                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS           June 4, 2007
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                             No. 05-30607


UNITED STATES OF AMERICA

            Plaintiff - Appellee

v.


PERRY J LISTER; MARK BARNES; ROBERT E HILL; BORIS G BYNUM; KALUB
DOYLE, JR

            Defendants - Appellants

                          --------------------
             Appeals from the United States District Court
     for the Western District of Louisiana, Lake Charles Division
                        USDC No. 2:04-CR-20127-2
                          --------------------

Before KING, DEMOSS and OWEN, Circuit Judges.

PER CURIAM:*

       Following a bench trial, the district court convicted

defendants-appellants Mark Barnes, Perry J. Lister, Kalub Doyle

Jr., Boris Bynum, and Robert E. Hill on one count of aiding and

abetting each other in the commission of an assault with a

dangerous weapon in violation of 18 U.S.C. §§ 2 and 113(a)(3).

On appeal, Barnes, Lister, Bynum, and Hill challenge their

convictions based on sufficiency of the evidence.    Lister also

challenges his sentence and argues that the district court erred

by denying him the opportunity to allocute.    Doyle challenges his


       *
        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that this opinion should not be published and is not precedent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.
                           No. 05-30607
                                -2-

sentence as well, arguing that the district court erroneously

applied a bodily injury enhancement.    For the reasons that

follow, we AFFIRM each conviction and the sentences imposed on

Barnes, Bynum, Hill and Doyle, VACATE Lister’s sentence, and

REMAND for resentencing as to Lister.

               I. FACTUAL AND PROCEDURAL BACKGROUND

     In December 2003, the five defendants-appellants, Mark

Barnes, Perry J. Lister, Kalub Doyle, Jr., Boris Bynum, and

Robert E. Hill (collectively the “defendants”), and the victim,

Treacy Robbins, were all incarcerated in a federal correctional

facility in Oakdale, Louisiana.   At the time of the assault at

issue in this appeal, Robbins and Lister shared a cell.

     On the evening of December 14, 2003, an altercation occurred

in Robbins and Lister’s cell.   Several inmates gathered to watch

the incident, including Lewis Bussie and Kevin Henderson, who

later became government witnesses.   Robbins testified that he was

assaulted by the five defendants and that although Lister and

Barnes initiated the attack, the other three joined in, kicking

and hitting him all over his body.   Robbins also testified that

Barnes and Hill swung at him with combination locks attached to

belts, hitting him with these contraptions on both the body and

head.   Bussie’s testimony corroborated this account.   At one

point Robbins crawled under the bed to protect himself.

Henderson testified that in an attempt to draw Robbins out from

under the bed, Doyle grabbed Robbins and brandished a knife.

Henderson described the knife as having a black or brown handle

and a white shoe string attached.    The altercation lasted between
                            No. 05-30607
                                 -3-

two to four minutes and ended when an observer, possibly

Henderson, yelled, “Police coming.”    Then all five defendants,

including Lister, left the cell.

     Robbins testified that although he did not lose

consciousness, the assault left him dizzy, bruised, scratched,

and bleeding from his nose and mouth.      Robbins cleaned himself up

after the assault but refrained from immediately reporting the

assault because he wanted to seek revenge on his attackers the

next day.   Robbins reported for work at his prison job the

morning after the attack, but because his dizziness persisted, he

sought medical assistance at the prison infirmary shortly

thereafter.    The treating physician’s assistant noted that

Robbins’s body had numerous scratches, bruises, lumps, and bumps,

but no broken bones or stab wounds.    Robbins also complained of

ankle pain, ear pain, and fluid in his ear.     Once Robbins sought

medical assistance, the assault was reported to the prison

authorities.

     The defendants were moved to a special housing unit after

the attack was reported.   When packing Doyle’s property for the

move to that unit, a correctional officer uncovered two nine-inch

homemade knives in Doyle’s mattress.

     Following a bench trial, the district court convicted the

defendants of one count of aiding and abetting each other in the

commission of an assault with a dangerous weapon in violation of

18 U.S.C. §§ 2 and 113(a)(3).

     A pre-sentence investigation report (“PSR”) was issued for

each co-defendant, based on the November 1, 2004 version of the
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                                 -4-

United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”).

