                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 19, 2015
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 14-2081
 JESUS MANUEL GALLEGOS,                        (D.C. No. 1:11-CR-02994-WJ-2)
                                                          (D. N.M.)
           Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, BALDOCK and BACHARACH, Circuit Judges.



      Defendant Jesus Manuel Gallegos pled guilty to one count of kidnapping

under 18 U.S.C. § 1201(a)(1) and was sentenced to 360 months’ imprisonment.

Gallegos now appeals his sentence, contending that the court incorrectly

interpreted what constitutes a “permanent bodily injury” for purposes of imposing

a sentencing enhancement. Having jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), we vacate Gallegos’s sentence and remand for a new

sentencing.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                        I

      On November 5, 2011, Jesus Manuel Gallegos and Brandon Jones

approached Javier Vasquez at random in front of Vasquez’s vehicle in a grocery

store parking lot in El Paso, Texas, and ordered Vasquez into the vehicle. Jones

and Gallegos got into the car, and Jones demanded that Vasquez give them his

Personal Identification Number (PIN) and direct them to a bank to make a

withdrawal from one of Vasquez’s bank accounts. Gallegos, who was sitting

behind Vasquez, grabbed Vasquez’s head from behind, pressed his thumb into

Vasquez’s left eye, and also demanded the PIN.

      Gallegos and Jones withdrew money from several of Vasquez’s bank

accounts and drove Vasquez through Las Cruces, New Mexico, and Albuquerque,

New Mexico as part of a purported trip to Colorado. Gallegos and Jones struck

Vasquez multiple times, threatened to kill or sexually assault Vasquez, and at one

point hog-tied Vasquez with duct tape. In the early morning hours of November

6, 2011, Jones pulled over to rest at a truck stop in New Mexico, where both he

and Gallegos fell asleep. Vasquez then escaped from the vehicle and called law

enforcement, who arrested Jones and Gallegos.

      Gallegos was indicted on one count of kidnapping under 18 U.S.C.

§ 1201(a)(1) and one count of aiding and abetting kidnapping under 18 U.S.C.

§ 2. Gallegos pled guilty to the kidnapping charge. The presentence report (PSR)

recommended a four-level sentencing enhancement based on Gallegos causing

                                        2
“permanent or life-threatening bodily injury” to Vasquez’s left eye. 1 The report

stated that Vasquez suffered blurred vision in his left eye immediately after the

abduction and that a later exam indicated that Vasquez’s left pupil would

permanently be more dilated than his right pupil, which can cause discomfort in

bright lights.

      Gallegos objected to that increase, arguing that Vasquez’s injury was not

substantial and therefore did not qualify for a permanent injury enhancement

under the Sentencing Guidelines. 2 The Government responded to Gallegos’s

objections to the PSR by arguing for a different bodily injury enhancement. The

Government argued that Vasquez’s injury was a “serious bodily injury” subject to

a two-level enhancement under U.S.S.G. § 2A4.1 because “[t]he impairment is

protracted and is expected to be permanent.” ROA, Supp. Vol. I at 62-63. The

Sentencing Guidelines define “permanent or life-threatening bodily injury” as

“injury involving a substantial risk of death; loss or substantial impairment of the

function of a bodily member, organ, or mental faculty that is likely to be

permanent; or an obvious disfigurement that is likely to be permanent.” U.S.S.G.

§ 1B1.1 cmt. 1(J). The Guidelines define “serious bodily injury” as “injury

      1
        The sentencing guideline for kidnapping offenses allows for a two-level
enhancement for “serious bodily injury,” a four-level enhancement for
“permanent or life-threatening injury,” and a three-level enhancement for an
injury that falls between the two categories. U.S.S.G. § 2A4.1.
      2
        Gallegos also argued below that the Government failed to prove that he
caused the injury, but he does not raise that argument on appeal.

                                         3
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, hospitalization, or physical rehabilitation.” U.S.S.G. § 1B1.1 cmt.

1(L). In an addendum to the PSR, the probation officer reiterated that Vasquez’s

pupil injury was permanent, that Vasquez continued to be treated for it, and that

“a 4 level increase is applicable.” ROA, Vol. III at *2.

