     Case: 16-30341   Document: 00513980968        Page: 1   Date Filed: 05/05/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fif h Circuit
                                    No. 16-30341                            FILED
                                                                         May 5, 2017

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
             Plaintiff - Appellee
v.

RAFAEL VELASCO,

             Defendant - Appellant




                Appeal from the United States District Court
                   for the Western District of Louisiana


Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
Judges.
CARL E. STEWART, Chief Judge:
      Following a guilty plea for misprision of a felony, the district court
applied a four-level sentencing enhancement for use of a dangerous weapon—
shoes in conjunction with the “solid prison floor”—to Defendant-Appellant
Rafael Velasco’s sentence. Velasco appeals the enhancement. Finding no
error, we AFFIRM.
                                         I.
      Velasco is an inmate at the Federal Correctional Complex in Oakdale,
Louisiana.   While there, he and Alonzo Deleon witnessed fellow inmate
Christian Sanchez attack Gonzalo Esquivel with a sharp-edged object, leaving
Esquivel with a severe cut along the side of his face and down his neck. Instead
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of reporting the incident, Velasco, Esquivel, and Deleon attacked Sanchez,
stomping, kicking, and beating him.          As a result of this attack, Sanchez
sustained serious injuries, including:
      comminuted and mildly displaced fractures, bilaterally, of the
      nasal bones; comminuted and non-displaced fractures, bilaterally,
      of the anterior aspect of the maxilla (upper jaw); comminuted
      mildly displaced fractures of the nasal septum; prominent facial
      soft tissue swelling; and multiple bruises, contusions, and
      lacerations to the face and head requiring sti[t]ches.
Thereafter, the men did not cooperate with investigators and provided little to
no information regarding the assault on either Esquivel or Sanchez.
      On May 13, 2015, Esquivel, Velasco, and Deleon were charged in a one-
count superseding indictment with assault resulting in serious bodily injury,
in violation of 18 U.S.C. §§ 2, 113(a)(6). Velasco ultimately pleaded guilty to a
bill of information for misprision of a felony in violation of 18 U.S.C. §§ 4,
113(a)(6). The presentence investigation report (“PSR”) set Velasco’s total
offense level at eight, with a criminal history category of V, which resulted in
a Guidelines range of fifteen to twenty-one months. The Government objected
to the PSR, arguing that the shoes Velasco used to “stomp” Sanchez’s head
against the “solid prison floor” were dangerous weapons, requiring a four-level
enhancement pursuant to U.S.S.G. § 2A2.2(b)(2)(B).
      The district court issued a memorandum ruling, granting the
Government the opportunity to introduce evidence of the assault on Sanchez.
At the subsequent hearing, the Government presented the testimony of
Jasmine Melbert, a corrections officer at the prison.          She described the
incident, explaining that Deleon, Velasco, and Esquivel took turns “stomping”
Sanchez’s head into the floor with “the bottom of their feet.” She gave them
“direct orders to stop,” which the men ignored. She went on to explain that
Sanchez was defenseless, as Deleon, Velasco, and Esquivel were holding his

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arms back “punching him in the facial area as he hit the floor and . . .
stomp[ing and] kick[ing] him.”
      The district court noted that under § 2A2.2(b)(2)(B), “[d]angerous
weapons can be almost anything depending on the manner in which they are
used.” Finding Melbert’s testimony “clear [and] unequivocal,” and accepting it
“as fact,” the district court concluded that the event involved the use of a
dangerous weapon and sustained the Government’s objection to the PSR.
Applying the four-level enhancement, Velasco’s revised Guidelines range was
twenty-seven to thirty-three months. The district court sentenced Velasco to
an above-Guidelines sentence of thirty-six months to “run consecutively to any
undischarged term of imprisonment” and to be followed by a one year term of
supervised release. Velasco timely appealed.
                                       II.
      When a defendant objects to the Guidelines calculation in the district
court, this court “review[s] the application of the Guidelines de novo and the
district court’s factual findings—along with the reasonable inferences drawn
from those facts—for clear error.” United States v. Alcantar, 733 F.3d 143, 146
(5th Cir. 2013) (citing United States v. Harris, 702 F.3d 226, 229 (5th Cir.
2012)). Whether an item is a dangerous weapon is a finding of fact. United
States v. Estrada-Fernandez, 150 F.3d 491, 497 (5th Cir. 1998) (per curiam)
(citing United States v. Schoenborn, 4 F.3d 1424, 1433 (7th Cir. 1993)
(“Whether or not an object constitutes a dangerous weapon . . . is a question of
fact and necessarily depends on the particular circumstances of each case.”)).
Therefore, we review this finding for clear error. See United States v. Ortegon,
No. 01-51202, 2002 WL 1860281, at *1 (5th Cir. June 17, 2002). Under the
clear error standard, a factual finding is clearly erroneous only where, in light
of the record, “the court is left with the definite and firm conviction that a