Because only Doyle challenges the sentencing calculation in the

PSR on appeal, we include the details as to his PSR only.     The

PSR calculated Doyle’s base offense level at 24, which included a

three-level enhancement pursuant to U.S.S.G. § 2A2.2(b)(3)(A)

because Robbins sustained bodily injury as a result of the

beating.   The PSR also calculated Doyle’s criminal history

category as VI.    Doyle’s advisory guideline range, as calculated

by the PSR, was thus 100-125 months.   Doyle made several

objections to the PSR, only one of which is at issue on

appeal—that the three-level enhancement provided in § 2A2.2(b)(3)

for bodily injury was not applicable because Robbins did not

sustain a significant injury during the assault.

     On June 2, 2005, the district court sentenced Lister to

eighty months’ imprisonment to be followed by three years’

supervised release.   Barnes was sentenced to 110 months’

imprisonment and three years’ supervised release.    Bynum was

sentenced to forty-six months’ imprisonment to be followed by

three years’ supervised release.   Hill was sentenced to forty-

eight months’ imprisonment to be followed by three years’

supervised release.   On July 12, 2005, Doyle was sentenced to 100

months’ imprisonment and three years’ supervised release.     All

sentences were to be served consecutive to any undischarged term

of imprisonment.   The defendants now appeal.

                   II. SUFFICIENCY OF THE EVIDENCE

     Barnes, Lister, Bynum, and Hill argue that the district

court erred in denying their motions for a judgment of acquittal
                          No. 05-30607
                               -5-

because there was insufficient evidence from which a rational

fact finder could have found them guilty beyond a reasonable

doubt of assaulting Robbins with dangerous weapons.    We review a

challenge to the sufficiency of the evidence after a bench trial

“in the light most favorable to the government and defer to all

reasonable inferences drawn by the trial court.”     United States

v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995).   Evidence is

sufficient to sustain a conviction if “substantial evidence

supports the finding of guilty.”   Id.   In other words, we affirm

the conviction if “the evidence is sufficient to justify the

trial judge, as trier of the facts, in concluding beyond a

reasonable doubt that the defendant was guilty.”     Id.   The

district court as fact finder makes all credibility

determinations and resolves conflicting testimony.     United States

v. Jennings, 726 F.2d 189, 190 (5th Cir. 1984).

     To convict a defendant of a violation of 18 U.S.C.

§ 113(a)(3), the government must establish that the defendant

(1) committed an assault against the victim, (2) with a dangerous

weapon, (3) with the intent to do bodily harm.    18 U.S.C.

§ 113(a)(3); see also United States v. Estrada-Fernandez, 150

F.3d 491, 494 (5th Cir. 1998).   To prove that a defendant aided

and abetted a criminal venture in violation of 18 U.S.C. § 2, the

government must show that the defendant: “(1) associated with the

criminal enterprise; (2) participated in the venture; [and]

(3) sought by his action to make the venture succeed.”         United

States v. Tenorio, 360 F.3d 491, 495 (5th Cir. 2004).      A

defendant has associated with the criminal enterprise once he has
                            No. 05-30607
                                 -6-

“‘shared in the criminal intent of the principal.’”     United

States v. Sorrells, 145 F.3d 744, 753 (5th Cir. 1998) (quoting

United States v. Salazar, 66 F.3d 723, 729 (5th Cir. 1995)).       A

defendant has participated when he “‘engaged in some affirmative

conduct designed to aid the venture.   Although relevant, mere

presence and association are insufficient to sustain a conviction

of aiding and abetting.’”    Id.

     The defendants’1 arguments mostly revolve around

inconsistencies in testimony among the numerous witnesses and the

witnesses’ alleged credibility problems.    They insist that

because the eyewitnesses had criminal records, were Robbins’s

friends, and had inconsistencies in their testimony, a rational

fact finder could not have found the defendants guilty beyond a

reasonable doubt.    Despite the inconsistencies in the evidence

noted by the defendants, three witnesses (Robbins, Bussie, and

Henderson) identified the defendants as having participated in

the assault in one way or another.   The trial judge, as the

arbiter of credibility, did not err by crediting these witnesses’

testimony and finding that the defendants participated in the

assault.