      At sentencing, the Government called Dr. Robert Avery as an expert

witness to testify regarding Vasquez’s eye condition. Dr. Avery had examined

Vasquez in April 2013, approximately a year and a half after his abduction, and

determined that Vasquez’s “best-corrected visual acuity was 20/20 in both eyes,”

that “[h]is intra-ocular pressure, eye movements, and anatomic structures were all

normal,” but that his left pupil had “an inability . . . to constrict fully when

stimulated by bright lights.” ROA, Vol. II at 32. Dr. Avery concluded in his

written report that Vasquez’s pupil “impairment is protracted (having already

lasted over a year) and is expected to be permanent,” but that “[i]t should not

worsen” or lead to further deterioration and “is more an issue of discomfort in

certain settings.” Id. While examining Vasquez, Dr. Avery noted a difference of

0.4 millimeters between Vasquez’s normal right pupil and impaired left pupil

when exposed to bright lights.

      At the joint sentencing hearing of Jones and Gallegos, Dr. Avery testified

to essentially the same conclusions. He also stated that, although he had not

                                            4
examined Vasquez since 2013, he did not expect any further significant change in

Vasquez’s condition and repeatedly described the impairment as both “protracted”

and likely to be permanent. ROA, Supp. Vol. IV at 15, 17-19, 28-31, 36-37. Dr.

Avery described the problems that would likely result from Vasquez’s dilated left

pupil being exposed to bright light by stating, “it can interfere with your vision,

but the most—the most common thing is it’s uncomfortable.” 3 Id. at 13.

      During the sentencing hearing, Gallegos continued to object to the PSR

regarding Vasquez’s eye injury, stating that Vasquez’s injury should be “place[d]

. . . in the appropriate context” and that discomfort in bright lights was not a

significant impairment. Id. at 115. The court stated that Dr. Avery had

competently testified that the pupil condition “is likely to be some permanent

impairment.” Id. at 116-17. In the court’s sentencing of Jones, which it

explicitly incorporated by reference into its sentencing of Gallegos, id. at 116, the

court stated: “[W]hat [Dr. Avery] testified to is that the left pupil of the victim

was injured such that . . . in a time of bright light, the left pupil, it can cause

interference with vision. . . . [I]t was his medical opinion that the victim had

recovered as much as he would but was likely to have some permanent protracted

impairment of the left pupil.” Id. at 98. The court stated with regard to Gallegos:


      3
        Dr. Avery expanded on the vision point later, stating that there were no
problems with Vasquez’s corrected visual acuity, but that the ability for the pupil
to take in light may cause other issues with vision of which he could not be as
medically certain. ROA, Supp. Vol. IV at 24-28, 34-36.

                                            5
         [B]ased on the, you know, the guidelines, they are what they are, and
         definitions are very mechanical. But based on the testimony of—of Dr.
         [Avery], it meets the requirement, the injury meets—and that is the
         protracted impairment of the function of the pupil and Dr. [Avery’s]
         testimony that it’s not going to get any better than it is and that there is
         some impairment meets the requirement for permanent bodily injury as that
         term is defined by . . . Sentencing Guideline Section 2A4.1(b)(2)(A).

Id. at 117-18. The court then concluded that the four-level sentencing

enhancement was applicable and imposed a sentence of 360 months’

imprisonment.

                                           II

         On appeal, Gallegos only challenges the procedural reasonableness of his

sentence. “We review sentences for reasonableness under a deferential abuse of

discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.

2008) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). “A sentence is

procedurally unreasonable if the district court incorrectly calculates or fails to

calculate the Guidelines sentence, treats the Guidelines as mandatory, fails to

consider the § 3553(a) factors, relies on clearly erroneous facts, or inadequately

explains the sentence.” Id. “This court reviews the district court’s legal

conclusions under the Sentencing Guidelines de novo and its factual findings for

clear error, affording great deference to the district court’s application of the

Guidelines to the facts.” United States v. Eaton, 260 F.3d 1232, 1237 (10th Cir.

2001).




                                           6
      Gallegos contends that the district court committed legal error by

incorrectly applying the four-level sentencing enhancement 4 for “permanent or

life-threatening bodily injury.” Aplt. Br. at 11. “When adjusting a defendant’s

base offense level under the Guidelines, a district court ‘must make a finding that

the requirements for the adjustment have been satisfied.’” United States v.

