               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 96-20610
                          Summary Calendar
                       _____________________


          UNITED STATES OF AMERICA,

                               Plaintiff-Appellee,

          v.

          DEON TARRAL MCDANIEL,

                               Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (CR H-95-235-1)
_________________________________________________________________
                           April 16, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

     Appellant Deon Tarral McDaniel appeals his guilty-plea

conviction and sentence for bank robbery and carrying a firearm

in connection with the robbery.   Finding no error, we affirm.

                          I.   BACKGROUND

     In August 1995, McDaniel, along with his three codefendants

Samora Ahmed-Hafam Edwards, Louis Bernard Davis, and Howard Earl



     *
      Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
Thomas, entered Bank One in Missouri City, Texas, yelling

obscenities, making threats, and announcing a hold up.     Present

during the robbery were bank manager Elva Vasquez, tellers Kim

Mullen and Sunita Kalsi, financial sales representative Jill

Sheppard, contract maintenance man Gregory Martin, and customers

Tamara Curvey and Herman Gillman.     When the robbery began,

Vasquez activated the silent alarm and got under her desk along

with one of the customers.    Two of the defendants threw Mullen

and Kalsi to the floor and then screamed for someone to open the

vault.    One of the men asked Kalsi for the key to the vault,

grabbing her by the hair and hitting her in the head with his

fist as he made the request.    When Kalsi informed the robber that

the manager had the keys, the robber dragged Curvey by the hair

from her hiding place under Vasquez’s desk and shoved her to the

floor.    The defendants threatened to kill someone if keys were

not produced.    Vasquez told the defendants that she had the keys

to the vault.    Upon learning this, one of them grabbed Vasquez by

the hair and dragged her to the vault.     Meanwhile another

defendant bound the hands of the tellers and of Martin with duct

tape.    Martin was hit in the back of the head and neck with a

pistol butt.    When the defendants discovered that Vasquez did not

have the combination to the vault, one of them struck her on the

left side of her face, dislocating her jaw, and threatened to

kill her.    Kalsi was then dragged by the hair to the vault to

provide the combination.    Kalsi was hit on the head and had the

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duct tape ripped from her hands.       The robbers were told that the

vault could not be opened because of a time delay.      Upon learning

this, the defendants again struck Vasquez and Kalsi in the head.

The defendants took money from the tellers’ drawers and fled as

police arrived.

     The defendants entered a waiting car and left the bank’s

parking lot with the police in pursuit.      As they sped away, they

fired upon Missouri City police officer J. H. Lemerond.      The

chase proceeded to a residential neighborhood where the

defendants continued their gunfire.      When two officers

established a roadblock, defendants, firing approximately two

rounds, drove past the road block, onto a curb, over a mailbox,

and down a residential road.

     Neighborhood resident Kim Vo was out in her yard and had to

run inside to avoid gunfire.    After passing Vo, the car cut

between two houses that border a golf corse.      The car slowed;

Thomas and Edwards jumped out of the vehicle and into a water

hazard where they were apprehended.      McDaniel and Davis continued

their flight in the car.   When the car drove past resident

Jennifer Marie Burkhalter and her sixteen month old son, one of

them opened the door and pointed a gun.

     The car stopped after a near-collision with a police car

forced it into a nearby yard.    Davis immediately surrendered, but

McDaniel continued his flight on foot before he was apprehended.

Lab reports showed that Thomas and McDaniel’s hands contained

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trace metals consistent with firing a weapon, handling a fired

weapon, or being in immediate proximity to a fired weapon.

     All four defendants pleaded guilty.      McDaniel received 355

months imprisonment, five years of supervised release on count

one (robbery), two concurrent years supervised release on count 2

(use of a firearm during a crime of violence), a fine of $10,000,

restitution in the amount of $5403.51, and a special assessment

of $100.

     McDaniel timely appealed.    On appeal, McDaniel argues that

the district court erred in increasing his offense level under

section 2B3.1 of the Sentencing Guidelines based on serious

bodily injury to a victim -- Vasquez -- because Vasquez’s

injuries were not “serious” and because that section of the

Sentencing Guidelines is unconstitutionally vague.      McDaniel also

argues that the district court failed to follow the requirements

of Rule 11 of the Federal Rules of Criminal Procedure when it

took his plea.   We reject each of these arguments.

                          II.    DISCUSSION

     A.    The trial court did not clearly err in determining that
           Vasquez suffered serious bodily injury.

     The Sentencing Guidelines provide for a two level increase

if, during a robbery, a victim sustained bodily injury or a four

level increase if a victim suffered serious bodily injury.      U.S.

SENTENCING GUIDELINES MANUAL § 2B3.1(b)(3) (1995) [hereinafter USSG].

McDaniel argues that the district court erred in applying the

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adjustment because the injuries Vasquez suffered were not serious

and so he should thus only be subjected to a two-level increase

for bodily injury.