     Because § 113 does not define what constitutes an “assault,”

we use the common-law definitions of both criminal and tortious

assault when interpreting the statute.     Estrada-Fernandez, 150

F.3d at 494 n.1;    see also United States v. Guilbert, 692 F.2d


     1
        We recognize that Doyle does not contest the sufficiency
of the evidence, but for the sake of convenience, we refer to
Lister, Bynum, Hill, and Barnes as the defendants in this
section.
                           No. 05-30607
                                -7-

1340, 1343 (11th Cir. 1982).   Accordingly, to establish that a

defendant committed “assault,” the government must show that

(1) the defendant attempted to commit a battery on the victim, or

(2) the defendant put the victim in reasonable apprehension of

immediate bodily harm.   Guilbert, 692 F.2d at 1343.   Based on the

testimony of Robbins, Bussie, and Henderson, the trial judge

could have rationally concluded that each of the defendants

committed an assault in any or all of the following ways: (1) by

attempting a battery on Robbins, (2) by completing a battery on

Robbins, or (3) by placing Robbins in reasonable apprehension of

immediate bodily harm.

     The second element of proof required is that the assault be

committed with a dangerous weapon.   § 113(a)(3).   “The

determination whether an object constitutes a ‘dangerous weapon’

turns not on the object’s latent capability alone, but also on

the manner in which the object was used.”   Guilbert, 692 F.2d at

1343; see also United States v. Gholston, 932 F.2d 904, 904 (11th

Cir. 1991).   Trial testimony indicated that Barnes and Hill had

weapons fashioned with locks and belts and that Doyle drew a

knife.   Prison authorities discovered two homemade knives hidden

in Doyle’s mattress.   These knives matched Henderson’s detailed

description of the knife he saw used in the attack.    An

investigative agent at the Oakdale facility testified that

combination locks were common in the prison and could easily be

obtained.   This is sufficient evidence from which the trial judge

could have concluded beyond a reasonable doubt that a weapon was

used in the assault and that the objects were used in a dangerous
                            No. 05-30607
                                 -8-

manner.   Although Lister and Bynum argue that the evidence was

not sufficient as to them because there was no evidence that they

personally used any weapons against Robbins, it is not necessary

for Lister and Bynum to have personally used weapons to find them

guilty of aiding and abetting.    See United States v. Vasquez, 953

F.2d 176, 183 (5th Cir. 1992) (recognizing that a defendant need

not commit all elements of the substantive underlying offense as

long as he aided and abetted each element).     The government only

needed to show, which it did, that they deliberately associated

with the criminal venture, participated in it, and sought by

their actions to make it succeed.    See United States v. Freeman,

434 F.3d 369, 377 (5th Cir. 2005).

     The third element required for conviction is that the

assault be committed with the intent to do bodily harm.    Intent

may be “judged objectively from the visible conduct of the actor

and what one in the position of the victim might reasonably

conclude.”    Shaffer v. United States, 308 F.2d 654, 655 (5th Cir.

1962).    From several witnesses’ accounts of the defendants’

conduct during the assault, a rational fact finder could have

concluded that the defendants intended to do Robbins bodily harm.

     The district court did not err in denying the defendants’

motion for judgment of acquittal.    The evidence is sufficient to

support their convictions under § 113(a)(3).

                       III. RULE 32 VIOLATION

     Lister argues that the district court violated Federal Rule

of Criminal Procedure 32 by denying him an opportunity to

allocute before his sentence was pronounced and that he is
                             No. 05-30607
                                  -9-

entitled to a remand for resentencing.      Because Lister did not

object to the district court’s failure to allow full allocution

at his sentencing hearing, we review his claim for plain error

only.   United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004)

(en banc).   Under the plain error standard of review, we ask

whether the district court committed an “error that is ‘plain’

and that ‘affect[ed] substantial rights.’” United States v.

