                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        January 3, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 12-6121
                                                   (D.C. No. 5:11-CR-00303-F-1)
KEEGAN VAN TUYL,                                           (W.D. Okla.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before KELLY, McKAY, and O’BRIEN, Circuit Judges.


      Keegan Van Tuyl appeals his conviction and sentence for assault resulting in

serious bodily injury in violation of 18 U.S.C § 113(a)(6). Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                          Evidence of Serious Bodily Injury

      Van Tuyl stipulated that he assaulted another prisoner in a holding cell at the

Federal Transfer Center in Oklahoma City on December 1, 2010. He contends the

evidence was insufficient to support the district court’s finding, after a bench trial,

that the victim’s injury constituted a “serious bodily injury.”

      “We review sufficiency-of-the-evidence claims de novo[.]” United States v.

Cope, 676 F.3d 1219, 1225 (10th Cir. 2012) (quotation omitted). In doing so, we

view the evidence and all reasonable inferences in the light most favorable to the

government. See id. “Evidence is sufficient to support a conviction if . . . a rational

trier of fact could find guilt beyond a reasonable doubt.” Id. (quotation and brackets

omitted). Moreover, “[w]e will not weigh conflicting evidence or second-guess the

fact-finding decisions of the district court.” Id. (quotation omitted).

      For purposes of a conviction under § 113(a)(6), the term “serious bodily

injury” is defined in 18 U.S.C. § 1365 as: “bodily injury[1] which involves-- (A) a

substantial risk of death; (B) extreme physical pain; (C) protracted and obvious

disfigurement; or (D) protracted loss or impairment of the function of a bodily

member, organ, or mental faculty.” Id. § 1365(h)(3); see also § 113(b)(2)

(incorporating § 1365 definition). The district court found beyond a reasonable


1
       A “bodily injury” is further defined as “(A) a cut, abrasion, bruise, burn, or
disfigurement; (B) physical pain; (C) illness; (D) impairment of the function of a
bodily member, organ, or mental faculty; or (E) any other injury to the body, no
matter how temporary.” 18 U.S.C. § 1365(h)(4).


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doubt that Van Tuyl’s victim suffered extreme physical pain, as well as protracted

impairment of the function of both of his eyes and his left ear. See 18 U.S.C.

§ 1365(h)(3)(B), (D).

      Because the victim had no memory of being in pain immediately after the

assault, the district court relied on the testimony of a nurse who observed him in an

urgent care room before he was transported to a hospital by ambulance. The nurse

testified that the victim was bleeding from his eye and his ear, and one of his eyes

was swollen shut. The nurse rated his pain level as a “10” on a scale of 0-10, and she

said that he remained in extreme pain until the ambulance arrived. The district court

also cited the nature of the assault and the extent of the victim’s injuries, in finding

that they involved extreme physical pain. Based on a video tape of the attack, the

court found that Van Tuyl hit the victim with approximately ten serious blows with

his fist and three with his foot. A CAT scan revealed that the victim suffered

fractures to his face and skull, and there was also evidence that he received morphine

in the hospital. The victim testified that he experienced a continuing hearing loss due

to constant ringing or buzzing in his left ear, and he also had an ongoing loss of

vision. The district court found the victim’s testimony to be credible.

      Van Tuyl argues that the evidence is insufficient to support the district court’s

finding that the victim suffered serious bodily injury. But his contentions merely

invite this court to re-weigh evidence and second-guess the district court’s credibility

determinations. See Cope, 676 F.3d at 1225 (“Where conflicting evidence exists, we


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do not question the fact-finder’s conclusions regarding the credibility of witnesses or

the relative weight of evidence.” (quotation and brackets omitted)).

      Van Tuyl first points to the victim’s testimony that his pain resulting from the

attack was not as severe as the pain he experienced from a previous burn-related

injury. But that testimony described the victim’s pain from ongoing headaches,

which the district court expressly did not rely on in finding that he had experienced

extreme physical pain. Van Tuyl next argues that the district court erred in relying

on the nurse’s testimony regarding the victim’s level of pain because it was

inconsistent with the video tape of the assault, which showed that the victim got up

from the floor and walked unassisted, while conversing with prison personnel. But

the court found that the victim’s behavior on the tape was “neither terribly surprising

nor inconsistent with extreme physical pain and protracted loss or impairment of the

function of a bodily member, organ, or mental faculty.” R., Vol. 3, pt. 1 at 74.

Van Tuyl also maintains that the victim’s behavior observed by the nurse could easily

be faked or exaggerated and that he had a motivation to do so. But the district court

emphasized that the nurse had perceived the victim’s level of pain based on her

seventeen years of experience and she did not suggest that he was faking or

malingering.

      Regarding the district court’s finding that the victim’s injuries involved

protracted loss or impairment of the function of bodily organs, Van Tuyl asserts that

the effects described by the victim are not objectively measurable and they involve


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conditions that occur naturally in the aging process. He notes that the sole evidence

of these conditions was the victim’s testimony. But, again, the district court found

that testimony to be credible.

      Based on the evidence cited by the district court, we are not persuaded that a

rational trier of fact would be unable to find beyond a reasonable doubt that

Van Tuyl’s victim suffered “serious bodily injury” as defined by § 1365(h)(3). We

therefore affirm his conviction under § 113(a)(6) for assault resulting in serious

bodily injury.