Montoan-Herrera, 351 F.3d 462, 466 (10th Cir. 2003) (citing United States v.

Underwood, 938 F.2d 1086, 1091 (10th Cir.1991)). “[A]lthough the finding for

an adjustment need not be particularized, a finding is necessary because without it

we are left to speculate as to whether the district court applied the correct legal

standard.” 5 Id. “However, when it is apparent from the court’s optional

      4
         The Guidelines and caselaw largely refer to offense-level sentence
enhancements under Chapter 2 as “enhancements” and “adjustments”
interchangeably. We see no reason to review sentence adjustments under Chapter
2 and Chapter 3 differently because both chapters relate to calculating the
Guidelines sentencing range, in contrast to variances and departures, which
deviate from the recommended Guidelines range. See United States v. Beaulieu,
900 F.2d 1531, 1535 (10th Cir. 1990) (“We have held, in cases of departures, that
the trial court must specify its reasons for departure from the Guidelines and we
must vacate the sentence if the trial court fails to do so. . . . In the case before us,
however, we do not have a departure from the Guidelines, but instead an upward
adjustment to a point still within the Guidelines.”); see also U.S.S.G. § 1B1.1
cmt. 4(A)-(B) (referring to Chapter 2 modifications as “adjustments”); U.S.S.G.
§ 1A1.4(b) (discussing the Guidelines’ view of departures as compared to
enhancements and adjustments).
      5
        In other cases, we have required particularized findings, but Underwood
indicates that the baseline is “a finding that the requirements for the adjustment
have been satisfied.” United States v. Underwood, 938 F.2d 1086, 1091 (10th
Cir. 1991). But see United States v. Tissnolthtos, 115 F.3d 759, 761-62 (10th Cir.
1997) (requiring more particularized findings than a victim being “elderly” to
                                                                        (continued...)

                                           7
discussion that its factual finding may be based upon an incorrect legal standard,

we must remand for reconsideration in light of the correct legal standard.” United

States v. Maldonado-Campos, 920 F.2d 714, 717-18 (10th Cir. 1990) (internal

citations omitted).

      Under the Sentencing Guidelines, the definition of “permanent or life-

threatening bodily injury” is: “[1] injury involving a substantial risk of death; [2]

loss or substantial impairment of the function of a bodily member, organ, or

mental faculty that is likely to be permanent; or [3] an obvious disfigurement that

is likely to be permanent.” U.S.S.G. § 1B1.1 cmt. 1(J) (numerals added). The

second prong of that definition is at issue in this case; at no point in the

proceedings was Vasquez’s pupil dysfunction discussed as life-threatening or

disfiguring. Gallegos argues that the district court did not properly apply the

definition of “permanent or life-threatening bodily injury” when imposing the

four-level enhancement because it interchangeably used the terms

“protracted”—which comes from the Sentencing Guideline definition of “serious

bodily injury”—and “permanent” to describe Vasquez’s impairment. U.S.S.G.

§ 1B1.1 cmt. 1(J), 1(L).



      5
        (...continued)
support a vulnerable victim adjustment); United States v. Wacker, 72 F.3d 1453,
1476 (10th Cir. 1995) (“Before imposing an enhancement based on a defendant’s
role in the offense, the sentencing court must make specific factual findings as to
that role.”).

                                           8
       We agree that it is unclear from the district court’s discussion whether it

applied the correct definition of permanent bodily injury. The district court stated

at various points in the hearing that the injury was (1) “a pupillary protracted

impairment of the function”; (2) “some permanent protracted impairment of the

left pupil”; (3) “this protracted impairment function [sic] to the left pupil”; (4)

“some permanent impairment”; and (5) “the protracted impairment of the function

of the pupil.” ROA, Supp. Vol. IV at 98-99, 116-17. This discussion blurred the

lines between the definitions of “permanent or life-threatening bodily injury” and

“serious bodily injury.” The terms “permanent” and “protracted” are not

interchangeable, and the longevity of an impairment is one crucial distinction

between a serious bodily injury enhancement and a permanent bodily injury

enhancement.