Olano, 507 U.S. 725, 732 (1993).    To show that an error affected

his substantial rights, a defendant must establish that the error

was prejudicial, i.e., that it “affected the outcome of the

district court proceedings.”    Id. at 734.    Once those criteria

are met, we, in our discretion, may correct the forfeited error

if it “‘seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’”       Reyna, 358 F.3d at 350

(quoting Olano, 507 U.S. at 732).    We must “conduct a thorough

review of the record to determine if we should exercise our

discretion to correct the error.”     Id. at 353.

     The right of allocution requires that the district court

“address the defendant personally in order to permit the

defendant to speak or present any information to mitigate the

sentence.”   FED. R. CRIM. P. 32(i)(4)(A)(ii).    The government

concedes that the district court plainly erred and admits that

prejudice is presumed because the district court sentenced Lister

in the middle, rather than the bottom, of the appropriate

advisory guidelines range.     See Reyna, 358 F.3d at 353 (holding

that prejudice will be presumed from the denial of an opportunity

to allocute when the defendant is not sentenced at the bottom of
                                  No. 05-30607
                                      -10-

the applicable guidelines range).

       Ordinarily we remand a case for resentencing when the

opportunity to allocute has been denied and prejudice results,

but we have declined to create a blanket rule to that effect.2

Id. at 352-53.      “In a limited class of cases, a review of the

record may reveal, despite the presence of disputed sentencing

issues, that the violation of a defendant’s right to allocution

does not violate the last [prong of plain error review]”, that

is, that the error does not “seriously affect[] the fairness,

integrity or public reputation of judicial proceedings.”               Id. at

352.       The government contends that the instant case falls within

that limited class.

       In United States v. Reyna, we declined to exercise our

discretion to correct the district court’s plain error in failing

to give the defendant an opportunity to allocute, relying heavily

on the facts of that particular case.            Id. at 353.   Reyna

involved the defendant’s third appearance before the same

district judge, his second for violations of his supervised

release.       Id. at 352.    At the sentencing hearing for the first

violation of his release, the judge clearly warned the defendant

of the consequences for any subsequent violation of his

supervised release.          Id. at 353.   The record indicated that the

defendant understood what would happen to him should he again

violate his supervised release, and the district court clearly

       2
        The right to allocution “is not a fundamental defect that
inherently results in a complete miscarriage of justice nor an
omission inconsistent with the rudimentary demands of fair
procedure.” United States v. Reyna, 358 F.3d 344, 349 (5th Cir.
2004).
                           No. 05-30607
                               -11-

gave the defendant an opportunity to allocute at both his

original sentencing and also when he was resentenced following

his first violation of supervised release.     Id.   When the

defendant again violated the terms of supervised release, the

district court sentenced him exactly as it warned him it would.

Id.   Based on those facts, we held that the error, though

prejudicial, did not seriously affect the fairness, integrity, or

public reputation of judicial proceedings.     Id.   The instant case

is distinguishable from Reyna, however.     Unlike the situation in

Reyna, this was Lister’s original sentencing, and Lister did not

have previous opportunities to allocute.

      In United States v. Magwood, we declined to extend our

discretion to correct similar error because on appeal the

defendant did not specifically state what he would have allocuted

to had he been given the opportunity.     445 F.3d 826, 830 (5th

Cir. 2006).   But in this case, Lister identifies in his brief

what he would have included in an allocution statement.

      Accordingly, we hold that this case does not fall within

that limited class of cases in which the “fairness, integrity or

public reputation of judicial proceedings” has not been seriously

affected.   We vacate Lister’s sentence and remand for

resentencing.

                    IV. SENTENCING ENHANCEMENT

      Doyle’s sole argument on appeal is that the district court

improperly enhanced his sentence pursuant to U.S.S.G.

§ 2A2.2(b)(3)(A) based on its finding that Robbins sustained

“bodily injury” as a result of the assault.     We review the
                             No. 05-30607
                                 -12-

district court’s interpretation and application of the Guidelines

de novo.   United States v. Medina-Anicacio, 325 F.3d 638, 643

(5th Cir. 2003).   The court’s factual findings with respect to

sentencing are reviewed for clear error.        United States v.

