     Case: 10-40642 Document: 00511449445 Page: 1 Date Filed: 04/18/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 18, 2011
                                     No. 10-40642
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

CARLOS MARTINEZ-ALVARADO,

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                 No. 2:09-CR-1037-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Carlos Martinez-Alvarado appeals the 27-month within-guidelines sen-
tence imposed following his jury conviction of assaulting, resisting, opposing, im-


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-40642 Document: 00511449445 Page: 2 Date Filed: 04/18/2011

                                  No. 10-40642

peding, intimidating, and interfering with a federal officer. He argues that the
district court abused its discretion in denying a reduction for acceptance of re-
sponsibility and that it erred in applying an enhancement under U.S.S.G.
§ 2A2.4(b)(2) based on a finding that the victim sustained bodily injury. He also
contends that the application of both U.S.S.G. § 2A2.4(b)(1) and § 2A2.4(b)(2)
constitutes impermissible double-counting because an offense that causes bodily
injury to the victim necessarily involves physical contact. He further asserts
that the court erred in applying an enhancement for obstruction of justice based
on a finding that he committed perjury.
      “While the district court’s findings under the sentencing guidelines are
generally reviewed for clear error, a determination whether a defendant is enti-
tled to an adjustment for acceptance of responsibility is reviewed with even
greater deference.” United States v. Buchanan, 485 F.3d 274, 287 (5th Cir.
2007). “We will affirm a sentencing court’s decision not to award a reduction”
pursuant to U.S.S.G. § 3E1.1 unless the decision is “without foundation.” United
States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (internal quotation
marks and citation omitted).
      The district court did not err in denying credit for acceptance of responsi-
bility. At trial, Martinez-Alvarez denied that he was assaulting Agent Rafael
Cortez or even resisting arrest. Martinez-Alvarez claimed he was acting in self-
defense and cast himself as the victim. Given the deference owed to findings on
acceptance of responsibility, he has not shown that the denial of the reduction
was without foundation. See Juarez-Duarte, 513 F.3d at 211.
      Section 2A2.4(b)(2) of the guidelines provides for a two-level increase
where an offense involves bodily injury to the victim. Bodily injury is defined by
reference to U.S.S.G. § 1B1.1 and is “any significant injury; e.g. an injury that
is painful or obvious, or is of a type for which medical attention ordinarily would
by sought.” § 2A2.4(b)(2), comment. (n.1), citing § 1B1.1, comment. (n.1(B)). The
district court’s interpretation and application of the guidelines are reviewed de

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                                   No. 10-40642

novo, its factual findings for clear error. Juarez Duarte, 513 F.3d at 208.
      The court viewed photographs showing Cortez’s swollen fingers. Cortez
testified that his injuries were painful and that he experienced discomfort. He
iced his knee for a few days, and the discomfort lasted for about two weeks; he
also had bruising on his arms. Thus, there was evidence that he suffered a pain-
ful or obvious injury, and the court did not clearly err in applying the enhance-
ment under § 2A2.4(b)(2).
      Martinez-Alvarez’s challenge to the application of § 2A2.4(b)(1) is reviewed
for plain error, because he failed to object on this basis in the district court. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). He
must therefore show a forfeited error that is clear or obvious, affects his substan-
tial rights, and “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (in-
ternal quotation marks and citation omitted).
      Double-counting is barred only where expressly prohibited by a specific
guideline. United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Section
2A2.4 does not expressly prohibit application of enhancements for both bodily
injury to the victim and because the offense involved physical contact, so there
was no error, plain or otherwise, in the application of § 2A2.4(b)(1). See id.
      The district court’s determination that a defendant obstructed justice is
reviewed for clear error. Juarez-Duarte, 513 F.3d at 208. Martinez-Alvarez de-
nied that he resisted arrest and testified that he acted only in self-defense.
Additionally, he testified in a manner to discredit Cortez’s testimony. Therefore,
the court found that his testimony was comprised of lies, was an attempt to dis-
credit the government’s witnesses, and was willful. The findings thus encom-
pass all the factual predicates for perjury. See United States v. Dunnigan, 507
U.S. 87, 94-95 (1993). The court did not clearly err in the application of this en-
hancement. See Juarez-Duarte, 513 F.3d at 208.
      Accordingly, the judgment is AFFIRMED.



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