquitted co-defendant wife, was the

perpetrator of the abuse.     He argues that the evidence gave equal

or nearly equal support to a theory of guilt or a theory of

innocence, apparently referencing United States v. Lopez, which

held that the court should reverse a conviction where the evidence

“gives equal or nearly equal circumstantial support to a theory of

guilt and a theory of innocence.” 74 F.3d at 577.                Mr. Bailey

suggests that he was convicted while his wife was acquitted because

of   alleged   cultural   stereotypes     holding     that    “stay-at-home

fathers,” or men, in general, are more likely to be violent than

“working mothers,” or women, in general.           He argues that the jury

simply had to pick one of the parents, and they picked him.

     We disagree, there are several things in the record that

render the evidence unequal in its support of paternal and maternal

alternative theories of guilt.    Mr. Bailey was the parent with sole

physical custody of the child for long periods of time.                    In

addition, the pediatric nurse practitioner testified that when both

parents brought P.B. into the clinic to have his eye and rash

examined,   Robin   Bailey   behaved    like   a   normal    mother   in   the



                                   13
situation, while Christopher grew increasingly nervous as she asked

more questions about the cause of the infant’s condition. Further,

Mrs. Bailey offered only one possible explanation for the fractures

to P.B.’s arms.        In contrast, Christopher Bailey made inconsistent

statements to the doctor and investigators. “The evidence does not

need to exclude every reasonable hypothesis of innocence; the jury

is   free       to   choose    among   reasonable       interpretations   of    the

evidence.”        Perrien, 274 F.3d at 939-940 (citations omitted).             The

jury in this case has done so.

       Mr. Bailey also contends that the government failed to present

sufficient evidence to prove the unjustifiable pain or suffering

element of the incorporated Louisiana Cruelty to Juveniles statute.

The defendant’s appears to argue both that the infant was not in

pain       or   suffering     and   that   any   pain    or   suffering   was   not

unjustified as medical care was timely sought.                  Common sense and

the x-rays presented to the jury alone make the argument that the

child was not in pain almost ridiculous.                The x-rays together with

the parents’ statements that the child was not using his arm,

guarding his arm, and crying more than usual, and the expert

testimony of three doctors that a fracture like the one in the

infant’s left arm would be painful, are certainly enough to support

a jury verdict as to this issue.4


       4
        The defendant notes that no pain medication was
administered in the emergency room and that at the time the
infant was brought in the child was not crying or outwardly

                                           14
     As for the argument that the pain and suffering were not

unjustifiable because the Baileys brought the child to the hospital

in a timely fashion, we note that the cause of the injuries is also

relevant to the unjustified nature of the pain.   In any event, the

parents’ testimony indicates that they noticed that the baby was

not using his arm, guarding it, and crying more than usual for two

to three days.     One doctor placed the fractures as happening

anytime between immediately before the x-rays to two or three days

earlier.   Another expert testified that the fractures of the ulna

and humerus had likely occurred some time prior to December 14, the

day the baby was brought to the emergency room.   He explained that

the x-rays supported this finding because generally a few days

after the fracture, the fracture line on a x-ray is widened as the

body cleans up the bone fragments and begins to heal. In the x-rays

of P.B. taken on December 14 the fracture line on his humerus was

“quite wide.”   In combination, the history provided by the parents

and the x-rays provide sufficient evidence for the jury to find

beyond a reasonable doubt that the pain and/or suffering of P.B.

caused by the delay in treatment was unjustified.

                             Sentence

     The defendant was sentenced on October 28, 2004, before the



exhibiting signs of distress. The medical significance of the
absence of the administration of pain medication was not
explained at trial, nor was the lack of outward signs of distress
during that particular time period. The left arm was put in an
immobilizing sling.

                                 15
United States Supreme Court decided United States v. Booker, 543

U.S. 220 (2005).       The defendant has not, however, raised any

argument before this court based on Booker.5         Instead, the defendant

is arguing that the district court misapplied the sentencing

guidelines, that the district court erred in upwardly departing

from the guidelines on the basis of uncharged conduct, and that the

sentence was, on the whole, unreasonable.

                             Standard of Review

     This court reviews a district court’s pre-Booker determination

of the appropriate guideline range de novo.               United States v.

