                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                     PUBLISH
                                                                     November 8, 2006
                    UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
                                                                        Clerk of Court
                                TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
       v.                                                No. 05-4218
 FRA NCISCO M EJIA-CA NALES,

              Defendant-Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                      FOR T HE DISTRICT OF UTAH
                     (D .C . N O. 1:05-CR-00011-001 TC)


Kent R. Hart, Utah Federal Defender’s Office (Steven B. Killpack, Utah Federal
Defender, with him on the briefs), Salt Lake City, UT, for A ppellant.

Richard M cKelvie, Assistant United States Attorney (Stephen J. Sorenson, Acting
United States Attorney, with him on the brief), Salt Lake City, UT, for Appellee.


Before HA RTZ, EBEL, and M cCO NNELL, Circuit Judges.


M cCO NNELL, Circuit Judge.




      Defendant challenges a two-level sentencing enhancement for bodily injury

inflicted during a scuffle with a police officer. Because the district court did not
have before it evidence sufficient to support this enhancement, we find it

comm itted clear error and remand for resentencing.

I. BAC K GR OU N D

      On November 21, 2004, while incarcerated as a federal inmate in the W eber

County Jail, Francisco M ejia-Canales ignored orders to cease walking away from

police officers. W hen an officer extended his arm to impede M r. M ejia-Canales,

the inmate turned and struck the officer twice with his fist, once on the mouth and

once on the forehead. The government indicted M r. M ejia-Canales for assault on

a federal officer, a violation of 18 U.S.C. § 111. M r. M ejia-Canales pleaded

guilty to the charge.

      The presentence report (“PSR”) calculated an offense level of thirteen,

which consisted of a base offense level of ten, three additional levels because the

offense involved physical contact, two additional levels because the victim

sustained bodily injury, and a two-level deduction for acceptance of

responsibility. See United States Sentencing Guidelines M anual (“USSG ”) §§

2A2.4, 3E1.1 (2005). At sentencing, the primary evidence bearing on the nature

of the injuries was a statement in the PSR that, as a result of the assault, the

officer “sustained a small laceration on the inside of his mouth and a red mark on

his forehead,” and that, per jail policy, he reported to the infirmary, where he was

provided ibuprofen for his forehead and an oral gel for the cut in his mouth. R.

Vol. III, at 2. In addition, the government entered three photographs into the

                                          -2-
record— one of the officer’s head and two of his mouth. All three photographs

are of particularly poor quality and cast little light on the nature of the officer’s

injuries, especially his head injury, which is indiscernible in the photograph.

Aside from these photographs, the government introduced no additional evidence.

The officer did not testify and there was no medical evidence, no evidence

regarding pain, and no evidence regarding lingering effects or subsequent

treatment.

      M r. M ejia-Canales objected to the recommended enhancement for infliction

of bodily injury, contending that the injuries sustained by the officer were too

trivial to qualify. The district court, after considering the PSR, the three

photographs, and M r. M ejia-Canales’ arguments, concluded:

      [I]t seems to me that his injuries were not trivial. I see trivial
      injuries as something like a slight cut, a slight bruise. Anything that
      requires some pain medication, even though it’s Ibuprofen and that
      involves laceration in the mouth area— and it appears from what I
      read that what happened was his tooth probably cut his lip. I think
      we can all take note, and I could take judicial notice, that injuries to
      the mouth just are in and of themselves very painful. Because of the
      mouth area and the saliva, they don’t heal fast. You have to eat
      around them.
             I don’t see this as trivial.

R. Vol. II, at 5. The court thus applied the bodily injury enhancement and

sentenced M r. M ejia-Canales to twenty-four months’ incarceration, the bottom of

the Guidelines range.




                                           -3-
II. D ISC USSIO N

      M r. M ejia-Canales argues that the government did not present evidence

sufficient to prove “bodily injury” under the Guidelines, and that the injuries

inflicted in this case simply do not qualify for enhancement. W e agree that the

evidence was insufficient to support the enhancement.