       Another distinction between the two levels of enhancement is the severity

of the impairment; a permanent bodily injury enhancement requires that the

impairment at issue be “substantial,” while the serious bodily injury enhancement

has no severity requirement. U.S.S.G. § 1B1.1 cmt. 1(J), 1(L). In this case, the

district court engaged in a relatively extensive discussion of the medical evidence

presented, but made virtually no reference to the substantiality of Vasquez’s

impairment. The court remarked on the strong qualifications of the Government’s

witness and stated “what [Dr. Avery] testified to is that the left pupil of the victim

was injured such that . . . in a time of bright light, the left pupil, it can cause

                                            9
interference with vision.” ROA, Supp. Vol. IV at 98. The court then noted that

Dr. Avery testified that there was “some permanent protracted impairment,” and

concluded that a four-level enhancement for permanent bodily injury was

applicable. Id. at 98, 117. At best, the court made a finding of “some”

impairment, but it did not clearly state whether that impairment was

“substantial.” 6 Although we do not agree with Gallegos that the court was

required to make a particularized finding that Vasquez’s impairment was

substantial, the district court’s lack of discussion on this matter adds to this

court’s significant doubts about whether the district court applied the correct

definition of “permanent or life-threatening injury.” 7

      6
        Gallegos notes that the Government at one point sought a two-level
“serious bodily injury” enhancement and that the prosecutors and Probation
Office were at odds in the enhancement they sought. This fact provides context
for some of the confusing aspects of the sentencing hearing. For one, it explains
in large part why Dr. Avery, who the district court rightfully noted was a highly
qualified medical expert, repeatedly labeled the injury as “protracted” and did not
discuss the severity of the injury in detail. The frequent use of “protracted” in
Dr. Avery’s testimony also likely explains why the district court introduced that
term into its own discussion of the enhancement.
      7
         The Government attempts to skirt the issue of substantiality by contending
that Vasquez’s pupil injury can properly be understood as the “loss” of his pupil’s
ability to admit light properly and that no finding of substantiality is required if
the injury can be categorized as a “loss.” Aplee. Br. at 10. However, as Gallegos
notes, such a definition of “loss” would completely negate the inclusion of
“substantial impairment” in the definition of permanent bodily injury. There was
no contention in this case that Vasquez’s pupil does not dilate and contract at all
or that his pupil is entirely missing, indicating a complete “loss” of that bodily
function. If every impairment of a bodily function could be recharacterized as a
“loss” of the full range of functioning, there would be no need for the “substantial
                                                                         (continued...)

                                          10
      Thus, we conclude that “appellate review of the propriety of applying this

serious enhancement is hindered by the absence of a clear picture of the reasoning

employed by the sentencing court.” United States v. Torres, 53 F.3d 1129, 1143

(10th Cir. 1995). Although we give no opinion on the merits of which

enhancement is most appropriate in this case, the district court’s failure to

distinguish between the requirements for a two-level sentencing enhancement and

a four-level sentencing enhancement constitutes a procedural error. This error is

not harmless because Gallegos was given a sentence at the bottom of the

recommended range. See United States v. Begay, 470 F.3d 964, 976 (10th Cir.

2006), rev’d and remanded on other grounds, 553 U.S. 137 (2008). Therefore, we

must remand this case for resentencing.




      7
        (...continued)
impairment” language in the definition. We will not read such superfluity into
the Guidelines. See In re Dawes, 652 F.3d 1236, 1242 (10th Cir. 2011) (noting
that “one of the most basic interpretive canons” of statutory construction is that a
“statute should be construed so that effect is given to all its provisions, so that no
part will be inoperative or superfluous, void or insignificant”). Moreover, the
district court did not rely on the “loss” language. Instead, it repeatedly discussed
the “impairment” of Vasquez’s pupil. ROA, Supp. Vol. IV at 98, 116-17. We
thus reject the Government’s argument that Vasquez’s pupil dysfunction
constitutes the “loss . . . of the function of a bodily member, organ, or mental
faculty that is likely to be permanent” under the definition of “permanent or life-
threatening bodily injury.” U.S.S.G. § 1B1.1 cmt. 1(J).

                                          11
                                      III

      For the reasons set forth above, we VACATE Gallegos’s sentence and

REMAND to the district court for a new sentencing in accordance with this order.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Chief Judge




                                       12