                             Reasonableness of Sentence

      Van Tuyl also argues that his sentence is unreasonably long. Because he does

not challenge the district court’s calculation of the applicable guidelines range, we

consider only whether his sentence is reasonable in light of the factors listed in

18 U.S.C. § 3553(a). See United States v. Valtierra-Rojas, 468 F.3d 1235, 1238

(10th Cir. 2006). “The district court has significant discretion in sentencing, and our

review for reasonableness, regardless of whether the sentence falls inside or outside

the advisory Guidelines, is a review for abuse of discretion.” United States v.

Tindall, 519 F.3d 1057, 1065 (10th Cir. 2008).

      The district court found that Van Tuyl’s applicable guidelines range was 37 to

46 months’ imprisonment. He asked for a sentence within that range, and the

government argued for a sentence above it. The court sentenced him to 108 months’

imprisonment, citing the following evidence: Van Tuyl’s unprovoked attack on the


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victim; his status as a founding member of two related white-supremacist

organizations aimed at encouraging and committing hate crimes against racial

minorities; his persistence, even after incarceration, in recruiting like-minded

individuals to join these groups; his violent, assaultive conduct going back to 2004;

and his continued assaultive conduct and destruction of property while incarcerated.

      The court concluded that the most relevant sentencing factors were the need to

protect the public, the need to reflect the seriousness of the offense, and the need to

provide just punishment. See § 3553(a)(2)(A), (C). It found that the sheer cruelty of

the assault in this case, against the backdrop of Van Tuyl’s history of assaultive

conduct, showed that the guidelines range was insufficient to reflect the seriousness

of the offense. It cited the lack of provocation for the attack as supporting a longer

sentence to provide just punishment. Finally, the court stated that the predominant

sentencing factor—by far—was the need to protect the public from further crimes by

Van Tuyl, concluding that “only incarceration can protect the general public from the

defendant’s demonstrated desire to hurt people.” R., Vol. 3, pt. 2 at 90. Thus, the

court found that a sentence substantially in excess of the guidelines range was

warranted in this case.2



2
       The district court also concluded that deterrence of similar conduct by other
individuals was a significant sentencing factor, while acknowledging that deterrence
of Van Tuyl was less significant because he “seek[s] out opportunities to hurt people
even when he knows that he will face serious consequences for that conduct.”
R., Vol. 3, pt. 2 at 89.


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      Van Tuyl contends that 108 months’ imprisonment is an enormous deviation

of 62 months above the top of the applicable guidelines range. He argues that none

of the district court’s cited bases, individually or taken together, supports such a

lengthy sentence. He first challenges the court’s characterization of the assault,

asserting that it was no worse than a typical bar fight. But the district court

disagreed, finding that Van Tuyl inflicted thirteen “serious blows” to the victim with

his fist and foot. Id., Vol. 3, pt. 1 at 70. The court also noted that Van Tuyl walked

across the holding cell and attacked the victim without provocation. See id., Vol. 3,

pt. 2 at 85. We must defer to the district court’s factual findings. See United States

v. Smart, 518 F.3d 800, 808 (10th Cir. 2008).

      Van Tuyl also maintains that the district court erred by relying on the lack of

provocation. He asserts that the crime of assault assumes there was no provocation

and that the guidelines already take this factor into account. But “district courts are .

. . allowed to contextually evaluate each § 3553(a) factor, including those factors the

relevant guideline(s) already purport to take into account.” Id. Thus, the district

court did not abuse its discretion by emphasizing, as relevant to the need to provide

just punishment, the fact that Van Tuyl attacked the victim without provocation.

      He next argues that the district court should not have increased the length of

his sentence based on his history of violent conduct because he had already been

punished for some of the incidents the court cited by the revocation of a previous

term of supervised release. He also minimizes the seriousness of his prior conduct.


                                          -7-
But the district court was particularly concerned with Van Tuyl’s history of

assaultive conduct in light of the evidence of his persistent efforts to recruit new

members into his white-supremacist groups and his continued commitment to the

objectives of those groups. In response to Mr. Tuyl’s allocution, in which he spoke

of his decision to stay out of trouble, the court commented, “[Y]ou have put me to a

choice. You have required me to decide whether I should be persuaded by what you

say or what you have done. I find what you have done much more persuasive than

what you say.” R., Vol. 3, pt. 2 at 87-88. We cannot say that the district court’s

consideration of Van Tuyl’s previous violent conduct in this context was an abuse of

discretion.

       Van Tuyl also takes issue with the district court’s conclusion that a long

sentence was necessary to protect the public from his criminal activity. He contends

that a within-guidelines sentence would be long enough for him to demonstrate that

he has changed his behavior, and if he fails to do so, he could be prosecuted again

and sentenced to more prison time. He claims that a shorter sentence with the

possibility of further prosecution would sufficiently protect the public. But the

district court concluded otherwise, and Van Tuyl provides no basis for us to find that

it abused its discretion in doing so.

       Finally, Van Tuyl cites statistics regarding sentences imposed for federal

assault offenses, arguing that his sentence is more than twice as long as the average.

But the government points out that the statistics he cites address all types of assaults


                                          -8-
and do not take into account the particular circumstances of an offense or the

offender’s history and characteristics. Consequently, Van Tuyl’s disparity argument

fails. See Tindall, 519 F.3d at 1066 (rejecting disparity argument where defendant

“failed to explain how his circumstances-criminal history as well as conduct-are

similar to those with which he seeks to draw a comparison”). Van Tuyl has

identified no error that would allow us to conclude that the district court imposed a

substantively unreasonable sentence.

      The judgment of the district court is affirmed.


                                               Entered for the Court


                                               Paul J. Kelly, Jr.
                                               Circuit Judge




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