      The relevant Sentencing Guideline limits the definition of “bodily injury”

to those that are “significant.” USSG § 1B1.1 cmt. n.1(B). It gives as examples

“an injury that is painful and obvious, or is of a type for which medical attention

ordinarily would be sought.” Id. This Court has explained that to be

“significant” a bodily 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.” United States v. Brown, 200 F.3d

700, 709 (10th Cir. 1999) (internal quotation marks omitted). In addition, “it is

the actual nature of the injury sustained and not generalized statements

concerning the nature of the conduct . . . that must be the focus of the district

court’s determination” of bodily injury. United States v. Perkins, 132 F.3d 1324,

1326 (10th Cir. 1997); see also United States v. Guerrero, 169 F.3d 933, 946 (5th

Cir. 1999) (“[T]he focus of the inquiry is not on the actions of the defendant, but

rather on the injury sustained.”). W ith these principles in mind, we review the

district court’s factual finding of bodily injury for clear error. See Brown, 200

F.3d at 709.

                                         -4-
      In every reported case where a “bodily injury” enhancement has been

upheld against a challenge based on the significance of the injury or the

sufficiency of the evidence presented, the record before the district court

demonstrated injuries that were more severe than those here, were painful and

lasting, or w ere of a type for w hich medical treatment would ordinarily be sought.

See Brown, 200 F.3d at 709 (upholding enhancement where “the victim sustained

bleeding and a severe headache” from a beating, “as well as swelling, bruises,

cuts and lumps on his face”); Perkins, 132 F.3d at 1326 (upholding enhancement

where the victim suffered a small laceration, bruising, and continued neck and

shoulder pain, which caused the victim to seek chiropractic care); United States v.

Ledford, 218 F.3d 684, 690–91 (7th Cir. 2000) (upholding enhancement where

one beating victim suffered chest pain that necessitated medical tests and the

other victim suffered bruising after being struck with a gun in the head and ribs);

United States v. Hargrove, 201 F.3d 966, 968–70 (7th Cir. 1999) (upholding

enhancement where victim suffered a pulled neck muscle, sought medical

attention, and was prescribed muscle relaxants for pain and discomfort, and

finding that such injuries “ordinarily necessitate medical attention”); United

States v. Hoezler, 183 F.3d 880, 882–83 (8th Cir. 1999) (upholding the district

court’s reliance upon a victim’s testimony regarding her injuries, which included

bruises to her face, chest, and legs); United States v. Pandiello, 184 F.3d 682,

685–86 (7th Cir. 1999) (upholding a bodily injury enhancement where one

                                         -5-
beating victim suffered a red welt on his forehead and a shoeprint mark on his

back and another victim suffered bruised arms and a “wrenched shoulder” that

resulted in “persistent . . . pain” and required an x-ray); United States v. Taylor,

135 F.3d 478, 482 (7th Cir. 1998) (upholding enhancement where victims sprayed

with pepper spray sought medical treatment and suffered burning and irritated

skin in the face and mouth area); United States v. LeCompte, 108 F.3d 948, 950

(8th Cir. 1997) (upholding enhancement where the victim of a severe beating

suffered several injuries including a “deep laceration” requiring suturing); United

States v. Robinson, 20 F.3d 270, 278–79 (7th Cir. 1994) (upholding enhancement

where victims were sprayed with mace and “experienced pain which lasted for

hours and had some residual effects for days”); United States v. Hamm, 13 F.3d

1126, 1127–28 (7th Cir. 1994) (upholding enhancement where evidence showed

that the victim “suffered bumps and bruises[,] had ‘the wind knocked out of

him,’” and “sustained a back injury requiring chiropractic treatment”); United

States v. Greene, 964 F.2d 911, 911–12 (9th Cir. 1992) (upholding enhancement

where the victim suffered pain for a week and sought medical treatment after

being slapped); United States v. M uhammad, 948 F.2d 1449, 1455–56 (6th Cir.

