                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      April 13, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                  No. 06-7059
                                               (D.C. No. CR -05-00087-001-P)
    JA M ES ED WA R D MC IN TO SH,                      (E.D. Okla.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.




         James M cIntosh appeals his conviction and 65-month sentence for assault

resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6).

W e A FFIRM .




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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

      Defendant James M cIntosh lived with his daughter M isty M cIntosh and her

infant son Jared, at the home of his aunt, Amy Owings. Owings’ home was

located within Indian country as defined in 18 U.S.C. § 1151. The M cIntoshes

are enrolled in the Seminole Nation of Oklahoma, and are considered Indians for

purposes of the criminal code.

      On the day of the assault, James had been drinking whiskey with Veronica

Givens at her home. W hen Givens drove James back to Owings’ home, they

encountered M isty and Jared. They agreed to drive M isty to the store, where she

purchased a twelve-pack of beer, and the foursome continued on to Givens home.

Once there, they began to consume alcohol. By the time they finished drinking,

Givens estimated that James had consumed approximately two-thirds or

three-fourths of a bottle of whiskey.

      Eventually Givens’ son, Kevin Givens, drove James, M isty, and Jared back

to Owings’ residence. During the ride, James and M isty began arguing about

M isty’s care of Jared. James elbowed M isty in the face and threatened to report

her to the Department of Human Services.

      Upon arriving at Owings’ home, M isty, carrying Jared, immediately headed

for the entrance door. James followed, and knocked her and the baby down in the

front yard. M isty stood up, entered the house, and safely placed Jared down.

Again James followed, this time hitting his daughter and kicking her w ith his

                                        -2-
steel-toed boots in the back and the face. Although she attempted to defend

herself, M isty was intoxicated and fell over a piece of furniture. Eventually,

M isty grabbed a cell phone and crawled to the front door. 1 James continued

hitting and kicking M isty as she crawled. Kevin Givens attempted to get James’

attention to no avail. Kevin estimated that during this exchange James hit M isty

approximately twenty times. He testified that he had “never seen anything like it

before.”

      Once she exited the house, M isty was able to take hold of James’ foot and

twist it, throwing him off balance. During this pause in the assault, M isty called

911 and told the police that she was being beaten. The dispatcher asked for her

address, but unfortunately M isty did not know it. A t this point, M isty fell again.

Her long hair became twisted around James’ leg and boot, preventing her from

raising her head. James began choking her. It is unclear whether M isty dropped

the phone or whether James snatched it aw ay from her, but the call abruptly

ended. M isty somehow managed to escape James and tried to run away, but,

unfortunately, she once again tumbled to the ground. James resumed kicking and

punching her. He also threatened to kill her. M omentarily leaving her on the

ground, James entered the house and retrieved a hatchet. He returned to w here




1
 M isty testified that her recollection of this event is unclear, and that James may
have dragged her through the front door.

                                          -3-
M isty was lying, raised the hatchet above his head, and yelled: “I’m going to kill

you, bitch!”

       The altercation awoke Owings. She collected her car keys, retrieved Jared,

and proceeded to her car. W hen she started the vehicle, James turned towards the

sound. M isty used this distraction to flee. She entered the car, and Owings drove

off. After Owings dropped Jared off with his maternal grandparents, M isty was

taken to a hospital. During the ride, M isty could not see due to the swelling and

blood in her eyes and could barely hear due to the blood running into her ears.

W hen they arrived at the hospital, M isty described her pain to hospital personnel

as “ten” on a zero-to-ten scale. D ue to the nature of her injuries, M isty had to

undergo x-rays and a CA T scan, preventing hospital personnel from giving her

any pain medication because of the possible effects such medication would have

on the tests.

       M isty was then transferred by helicopter to the University of Oklahoma

M edical Center in Oklahoma City. Dr. Jeffrey Bender, who treated M isty at the

Center, testified that she had multiple fractures of her facial bones. Photographs

taken at the hospital and presented to the jury showed M isty with her eyes

sw ollen shut, her lips and face bloodied, and her face and body covered in

bruises. One bruise on her back appeared to bear the outline of a boot. M isty

was released later that day. She testified that the swelling subsided about a week

and a half later and that she was on pain medication for a month.