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mistake has been committed.” United States v. Malone, 828 F.3d 331, 337 (5th
Cir.) (quotation and citation omitted), cert. denied, 137 S. Ct. 526 (2016).
      Section 2A2.2(b)(2)(B) provides a four-level enhancement if a dangerous
weapon, including “any instrument that is not ordinarily used as a weapon,”
was used in more than just a threatening manner or simply brandished or
discharged. § 2A2.2(b)(2)(B) & cmt. n.1. Thus, whether an item is a dangerous
weapon turns on whether “such an instrument is involved in the offense with
the intent to commit bodily injury.” Id. The intent to do bodily harm is not
measured by the actor’s subjective motivation, but rather, it is measured
objectively, by what someone in the victim’s position might reasonably
conclude from the assailant’s conduct. United States v. Perez, 897 F.2d 751,
753 (5th Cir. 1990); compare United States v. Nunez-Granados, 546 F. App’x
483, 486–87 (5th Cir. 2013) (per curiam) (finding the enhancement did not
apply, because the defendant kicked the officer with the intent to escape, not
to cause the officer serious injury), with United States v. Serrata, 425 F.3d 886,
893–94, 909–10 (10th Cir. 2005) (holding that shoes are a dangerous weapon
when used to repeatedly stomp a victim’s head, thus revealing a clear intent to
do serious harm).
                                       III.
      On appeal, Velasco argues that the Government’s interpretation of §
2A2.2 is overly broad and would allow for a four-point enhancement on any
defendant that used any object in order to harm his or her victim, including
bare hands or feet. He further asserts that the Government’s witness, Melbert,
could not say with certainty what kind of shoes the inmates were wearing
during the altercation, noting that in Serrata, the case upon which the
Government relies, the assailants were likely wearing steel-toed boots. The
Government avers that, based on the Guidelines’ plain text, ordinary objects,


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even those that are not inherently dangerous, can be considered dangerous
weapons if used in a manner intended to inflict bodily injury.
      In this case, Velasco’s intent was clear. See United States v. Hatch, 490
F. App’x 136, 137, 139 (10th Cir. 2012) (affirming enhancement where the
defendant pulled a man out of his car and kicked at and “stomped on” his head
repeatedly, noting that under those facts, the defendant was “clearly using her
shoes with the intent to commit bodily injury”). After witnessing Sanchez and
Esquivel’s altercation, Velasco and the other men retaliated against Sanchez,
taking turns holding his arms back while the others stomped his head against
the hard prison floor. This retaliation resulted in Sanchez’s sustaining serious
bodily injury for which he was hospitalized. From Sanchez’s perspective, it is
reasonable to conclude that the assailants’ intent was to do him serious bodily
harm. See Perez, 897 F.2d at 753; Nunez-Granados, 546 F. App’x at 487. That
the shoes were not steel-toed is immaterial. See Serrata, 425 F.3d at 910 (“For
the district court to conclude the boots to be a dangerous weapon, it did not
have to find that the boots would somehow cause more serious injur[ies] than
any other type of normal footwear . . . .” (quotation omitted)). Accordingly, the
district court did not clearly err in applying the four-level enhancement. See
Alcantar, 733 F.3d at 146.
                                      IV.
      Because the district court did not clearly err under the facts of this case
in concluding that shoes in conjunction with the hard ground constitute a
dangerous weapon, we AFFIRM.




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