1991) (upholding enhancement where the victim suffered “numerous abrasions,”

“hyperextension of his shoulder” necessitating medical examination, and

“soreness in his knees and elbow for two weeks”); United States v. Isaacs, 947

F.2d 112, 114 (9th Cir. 1991) (noting that a victim’s testimony that his injury was

                                          -6-
not painful was likely fabricated to cover for his assailant and was contradicted

by other eyew itness testimony of the victim’s response to a beating). 1

      The government’s best case is probably Perkins. There, this Court upheld a

district court’s application of a bodily injury enhancement based “upon

information in the presentence report indicating that [a] security guard sustained a

‘small laceration and bruising’ and that he experienced continued neck and

shoulder pain causing him to seek chiropractic treatment.” 132 F.3d at 1326. In

upholding this finding, we cautioned:

      Certainly it would have been helpful and prudent for the government
      to provide more detailed information concerning the medical
      treatment . . . received. Nevertheless, because it is undisputed that
      the guard sustained visible and lingering injuries of a type courts
      have found to constitute ‘bodily injury,’ we cannot conclude the
      district court committed clear error . . . .




      1
       The same holds true for the unreported cases cited by the government in its
brief. See United States v. Perez-Amaro, 91 Fed. Appx. 649, 651 (10th Cir. 2004)
(unpublished opinion) (upholding a bodily injury enhancement where the victims
received medical treatment for a chin abrasion and hip contusion, a left ankle
fracture, possible spinal injuries, and a scalp laceration requiring stitches); United
States v. M artinez, 60 Fed. Appx. 428, 429 (4th Cir. 2003) (unpublished opinion)
(upholding enhancement where the victim suffered back and neck contusions and
sought medical treatment, and noting that such injuries ordinarily necessitate
medical attention).

                                      -7-
Id. The meager record in this case 2 indicates that M r. M ejia-Canales’s victim

suffered visible injuries less severe than those at issue in Perkins and, unlike in

Perkins, there was no evidence that those injuries were painful or lasting.

      Two injuries are at issue in this case: a minor head injury and a small oral

cut. The officer’s head injury consisted only of a red mark— without any reported

sw elling, bleeding, or bruising. Such a mark is not, in and of itself, necessarily

painful or obvious, and the record in this case contains no evidence regarding the

painfulness or duration of this injury. As for the oral cut suffered by the officer,

the district court took “judicial notice”— in context, meaning the application of

common sense and experience to conclude— that oral injuries do not heal quickly.

But as anyone who has bitten his tongue or lip while chewing can attest, such a

conclusion is far from ineluctable. Oral injuries come in all varieties— some

lasting and some fleeting, some painful and some scarcely so. The district court

had before it only the PSR ’s cursory description of a “small laceration” and two

photographs of the officer’s mouth, which are of such poor quality that they could

lend no support to a factual finding.   Such evidence, which speaks to neither the

lasting nor the painful nature of the injuries, is insufficient for a finding of bodily

injury in a case where the visible evidence alone is not enough to prove



      2
       Although a district court cannot, without issuing a ruling on the matter or
determining that a ruling is unnecessary, accept as a finding of fact “any disputed
portion” of a PSR, Fed. R. Crim. P. 32(i)(3)(A )–(B), the parties in this case both
accept the PSR’s factual description of the officer’s injury.

                                          -8-
significance. See United States v. Harris, 44 F.3d 1206, 1218 (3rd Cir. 1995)

(noting “the necessity of sentencing courts making a factually specific inquiry in

each case as to whether the injury was ‘painful and obvious,’ was ‘of a type for

which medical attention ordinarily would be sought,’ or was more than

insignificant for some other reason”). Furthermore, the PSR’s description of the

cut as “small” is in some tension with the G uidelines’ requirement that an injury

sufficient for enhancement be “significant.” Cf. United States v. Dodson, 109

F.3d 486, 489 (8th Cir. 1997) (“Characterizing injuries as ‘minor’ is not

consistent with the Guidelines definition of ‘bodily injury’ as ‘significant

injury.’”) Thus, even though the clear error standard has been applied

forgivingly in bodily injury enhancement cases, 3 here the district court’s finding

      3
          As the Fourth Circuit has put it:

             The term “significant injury,” by its open-ended nature, cannot
      be defined with exactitude. W hether an injury is “significant,” thus,
      should not be determined by a precise standard meted out at the
      appellate level and mechanically applied by the district court. Rather,
      it should be determined by a very factually-specific inquiry which
      takes into account a multitude of factors, some articulable and some
      more intangible, that are observable in hearing the evidence
      presented on the injury. Because the district court hears this
      evidence, it is by far best-situated to assess these myriad factors and
      determine whether a “significant injury” has occurred. W e, as the
      court of appeals, are in a far less advantageous position to make this
      determination as w e have before us only the written record and this
      record is often inadequate in conveying many of these factors. As a
      result of our position, our ability to review the district court’s
      determination of whether a “significant injury” has occurred is quite
      limited and we will disturb it only when the record reveals that the
                                                                         (continued...)