                                          -4-
      James w as arrested and charged with assault resulting in serious bodily

injury in violation of 18 U.S.C. § 1153. In February 2006, a jury trial was held.

M isty, her mother, and her brother all testified to prior incidents in which James

assaulted or attacked M isty. BIA Police Officer Randy W esley testified regarding

James’ confession to the crime. At the close of the government’s case, James

moved for a judgment of acquittal, which was denied. After presenting his case,

James again moved for a judgment of acquittal, and his motion was again denied.

The jury convicted James. However, the jury responded in the negative to the

following special interrogatory: “If you find the defendant guilty, you should

answer the following question: Do you unanimously find the government proved

beyond a reasonable doubt that the defendant brandished or threatened the victim

with a dangerous weapon (steel-toed boots and/or hatchet).”

      The presentence report calculated a base offense level of 14. A

four-level increase w as applied for use of a dangerous weapon under U.S.S.G.

§ 2A2.2(b)(2)(B) and a five-level increase was added because the crime resulted

in serious bodily injury under U.S.S.G. § 2A2.2(b)(3)(B), yielding a total

Guidelines offense level of 23. Based on James’ criminal history category of III,

the recommended Guidelines range was 57-71 months’ imprisonment. Defendant

filed objections to both of the offense level enhancements. The district court

rejected these challenges, and sentenced James to 65 months’ imprisonment.




                                         -5-
                                         II

                                         A

      James argues the district court improperly admitted evidence pursuant to

Federal Rule of Evidence 404(b) regarding his violent conduct toward M isty after

he consumed alcohol during the Summer of 2003. W e review the district court’s

evidentiary rulings for abuse of discretion. See United States v. M ares, 441 F.3d

1152, 1156 (10th Cir. 2006). “W e will not reverse a district court's ruling

[admitting such evidence] if it falls within the bounds of permissible choice in the

circumstances and is not arbitrary, capricious or whimsical.” Id. (quotations and

alterations omitted).

      Federal Rule of Evidence 404(b) provides:

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such
      as proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident . . . .

      In weighing the admissibility of evidence under Rule 404(b), we ask

whether: (1) the evidence is offered for a proper purpose; (2) it is relevant;

(3) the probative value of the evidence is substantially outweighed by its

prejudicial effect under Rule 403; and (4) a proper limiting instruction was given,

if requested by the defendant. See Huddleston v. United States, 485 U.S. 681,

691-92 (1988).




                                         -6-
      During defense counsel’s opening statement, counsel suggested that M isty

had a reputation for possessing knives and that Kevin Givens had been convicted

of a violent crime. Defense counsel also suggested that the defendant may not

have caused M isty’s injuries, or, alternatively, he may have been acting in

self-defense. In response, and over defendant’s objection, the government

introduced testimony from three witnesses – M isty, her mother, and her brother –

establishing that in the summer of 2003 James had assaulted M isty after

consuming alcohol. During that attack, he gave her a black eye, split her lip, and

choked her. Following each witness’ testimony, the district court issued a

limiting instruction, informing the jury that evidence of the prior incident could

be used only to establish James’ motive, knowledge, intent, common scheme, or

absence of mistake or accident. See Fed. R. Evid. 404(b).

      This evidence was both relevant and proper to show defendant’s intent and

lack of mistake or accident in assaulting M isty. James claims that the evidence

was unfairly prejudicial under Rule 403 because three witnesses testified

regarding the same incident, rendering the testimony cumulative. However,

multiple witnesses were presented in response to James’ claim that the w itnesses,

including M isty, were not credible. W e conclude that the district court’s decision

to admit testimony from three witnesses regarding the incident was not “arbitrary,

capricious or whimsical” or “outside the bounds of permissible choice.” See

M ares, 441 F.3d at 1156.