Villegas, 404 F.3d 355, 359 (5th Cir. 2005)(“We conclude that when

a district court has imposed a sentence under the Guidelines, this

Court    continues   after   Booker   to   review   the   district   court’s

interpretation and application of the Guidelines de novo.”) As

discussed in United States v. Smith and United States v. Saldana,

after Booker, we review an upward departure for reasonableness, but

in doing so we use an abuse of discretion standard.             Smith, 417


     5
       This is perhaps wise. Mr. Bailey raised a Blakely based
objection at sentencing and, therefore, review is for harmless
error. Blakely v. Washington, 542 U.S. 296 (2004); United States
v. Pineiro, 410 F.3d 482 (5th Cir. 2005). While the burden is on
the government to prove that the error is harmless, the district
court did depart from the guidelines and sentence the defendant
to the statutory maximum. As the defendant has waived the
argument on appeal, we need not decide whether this is enough,
standing alone, to prove that the court would not have sentenced
the defendant differently under an advisory scheme. Cf. United
States v. Woods, 440 F.3d 255 (5th Cir. 2006); United States v.
Cunningham, 405 F.3d 497, (7th Cir. 2005)

                                      16
F.3d 283, 489-90 (5th Cir. 2005); Saldana, 427 F.3d 298, 308 (5th

Cir. 2005).

                       Applicable Guidelines Range

     The district court applied U.S.S.G. § 2A2.2 as the most

analogous offense guideline for the conviction for “cruelty to a

juvenile” under the Assimilative Crimes Act.              18 U.S.C § 13; see,

e.g., United States v. Calbat, 266 F.3d 358 362 (5th Cir. 2001);

United States v. Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990).                 The

defendant argues that the district court should have applied

U.S.S.G. § A2.3 because P.B.’s injuries did not rise to the level

of “serious bodily injury” as the term is defined by the Guidelines

and used in U.S.S.G. § 2A2.2.

     “Aggravated assault” is defined in the application notes to

U.S.S.G. §2A2.2 as: “[F]elonious assault that involved (A) a

dangerous weapon with intent to cause bodily injury (i.e., not

merely to frighten) with that weapon; (B) serious bodily injury; or

(C) an intent to commit another felony.”           Subsections (A) and (C)

are not at issue, and thus the definition of “serious bodily

injury” is key.        The Sentencing Guidelines define the term as

“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.”              U.S.S.G. § 1B1.1.

     Mr. Bailey argues that P.B.’s injuries were not this severe.


                                      17
He argued, as discussed above, that P.B. suffered no pain.   He also

argues that no surgery, or physical rehabilitation was necessary

and that P.B. was not “hospitalized,” but merely treated in the

emergency room and admitted to the pediatric intensive care unit

for security reasons and not for medical treatment. The definition

of severe bodily injury, however, also includes the “protracted

impairment of a function of a bodily member.”      This Circuit has

noted that severe bodily injury includes temporary severe injury.

See United States v. Price, 149 F.3d 352 (5th Cir. 1998).         A

displaced fractured humerus is impairment of the function of a

bodily member. The baby’s arm was placed in an immobilizing sling,

and had stopped using the arm even before the emergency room visit.

In addition, at least one other circuit has held a fracture to be

a serious bodily injury. United States v. Reese, 2 F.3d 870, 897

(9th Cir. 1993)(“‘Serious’ injury is defined in relevant part to

include “injury involving   . . .    the impairment of a function of

a bodily member. . . .” U.S.S.G. § 1B1.1 at Application Note 1(j).

[The victim] was diagnosed with a fractured elbow and ordered to

wear a sling, and testified that he was unable to write out the

complaint he wished to file with the OHA police because of his

injury. His injury thus unquestionably falls within the definition

set forth by the Guidelines.”). We find no error in the district

court’s use of   U.S.S.G. § 2A2.2 as the most analogous guideline

offense.


                                18
                            Upward Departure

       The district court upwardly departed from a guidelines’ range

of forty-six (46) to fifty-seven (57) months and sentenced Mr.

Bailey   to   the   statutory   maximum   of   120   months.   The   upward

departure was based on U.S.S.G. § 5K2.21, which provides:

       The court may increase the sentence above the guideline
       range to reflect the actual seriousness of the offense
       based on conduct (1) underlying a charge dismissed as
       part of a plea agreement in the case, or underlying a
       potential charge not pursued in the case as part of a
       plea agreement or for any other reason; and (2) that did
       not enter into the determination of the applicable
       guideline range.


The district court expressly adopted the findings of the U.S.

Probation Office as contained in the Pre-Sentence Report and as

discussed above based the departure on uncharged conduct described

therein, specifically injuries sustained by P.B.’s younger brother

A.B.     The court found that the behavior of the defendant with

respect to A.B. was not charged or included in relevant conduct.