Rodriguez-Mesa, 443 F.3d 397, 401 (5th Cir. 2006).             Clear error

does not exist “if the district court’s finding is plausible in

light of the record as a whole.”      United States v. Edwards, 303

F.3d 606, 645 (5th Cir. 2002) (quoting United States v. Humphrey,

104 F.3d 65, 71 (5th Cir. 1997)).

      Section 2A2.2(b)(3)(A) provides for a three-level increase

in the offense level if the victim sustained “bodily injury” as a

result of the assault.     U.S. SENTENCING GUIDELINES MANUAL

§ 2A2.2(b)(3)(A) (2004).     The injury sustained, not the actions

of the defendant, should be the focus of the inquiry.             United

States v. Guerrero, 169 F.3d 933, 946 (5th Cir. 1999).             “Bodily

injury” includes “any significant injury, e.g., an injury that is

painful and obvious, or is of a type for which medical attention

ordinarily would be sought.”      U.S. SENTENCING GUIDELINES MANUAL

§ 1B1.1 cmt. n.1(B) (2004).     The term “significant injury” is

open-ended and cannot be exactly defined.        See United States v.

Lancaster, 6 F.3d 208, 210 (4th Cir. 1993).

           Rather, it should be determined by a very
           factually-specific inquiry which takes into
           account   a   multitude   of   factors,   some
           articulable and some more intangible, that are
           observable in hearing the evidence presented
           on the injury.    Because the district court
           hears this evidence, it is by far best-suited
           to assess these myriad factors and determine
           whether a ‘significant injury’ has occurred.

Id.   Accordingly, the district court’s determination concerning
                            No. 05-30607
                                -13-

whether Robbins sustained bodily injury within the meaning of

§ 2A2.2 is a factual finding, reviewable under a clear error

standard.    See United States v. Isaacs, 947 F.2d 112, 114 (4th

Cir. 1991).

     Doyle specifically complains that the cuts and bruises

sustained by Robbins do not constitute “bodily injury.”    The

physician’s assistant testified that Robbins had numerous

scratches, bruises, lumps, and bumps after the assault and that

Robbins complained of pain in his ankle.   Photographs admitted

into evidence at trial support this testimony and show scratches

and bruises on Robbins’s back, shoulder, and near his ear.

Further, Robbins testified that the bruises, cuts, swelling, and

dizziness persisted for several hours, and eventually led him to

seek medical treatment from the prison infirmary on two separate

occasions.

     Other circuits have found that similar injuries constitute

bodily injury.   In United States v. Greene, the Ninth Circuit

found bodily injury was “obvious” where a slap in the face caused

swelling and pain.   964 F.2d 911, 911-12 (9th Cir. 1992).

Similarly, in United States v. Perkins, the Tenth Circuit found

bodily injury where the defendant knocked the breath out of the

victim and caused a small laceration, pain, and bruising during a

robbery.    132 F.3d 1324, 1325 (10th Cir. 1997); cf. Guerrero, 169

F.3d at 947 (vacating the defendant’s sentence because even

though the defendant struck the victim, there was no evidence of

any “bruising, swelling, or any other type of injury.”).

     As support for his argument that the enhancement was
                             No. 05-30607
                                 -14-

improper, Doyle notes that Robbins did not immediately seek

medical attention after the assault and that the physician’s

assistant described Robbins’s injuries as “superficial.”     Because

“[c]ourts have found that ‘painful and obvious’ injuries

constitute ‘bodily injuries’ even if the victim does not seek

medical attention,” Robbins’s delay in seeking treatment does not

necessarily support vacating his sentence.     See United States v.

Hamm, 13 F.3d 1126, 1128 (7th Cir. 1994).     Nor does the

physician’s assistant’s characterization of the injuries as

“superficial” remove them from the “painful and obvious”

category.   The physician’s assistant testified that by

“superficial” she meant only that the injuries were to soft

tissue, rather than bones.

     Given the evidence in the record regarding Robbins’s

injuries, the district court’s finding that Robbins suffered

bodily injury was not clearly erroneous.     Accordingly, the

district court properly enhanced Doyle’s sentence pursuant to

§ 2A2.2(b)(3)(A).

                             V. CONCLUSION

     For the reasons stated, we AFFIRM each conviction and the

sentences imposed on Doyle, Hill, Barnes, and Bynum, VACATE

Lister’s sentence, and REMAND for resentencing as to Lister.