     The seriousness of Vasquez’s injuries “is a fact inquiry

reviewable only for clear error.”       United States v. Davis, 19

F.3d 166, 171 (5th Cir. 1994).    “Bodily injury” is defined 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 commentary at 1(b).     In contrast,

“serious bodily injury” is an “injury involving extreme physical

pain or the impairment of a function of a bodily member, organ,

or mental faculty; or requiring medical intervention such as

surgery, hospitalization, or physical rehabilitation.”       Id. at

1(j).

     The probation officer described Vasquez’s injury in the

following manner:

     Following the robbery, Vasquez went to her dentist
     . . . who advised that her jaw had been dislocated.
     She was referred to an oral surgeon [who] . . . .
     verified the dislocated jaw, but indicated that the jaw
     had worked its way back into a normal position and no
     surgery would be required. . . . Vasquez stated that
     she was unable to fully open her mouth or eat “regular”
     food for 90 days. She also experienced severe
     headaches, sleeplessness, nightmares and anxiety for
     approximately 90 days following the robbery.

Vasquez returned to work the next day.

     McDaniel concedes that such an injury is a bodily injury but

denies that it is a serious one.       Although Vasquez did not

                                   5
require hospitalization or rehabilitative service, the use of her

jaw was impaired, as described in n.1(j), for ninety days.     As

the First Circuit recently noted, “[t]o impair, generally, means

to diminish or decrease,” and there is no requirement of

duration.    United States v. Page, 84 F.3d 38, 43 (1st Cir. 1996).

The evidence shows that Vasquez’s dislocated jaw prevented normal

use of her mouth for ninety days.     Based on this evidence, the

district court did not clearly err in determining that the

dislocation diminished the functioning of her mouth and jaw,

therefore meeting the definition of “serious bodily injury.”

     B.     The Sentencing Guideline is not unconstitutionally
            vague.

     McDaniel argues that the definition of “serious bodily

injury” is unconstitutionally vague because it does not provide

an objective criteria to aid the fact-finder in determining

whether an injury involves extreme pain and, thus, constitutes a

serious bodily injury.    McDaniel contends that the resulting

subjective analysis used by the fact-finder will produce

disparate results and, as a result, the definition will not

provide an offender fair warning of proscribed conduct.

     We find McDaniel’s argument meritless because the district

court’s finding that Vasquez’s injuries were serious can be

supported under the bodily function impairment prong without

reference to the extreme pain prong of the serious bodily injury



                                  6
definition.   Thus, McDaniel’s vagueness contention has no bearing

on this case.

     C.   The district court did not commit any harmful error
          under Rule 11 in taking McDaniel’s plea.

     McDaniel pleaded guilty, and at his plea hearing, the court

advised him of the applicable sentencing guidelines for count 2

in the following manner:

          The Court: Count 2, violation of Title 18,
          United States Code, Section 924(c)(1), which
          is use of a firearm during and in relation to
          a crime of violence. The penalty range is a
          consecutive sentence of five years. And if
          the firearm used is a short barreled rifle,
          short barreled shotgun or a semi-automatic
          assault weapon, a consecutive sentence of 10
          years. Sentencing Guidelines will apply to
          that Count also. There is a supervised
          release period not to exceed three years.
          And on each Count, Count 1 and Count 2,
          there’s a $50 Special Assessment for a total
          of $100.

               Now, “consecutive sentence,” for those
          of you who may be familiar or not familiar
          with the term, means a stacked sentence.
          That’s a different slang term that we use in
          the legal system. Make sure you understand.
          That sentence is going to be stacked on top
          of the one I give you in Count 1. That’s
          what “consecutive” means. You serve the term
          on Count 1, whatever term you end up getting,
          and then you have to serve five years on
          Count 2.

(emphasis added).   McDaniel argues that the trial court erred in

the last statement by telling him that he would be subject to a

five year minimum penalty on count 2 when he was really subject

to a ten year minimum penalty.   McDaniel claims this violates


                                 7
Rule 11, which requires the trial court to inform the defendant

of the mandatory minimum and maximum penalties before accepting a

guilty plea.

     It is unclear if the trial court actually committed an error

in the plea colloquy because the court initially told McDaniel

the correct penalty range.    While the court later may have made a

misstatement, it was in the context of defining what

“consecutive” means, not in informing McDaniel of the penalty

range.

     Assuming arguendo that the trial court did err, we conclude

that the error is not reversible because McDaniel was not harmed.

The circumstances indicate that McDaniel knew the correct penalty

to which he was subject.    The probation officer recommended ten

years for count 2, and not once did McDaniel complain that he had

misunderstood the potential penalty or seek to withdraw his

guilty plea.    McDaniel never even argues that if he had received

the correct information, it would have impacted his decision to

plead guilty.    A Rule 11 error is not harmful unless “the

defendant’s knowledge and comprehension of the full and correct

information would have been likely to affect his willingness to

plead guilty.”    United States v. Johnson, 1 F.3d 296, 302 (5th

Cir. 1993)(en banc).    Thus, any Rule 11 error the trial court may

have committed is harmless.

                           III.   CONCLUSION



                                   8
     For the forgoing reasons, we AFFIRM McDaniel’s guilty-plea

conviction and sentence.




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