                                         -7-
                                           B

         James argues that the government failed to introduce sufficient evidence

that M isty suffered “serious bodily injury” as that term is used in 18 U.S.C.

§ 1153. “W e review the sufficiency of the evidence to support a jury’s verdict

de novo.” U nited States v. Lew is, 240 F.3d 866, 870 (10th Cir. 2001). This court

asks “whether taking the evidence – both direct and circumstantial, together w ith

the reasonable inferences to be drawn therefrom – in the light most favorable to

the government, a reasonable jury could find the defendant guilty beyond a

reasonable doubt.” U nited States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir.

1999).

         “[S]erious bodily injury” is defined in 18 U.S.C. § 1153 by reference to

18 U.S.C. § 1365. As the jury was instructed, “serious bodily injury” is a 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[.]”

§ 1365(h)(3). The government may satisfy its burden of proving serious bodily

injury by showing the presence of any one of these conditions. United States v.

Alexander, 447 F.3d 1290, 1299 (10th Cir. 2006).

         W hen read in the light most favorable to the government, the record

contains substantial evidence that supports the jury’s verdict. Although the

government did not introduce medical records detailing her hospital visits, both

                                          -8-
the nurse that originally attended to M isty and the doctor that saw her when she

was taken to the Oklahoma City hospital testified regarding her extensive injuries.

Several bones in her face were fractured, and her eyes were swollen shut. Bruises

covered many parts of her body. 2 For approximately a month after the assault

M isty required pain medication. This evidence was plainly sufficient to permit a

reasonable jury to find that M isty suffered serious bodily injury.

                                          III

         James raises a number of challenges to his sentence based on the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005). In evaluating

sentences under Booker, this court reviews legal questions de novo and factual

findings for clear error, “giving due deference to the district court’s application of

the guidelines to the facts.” U nited States v. Doe, 398 F.3d 1257, 1257 (10th Cir.

2005).

                                           A

         James contends that the district court improperly applied U.S.S.G.

§ 2A2.2(b)(2)(B) to enhance the base offense level by four-levels to account for

use of a dangerous w eapon, the steel-toed boots, given that the jury expressly

acquitted him of using a dangerous weapon. W e recognize that the jury



2
  Defendant claims that because M isty’s injuries did not require “stitches, staples
or sutures” she did not suffer serious bodily injury. W e reject this argument
outright. Only because of fortuity, even more serious injury did not follow the
repeated blows delivered by James.

                                          -9-
determined, by special interrogatory, that the government had not proved beyond

a reasonable doubt that James threatened M isty with a dangerous weapon, i.e.

steel-toed boots or a hatchet. However, James misunderstands the post-Booker

sentencing scheme.

      In Booker, the Court held that “the mandatory application of the

Guidelines violates the Sixth Amendment when judge-found facts, other than

those of prior convictions, are employed to enhance a sentence.” United States v.

Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc). W hen the judge

does not apply the Guidelines mandatorily, we stated:

      [W ]hen a district court makes a determination of sentencing facts by
      a preponderance test under the now-advisory Guidelines, it is not
      bound by jury determinations reached through application of the
      more onerous reasonable doubt standard. In this respect, the prior
      Guidelines scheme is unchanged by the seeming revolution of
      Booker.

United States v. M agallanez, 408 F.3d 672, 685 (10th Cir. 2005).

      Although James claims the district court mandatorily applied the

Guidelines, he does not offer any argument why we should consider the district

court’s imposition of his sentence a mandatory application of the Guidelines. 3

Thus, our inquiry is simply whether the district court’s factual finding that James



3
  To the extent James contends that the district court mandatorily applied the
Guidelines because he calculated a Guidelines range and imposed a Guidelines
sentence, he again misconceives the post-Booker sentencing jurisprudence.
Although district courts are not bound by the Guidelines, they are “still required
to [calculate] and consider Guideline ranges.” M agallanez, 408 F.3d at 685.

                                        -10-
threatened or brandished a dangerous weapon – steel-toed boots – was clear error.

