                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4204



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


SAUL VILLELA-ALBERTO,

                Defendant - Appellant.



                             No. 07-4205



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


ENRIQUE CASTELLANO,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Big Stone Gap.  James P. Jones, Chief
District Judge. (2:06-cr-00001)


Submitted:   June 13, 2008                 Decided:   July 21, 2008


Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Donald M. Williams, Jr., WILLIAMS LAW OFFICE, PLC, Pennington Gap,
Virginia; Joseph W. Rasnic, Jonesville, Virginia, for Appellants.
John L. Brownlee, United States Attorney, Anthony P. Giorno,
Assistant United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                               -2-
PER CURIAM:

          Saul Villela-Alberto and Enrique Castellano, two Central

American inmates at the United States Penitentiary in Lee County,

Virginia, appeal their convictions and sentences following a jury

trial for assaulting another inmate resulting in serious bodily

injury to the victim, in violation of 18 U.S.C. § 113(a)(6) (2000).

Castellano also appeals his conviction and sentence for assaulting

another inmate with a dangerous weapon, namely, a shod foot, with

intent to do bodily harm and without just cause or excuse, in

violation of 18 U.S.C. § 113(a)(3) (2000)*.        We affirm.



                  (I) Sufficiency of the Evidence

          Villela-Alberto and Castellano argue that the evidence

presented at trial was insufficient to establish that the victim,

Alfredo Uribe, suffered a “serious bodily injury” within the

statutory definition referenced in § 113(b)(2).         They argue that a

registered    nurse’s   testimony    regarding    her     examination   and

assessment of Uribe’s injuries does not establish that Uribe

suffered extreme physical pain because she did not see Uribe for

any follow-up examinations or treatment after the day of the

assault and could not say whether Uribe actually received any

further treatment.



     *
      Villela-Alberto    was   found      not    guilty     of   violating
§ 113(a)(3).

                                    -3-
              When      a    defendant      challenges         the    sufficiency        of    the

evidence, we consider whether substantial evidence, viewed in the

light     most     favorable        to    the     Government,        supports      the   jury’s

verdict.         Burks v. United States, 437 U.S. 1, 17 (1978); United

States      v.     Stewart,         256    F.3d       231,     249     (4th     Cir.     2001).

“[S]ubstantial evidence is evidence that a reasonable finder of

fact      could    accept      as    adequate         and    sufficient       to    support     a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996).                                 We do

not    review     the       credibility      of      witnesses       and   assume    the      jury

resolved all contradictions in the testimony in favor of the

Government.         United States v. Sun, 278 F.3d 302, 313 (4th Cir.

2002).

              The term “serious bodily injury,” as used in § 113(a)(6),

“means bodily injury which involves: (A) a substantial risk of

death; (B) extreme physical pain; (C) protracted and obvious

disfigurement; or (D) protracted loss or impairment of the function

of    a   bodily     member,        organ,      or    mental     faculty.”          18   U.S.C.

§§ 113(b)(2), 1365(h)(3).

              Here, a registered nurse who examined Uribe after the

assault testified that Uribe suffered what she considered to be

severe facial trauma that would cause severe pain, and that a

doctor ordered follow-up treatment consisting of hourly icing of

Uribe’s wounds for three days, Tylenol, and two days of bed rest.


                                                -4-
The jury also viewed a video recording of the assault upon Uribe

that allowed the jury to observe the injuries Uribe sustained.

Although the Government did not present evidence of the follow-up

treatment or assessments Uribe actually received, when the evidence

is    viewed    in   the   light   most   favorable   to   the    Government,

substantial evidence supports the jury’s verdict.                A reasonable

finder of fact could have accepted the nurse’s testimony, in

conjunction with the video showing Uribe’s injuries, as adequate

and sufficient to support a conclusion that Uribe suffered extreme

physical pain.        There was no testimony that contradicted the

nurse’s assessment of Uribe’s injuries and no suggestion that her

testimony was not credible.



     (II) Denial of Request for Jury Instruction on Self-Defense

            Villela-Alberto and Castellano argue that the district

court abused its discretion in not instructing the jury as to self-

defense.       They contend that they were concerned for their safety

because Uribe is a member of the Latin Kings, a group that

previously carried out acts of violence against Central American

inmates such as themselves, and that Uribe became agitated and

threatened       Castellano   when   they    questioned    him    about   his

affiliation, causing them to reasonably act in self-defense under

the circumstances.




                                      -5-
             We review a district court’s decision not to give a jury

instruction for abuse of discretion. United States v. Seidman, 156

F.3d 542, 551 (4th Cir. 1998).                 A requested instruction as to a

defense should be given if it has an evidentiary foundation and

accurately states the applicable law.               United States v. Sloley, 19

F.3d 149, 153 (4th Cir. 1994).