                                              -9-
was simply “without factual support in the record,” M anning v. United States, 146

F.3d 808, 812 (10th Cir. 1998) (internal quotation marks omitted), and must be

reversed.

      Cases from other circuits reversing bodily injury enhancements confirm our

decision here. In Dodson, the Eighth Circuit reversed an enhancement imposed

by the district court upon consideration of a PSR statement that a choked police

officer sustained “minor injuries.” 109 F.3d at 488–89. The court reversed,

noting that the government did not call the officer “to testify regarding the nature

of his injuries or whether he had suffered any pain as a result,” and “the only

evidence, if it can be characterized as that, concerning the injuries . . . suffered

was the PSR’s description of the injuries.” Id. at 489. Such a minimal record, the

Eighth Circuit found, was insufficient to support an enhancement. Id. Similarly,

in United States v. Guerrero, the Fifth Circuit reversed an enhancement where the

PSR failed to describe the injuries sustained and no other evidence was presented

to the sentencing court. 169 F.3d at 947. And in United States v. Harris, the

Third Circuit reversed an enhancement where the victims had been sprayed with

mace but the record before the district court failed to reveal the character of




      3
       (...continued)
      district court clearly erred.

United States v. Lancaster, 6 F.3d 208, 210 (4th Cir. 1993); see also Perkins, 132
F.3d at 1326 (citing Lancaster’s conception of “significant injury”).

                                          -10-
medical attention given to the victims, the degree of pain experienced, or “the

character and duration of the symptoms experienced.” 44 F.3d at 1218.

      Having found no evidence that the injuries in this case were nontrivially

painful or lasting, we also find that the Guidelines example of an injury “for

which medical attention would ordinarily be sought,” U SSG § 1B1.1 cmt. n.1(B),

does not lend support to the district court’s finding in this case. The injured

officer sought treatment as a matter of standard jail practice rather than out of

concern over the severity of his injuries. Indeed, at oral argument, the

government conceded that it cannot rely on this portion of the Guidelines

definition to support the enhancement in this case.

      The government maintains that our decision in Brown requires a different

result. But in Brown the injuries w ere much more serious— bleeding, severe

headache, swelling, bruises, cuts, and lumps on the face— and the record before

the district court demonstrated that the injuries were both painful and lasting. See

United States v. Brown, 200 F.3d 700, 710 (10th Cir. 1999). And although Brown

noted that “[v]isible injuries such as bumps, bruises, and redness or swelling are

sufficient to constitute ‘bodily injury,’” id. at 709, this statement should not be

read as establishing per se categories of “bodily injury.” Rather, this statement

must be read in context: the immediately preceding sentence in Brown states that

to be significant an injury “cannot be wholly trivial and . . . must last for some

meaningful period.” Id. Redness can result from the most minor of injuries, and

                                         -11-
can go away quickly (for example, the redness that results from a pinch or a slap).

As discussed above, in all of the cases cited in the government’s brief, the record

before the district court demonstrated injuries that were more severe than those

here, painful and lasting, or of a type for which medical treatment would

ordinarily be sought.

      Our reversal of the sentence enhancement in this case should not be

construed as downplaying the serious nature of M r. M ejia-Canales’s offense. Jail

personnel operate in an environment fraught with danger and risk to their physical

well-being. An assault on an officer triggered by a prisoner’s disagreement with

the officer’s orders is an inexcusable act that Congress has appropriately

criminalized, and for which the punishment is substantial. W e hold only that the

evidence presented in this case was not sufficient to enhance the sentence based

on infliction of bodily injury.

III. C ON CLU SIO N

      Because the district court committed clear error in finding “bodily injury”

without sufficient evidence in the record, we REVERSE and REM AND for

resentencing consistent with this opinion.




                                        -12-