Based on our review of the record, the district court’s finding that the defendant

was wearing steel-toed boots when he assaulted M isty is supported by a

preponderance of the evidence. Specifically, the defendant confessed to this fact,

and that confession was read before the jury. The jury’s answer to the special

interrogatory merely shows that it determined the government did not carry its

burden of proof regarding this issue. Therefore, the district court’s application of

U.S.S.G. § 2A2.2(b)(2)(B), finding that based on a preponderance of the evidence

James threatened or brandished a dangerous w eapon, did not violate James’ Sixth

Amendment rights.

                                          B

      James also argues that his sentence is procedurally unreasonable under

Booker because the district court improperly viewed his objection to the PSR’s

recommendation as a request for a downw ard departure under the G uidelines,

rather than a request for a variance under § 3553(a). “Post-Booker, we review

sentencing decisions for reasonableness, which has both procedural and

substantive components.” United States v. Atencio, ___F.3d___, No. 05-2279,

2007 W L 102977, at *6 (10th Cir. Jan. 17, 2007). A sentence is procedurally

unreasonable when the district court fails to properly calculate the advisory

Guidelines range or misapplies the factors set forth in § 3553(a). Id. Although

there has been some confusion in our precedent regarding what is properly

                                        -11-
considered a variance and what should be termed a departure, we recently

clarified the proper use of this terminology in Atencio:

      when a court reaches a sentence above or below the recommended
      Guidelines range through application of Chapters Four or Five of the
      Sentencing Guidelines, the resulting increase or decrease is referred
      to as a “departure.” W hen a court enhances or detracts from the
      recommended range through application of § 3553(a) factors,
      however, the increase or decrease is called a “variance.”

Id.

      Although it appears the district court did improperly characterize James’

objection to the PSR as a request for a departure rather than a variance, James did

not complain of this procedural confusion between a departure and a variance at

the time of his sentencing. Thus, we review only for plain error. United States v.

Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006), petition for cert. filed

(N o. 06-5217 July 7, 2006). “Plain error occurs w hen there is (1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. at 1222

(quotation omitted). Defendants carry “the [ ] burden to persuade the court that

the error ‘seriously affect[ed] the fairness, integrity[,] or public reputation of

judicial proceedings.’” U nited States v. Brow n, 316 F.3d 1151, 1161 (10th Cir.

2003) (citation omitted).




                                          -12-
         James attempts to persuade us that the district court would have imposed a

lower sentence had it analyzed his claim properly as a request for a variance

under the § 3553(a) factors. In support, he tells us that his stepfather is a blind

veteran whom he helped care for, and refers to a letter the jury sent to chambers

during deliberations requesting that James not be imprisoned. 4 Judge Payne

rejected the jury’s request, and considering the record, we entirely agree with




4
    This letter reads:

         Your Honor, we the [j]ury, totally understand that the dispensation of the
         punishment for this [i]ndictment does not fall within our jurisdiction.
                Sir, the collective H eart of this Jury cries out, even demands,
         that we speak.
                W e the Jury do not wish to send M r. M cIntosh to jail. W e feel
         that this would not serve justice in this case.
                W e believe that there is great love in M r. M cIntosh[’]s family.
         W e also believe that the family is fragmented but because of the love
         there is the possibility of hope.
                Our suggestions hinge on this hope.
                W e would suggest:
                1 – mandatory alcohol abuse [s]chool
                2 – mandatory anger management
                Your honor, we would also like to address M r. M cIntosh
         directly:
                M r. M cIntosh,
                You have a God given responsibility to lead your family.
                You can be a bad leader who leads by fear, hurt, pain &
         suffering which leads to hate & anger or you can be a good leader
         who leads in love with compassion, forgiveness and abundant grace.
                You have the power to lead either w ay. Sincerely the [j]ury




                                          -13-
his decision. W e can neither say that the district court committed plain error nor

that the defendant’s sentence was substantively unreasonable.

                                         IV

      AFFIRM ED.

                                                    Entered for the Court


                                                    Carlos F. Lucero
                                                    Circuit Judge




                                         -14-
