                      United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 01-2371
                                     ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of North Dakota.
Suna Felix Guy,                       *
                                      *
            Defendant-Appellant.      *
                                 ___________

                               Submitted: June 30, 2003
                                  Filed: August 22, 2003
                                   ___________

Before McMILLIAN, HEANEY, and MURPHY, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       This case is back after remand to the district court for additional findings on
a sentencing guideline issue involved in Suna Felix Guy’s appeal from his 125 month
sentence for aggravated sexual abuse. On his appeal Guy claims that the district court
erred by enhancing his sentence two levels for serious bodily injury to his victim. We
earlier concluded that the court had erred by basing the enhancement on a guideline
provision deeming serious bodily injury, but that the record was incomplete in respect
to the court’s reliance on the other definitions of serious bodily injury in the guideline
and remanded for further findings. See United States v. Guy, 282 F.3d 991, 996–97
(8th Cir. 2002) (Guy I). On remand the district court made additional findings and
again concluded that Guy’s victim had suffered serious bodily injury and resentenced
him to 125 months. Guy urges that the judgment be reversed and the case remanded
for resentencing without the enhancement. We affirm.

       The charges against Guy arose from his rape of L.W.E., a fourteen year old
babysitter, who became pregnant as a result. Guy pled guilty to knowingly engaging
in a sexual act with the victim, who fit the age requirements of the charge, in violation
of 18 U.S.C. §§ 2241(c) and 1153. At sentencing Guy’s base offense level was set
at 27 which was enhanced by four levels for the use of force, two levels for the age
of the victim, and two levels for serious bodily injury to the victim. See United States
Sentencing Commission, Guidelines Manual, § 2A3.1 (Nov. 2000) [USSG]. After
three levels were subtracted for acceptance of responsibility, his total offense level
was 32 which, combined with his criminal history category of I, resulted in a
sentencing range was 121–151 months. The district court sentenced Guy to 125
months. Guy appealed, claiming that the court erred by applying the two point
enhancement for serious bodily injury under § 2A3.1(b)(4)1 and as defined in § 1B1.1
of the guidelines.2


      1
        § 2A3.1(b)(4) states:
      (A) If the victim sustained permanent or life-threatening bodily injury,
      increase by 4 levels; (B) if the victim sustained serious bodily injury,
      increase by 2 levels; or (C) if the degree of injury is between that
      specified in subdivisions (A) and (B), increase by 3 levels.

See United States Sentencing Commission, Guidelines Manual, § 2A3.1, (Nov. 2000)
[USSG]
      2
        At the time of Guy’s sentencing, § 1B1.1 defined serious bodily injury as
follows:

      “Serious bodily injury” means 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,

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       The district court had relied on three parts of the definition for serious bodily
injury in Application Note 1(j) when it applied the two level enhancement. See Guy
I, 282 F.3d at 993. The court first relied on the deeming provision which the
Sentencing Commission had added to the definition of serious bodily injury. That
provision states that serious bodily injury “is deemed to have occurred if the offense
involved conduct constituting criminal sexual abuse ….” USSG § 1B1.1, comment.
(n.1(j)). We previously concluded that the deeming provision did not apply to Guy.
Commentary by the Sentencing Commission makes it clear that that provision may
not be used in sentencing a defendant for criminal sexual abuse if the same conduct
that would support the enhancement has already been taken into account in setting the
base offense level. Guy I, 282 F.3d at 995–96. Although the district court had also
relied on the definition provisions for protracted impairment of bodily or mental
function, it had not made sufficient findings about which functions had been impaired
or the duration of the impairment. The court’s reliance on “injury involving extreme
physical pain” also lacked specifics. Id. at 997. We therefore remanded for further
proceedings and findings. Id.

      Following further briefing and an evidentiary hearing, the district court
reimposed the sentence of 125 months after making specific findings basing the
enhancement for serious bodily injury on extreme physical pain, protracted
impairment, and the necessity for medical intervention. In its Additional Findings,
Conclusions of Law and Reimposition of Sentence, the court found that L.W.E. had
endured extreme physical pain during labor because her labor was extraordinarily
painful and was measured by her physician at the highest point on the pain scale. It


      hospitalization, or physical rehabilitation. In addition, “serious bodily
      injury” is deemed to have occurred if the offense involved conduct
      constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 or
      any similar offense under state law.

See USSG, § 1B1.1, comment. (n.1(j)).