             We    find   that   the     district      court   did   not    abuse   its

discretion        in   declining    to    give    the    requested      self-defense

instruction       because   it     did   not    have    an   adequate      evidentiary

foundation.        The jury heard testimony, which was corroborated by

videotape evidence, that Uribe was standing with his hands behind

his back and did not make any threatening movement towards Villela-

Alberto or Castellano before they assaulted him.                     The jury also

heard testimony by a legal instruments examiner who served as a

translator regarding Villela-Alberto’s statements to investigators

that Uribe cursed at him and threatened him before the assault

after Villela-Alberto and Castellano questioned Uribe about his

membership in the Latin Kings.             Although threatening words alone

are not sufficient evidence for a jury to conclude that a defendant

acted   in    self-defense       under     the    requested     instruction,        the

appellants argue that Uribe’s verbal threats were sufficient to

make them believe they were in danger due to the context of other

assaults by members of the Latin Kings upon other Central American

inmates.     We conclude, however, that because Uribe was alone and


                                          -6-
confronted by two inmates at the time of the assault, there was not

an adequate evidentiary foundation for a reasonable finder of fact

to believe that Villela-Alberto and Castellano believed they were

in    imminent   danger     of    serious   bodily      harm   from   Uribe,      even

considering the previous assaults.



             (III) Enhancement for Use of a Dangerous Weapon

             Villela-Alberto argues that the district court erred in

enhancing his advisory guidelines offense level by four levels

based upon use of a dangerous weapon, pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 2A2.2(b)(2) because the Government did

not provide any evidence that Villela-Alberto kicked Uribe and it

was    not     reasonably        foreseeable      for      Villela-Alberto        that

Castellano’s use of his prison-issued boots to kick Uribe would

constitute use of a dangerous weapon.

              Under   the   guidelines,       a   “dangerous    weapon”      is    “an

instrument capable of inflicting death or serious bodily injury.”

USSG   §   1B1.1,     comment.    (n.1(D)).        “[A]n    object    need   not    be

inherently dangerous to be a dangerous weapon.                 Rather, innocuous

objects or instruments may become capable of inflicting serious

injury when put to assaultive use.”               United States v. Sturgis, 48

F.3d 784, 787 (4th Cir. 1995).

             We hold that the district court did not err in finding

that a preponderance of the evidence showed that Villela-Alberto


                                        -7-
aided and abetted Castellano in his assault upon Uribe with a

dangerous weapon, and that Castellano’s conduct was reasonably

foreseeable to Villela-Alberto.               As described, the jury found,

based upon sufficient evidence presented at trial, that Villela-

Alberto and Castellano inflicted serious bodily injuries upon

Uribe, in large part through Castellano’s conduct of kicking Uribe

with his prison-issued hard-toed boots.                  The Government also

presented evidence that Villela-Alberto took part in all phases of

the assault upon Uribe, including during the time when Castellano

was kicking Uribe with his boots.               Furthermore, the Government

presented   testimony       regarding    Villela-Alberto’s        statements      to

investigators    about      their    assault    upon    Uribe,    including      his

statement    that    they    wanted     to    “make    him   bleed   a   little.”

Accordingly, the district court’s finding that Villela-Alberto

reasonably could have foreseen Castellano’s use of the boots as a

dangerous weapon against Uribe is not clearly erroneous.



             (IV) Enhancement for Obstruction of Justice

            Castellano      argues    that    the   district     court   erred    in

enhancing his advisory guidelines offense level for obstruction of

justice.    He denies writing the letter to Uribe that served as the

basis for the obstruction enhancement and contends that, in any

event, the letter only encouraged Uribe to testify, not to testify

untruthfully.       He seeks to bolster his argument that the letter


                                        -8-
could not have been intended to obstruct justice by noting that a

copy of the letter was mailed to his attorney.                       The letter reads,

in part:

      Honestly, the only way I can have a chance of beating
      this bullshit case is if you say to my lawyer that you
      had a feeling that something was gonna go down when I
      approached you and you was gonna make your move against
      me but I beat you to it. It is the only way because even
      though you didn’t have any fractures the D.A. is making
      it look like you went thru (sic) surgery or some shit.
      Plus they took a picture of you with blood all over your
      face and they are making shit look ugly.

             We hold that the district court did not err in finding

that Castellano authored the letter in an effort to improperly

direct Uribe to testify falsely as to the possible justification

for   the   attack.         The   letter    discusses          the   evidence   against

Castellano and encourages Uribe to testify that he threatened

Castellano and provoked the assault.                        Contrary to Castellano’s

argument, the letter requests that Uribe testify as to specific

facts, rather than generally requesting that he testify truthfully.

Although Uribe denied receiving any letters from Castellano and

generally refused to provide any testimony, the Government also

presented    a     letter   Uribe   wrote        to    Castellano      that   shows   his

awareness of Castellano’s request that Uribe help him through his

testimony.       Accordingly, the district court did not clearly err in

finding     that    a   preponderance       of        the   evidence    supported     the

enhancement for obstruction of justice.




                                           -9-
              For the reasons stated above, we affirm the appellants’

convictions and sentences.       We dispense with oral argument because

the   facts    and   legal   contentions are adequately presented in the

materials     before   the   court   and    argument   would   not   aid   the

decisional process.

                                                                     AFFIRMED




                                     -10-