He also found that both children were removed from Mr. Bailey’s

custody and placed in foster care.        He also found that the injuries

to both children were severe and involved multiple fractures.           He

further noted that after being removed from the custody of the

defendant and his wife the children had “flourished” and that

neither had since suffered physical injury of any kind.

       Mr. Bailey objected to the upward departure at sentencing and

renews his objections here.      First, he argues that the court heard



                                    19
no evidence about the extent of A.B.’s injuries.         At sentencing,

however, he couched his objection in terms of a failure to prove

the facts to a jury, and when the court asked if he was contesting

the accuracy of the information his attorney said “No, sir.”          It

appears the “information” being discussed was the fact of the

injuries and the removal of the children, and not the defendant’s

responsibility for those injuries and consequent removal.            This

seems to be the most reasonable interpretation of the exchange

because later in the sentencing hearing Mr. Bailey argues the

possibility,   discussed   at   trial,   that   A.B.   has   osteogenesis

imperfecta and that it was this disease, and not any abuse, that

caused the twenty broken bones A.B. suffered as an infant.

     “Presentence reports generally bear indicia of reliability

sufficient to permit reliance thereon at sentencing.”              United

States v. Cabrera, 288 F.3d 163, 172 (5th Cir. 2002); accord United

States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).

     Although a district court must resolve disputed issues of
     fact if it intends to use those facts as a basis for
     sentencing, see Fed.R.Crim.P. 32(c)(3)(D), the court can
     adopt facts contained in a PSR without inquiry, if those
     facts had an adequate evidentiary basis and the defendant
     does not present rebuttal evidence. United States v.
     Rodriguez, 897 F.2d 1324, 1328 (5th Cir.), cert. denied,
     498 U.S. 857, 111 S.Ct. 158, 112 L.Ed.2d 124 (1990).
     Furthermore, the defendant has the burden of showing that
     information that the district court relied on in
     sentencing is materially untrue.


United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994).

In this case, the defendant failed to put on any rebuttal evidence

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at sentencing.    At best, he referred to evidence introduced at

trial about the possibility that his son A.B. has osteogenesis

imperfecta.   As discussed above, a skin biopsy performed on A.B. to

test for the disease was equivocal and no doctor testified that

A.B. had been diagnosed with the disease.       The sentencing judge

specifically noted that A.B. had flourished since being removed

from his father’s custody and apparently remained unconvinced by

Mr. Bailey’s argument that his son suffered from osteogenesis

imperfecta and not child abuse. The uncharged conduct described in

the PSR adopted by the trial court and which the court specifically

discussed in its sentencing decision is sufficient to support an

upward departure under U.S.S.G. § 5K2.21.       We find no abuse of

discretion in the district court’s decision to upwardly depart from

the applicable guidelines’ range.

     Finally, Mr. Bailey argues that his 120-month sentence, as a

whole, is unreasonable. See 18 U.S.C. § 3553(a).   He argues that he

is not the worst kind of offender for whom the statutory maximum

punishment should be reserved.    He points out that he was a first

time felony offender, a new parent, and only twenty-one at the time

of the offense.    He also argues that the crime had no pecuniary

motive and did not entail planning or forethought.       Finally, he

emphasizes that the incorporated Louisiana cruelty to juveniles

statute includes not only intentional conduct, but also criminally

negligent treatment or neglect.       The defendant asserts that the

jury could have found him guilty based only on a finding of neglect

                                 21
or criminal negligence, and thus, a sentence at the statutory

maximum is unreasonable.          We disagree.      We address Mr. Bailey’s

last argument first.         The statutory maximum for this criminal

statute is specific to the crime.              The statutory maximum applies

equally to intentional and criminally negligent mistreatment or

neglect. La.       Rev.   Stat.   §   14:93.     The   Louisiana     Legislature

apparently concluded that some instances of criminally negligent

mistreatment could warrant ten years imprisonment.              In this case,

it is possible that the jury convicted based only on a finding of

criminal negligence. The sentencing judge, however, appears to have

found that the mistreatment was intentional.            He also specifically

noted the severity of the injuries to both children.                  Given the

vulnerability and defenselessness of the infants, the severity of

the injuries, the failure to timely seek medical attention, the

repeated instances of abuse, and the lack of any expressed remorse,

we   find   that    the   sentence     imposed    by   the   trial    court   was

reasonable.

      AFFIRMED.




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