                                          -3-
also found that she had suffered from a protracted mental impairment because of
depression and post traumatic stress disorder (PTSD) from late 1999 to at least March
of 2001. Additionally, the court concluded that L.W.E.’s pregnancy was “a life
altering physical impairment,” which she experienced for some nine months and
which caused nausea, back pain, and contractions among “other illnesses and
discomforts.” Finally the district court concluded that the serious bodily injury
enhancement was appropriate because L.W.E. required medical intervention and
hospitalization “for injuries she sustained as a result of child birth.”

       Guy appeals, arguing that the district court erred by applying the serious bodily
injury enhancement to the facts of his case. He requests that his sentence be vacated
and the matter remanded for resentencing without the two level enhancement, giving
him an offense level of 30 and a sentencing range of 97–121 months. Guy argues that
L.W.E. did not suffer serious injury at the time of the rape or long lasting trauma as
a result. He contends there is no indication in the record that she required any
immediate or future treatment for bodily injuries and that his base offense level
already accounted for the possibility of pregnancy since that is a risk of rape.
Additionally, he argues that the pain of childbirth is too attenuated from the crime to
use as a basis for the enhancement.

       The government responds that the district court did not err and that it
articulated specific factual findings to support the enhancement: that the victim
continues to suffer from PTSD as a result of the rape and pregnancy, that she was
under a doctor’s care during and after the pregnancy, and that she suffered an
abnormal birth which caused her to experience extreme physical pain. It contends
that all of its findings support the enhancement for both protracted impairment and
extreme physical pain. The sentence should therefore be affirmed.

     The interpretation of the scope of a sentencing guideline is a question of law
which is reviewed de novo, see U.S. v. Werlinger, 894 F.2d 1015, 1016 (8th Cir.

                                          -4-
1990), and the court’s factual findings underlying an enhancement are reviewable for
clear error. See U.S. v. Kills in Water, 293 F.3d 432, 435 (8th Cir. 2002).

       At the evidentiary hearing on remand, deposition testimony was presented from
Dr. Dorothy Dillard, the obstetrician who attended L.W.E.’s delivery, and Dr.
Stephanie LaRocque, a clinical psychologist who had treated L.W.E. after the rape
and after childbirth. Dr. Dillard testified that L.W.E. suffered extreme physical pain
during her labor, that on scale of one to ten an average labor is a six or seven, and that
L.W.E.’s labor measured ten on the pain scale. The district court found that ten
represented the most pain a human being could possibly endure and that L.W.E.
experienced this high level of pain because her young age and small body frame made
her physically unable to cope with the stress of childbirth. It also found that the pain
of labor was increased because L.W.E. suffered a complete tear of the wall between
the rectum and vagina, she suffered from facial petechia or broken blood vessels on
her face, and she suffered severe hemorrhaging from which she would have died
without medical intervention.

       Additionally, the court found that L.W.E. suffered protracted impairment of
both her bodily and mental functions. In respect to the protracted mental impairment,
Dr. LaRocque testified that L.W.E. suffered from depression and PTSD. She
described her symptoms as including insomnia, hyper vigilance, slow psychomotor
retardation, crying, dysphoric mood, and lack of verbal and physical communication.
The district court found that L.W.E. suffered from these symptoms from the time of
the rape in 1999 until at least March 2001, and possibly still suffers from them today.
As far as physical impairment, the district court determined that L.W.E. endured nine
months of pregnancy related illnesses and discomforts and required medical
intervention as a result of the injuries she sustained during labor. It also concluded
that pregnancy is not accounted for in the base offensive level for criminal sexual
abuse under § 2A3.1 because not every rape results in pregnancy.



                                           -5-
       We conclude that the extensive findings made by the district court on remand
are supported by the evidentiary record and are more than sufficient to justify
application of the serious bodily injury enhancement in § 2A3.1(b)(4)(B). The
evidence shows that L.W.E. suffered extreme physical pain during her labor and
delivery which was made difficult by her small frame and resulted in a complete tear
of the wall between the vagina and the rectum and severe hemorrhaging. Her
depression and PTSD were well documented and lasted from the time of the rape in
October 1999 until at least March 2001, constituting a protracted impairment of the
function of her mental faculty. Since this evidence and these findings are sufficient
to support the court’s ultimate finding, that as a direct result of Guy’s crime L.W.E.
suffered serious bodily injury within the meaning of § 1B1.1, we need not consider
the other grounds relied on by the district court. We conclude that the district court
did not err by applying the enhancement for serious bodily injury.

      Accordingly, the judgment of the district court is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -6-
