                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS January 9, 2020
                                                                Christopher M. Wolpert
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 18-3227
                                               (D.C. No. 2:17-CR-20029-CM-1)
 RICHARD A. JAMES, JR.,                                    (D. Kan.)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and EID, Circuit Judges.



                                  I. INTRODUCTION

      Richard A. James, Jr., pleaded guilty to forcibly assaulting a federal prison

official, Joseph Brian Wilson, while Wilson was acting in the course of his duties.

See 18 U.S.C. § 111(a)(1), (b). The district court sentenced James to a term of

180 months’ imprisonment, a sentence forty-five months above the top of the

advisory Sentencing Guidelines range. James appeals, asserting the district court


      *
        This order and judgment is not binding precedent except under the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.
(1) procedurally erred by adding six levels to his total offense level pursuant to

U.S.S.G. § 2A2.2(b)(3)(E), 1 rather than five levels pursuant to § 2A2.2(b)(3)(B);

and (2) substantively erred by imposing an overly harsh 180-month sentence.

James’s appellate arguments are without merit. Thus, exercising jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court affirms the

sentence imposed by the district court.

                                II. BACKGROUND

      James assaulted Wilson, a “Unit Manager” with the Bureau of Prisons, as

Wilson was walking along a row of cells. James attacked Wilson from behind,

stabbing him repeatedly in the face and neck with a pair of scissors. Wilson was

taken to the Health Services Unit of the prison, where an initial examination

revealed he had three puncture wounds to the back of his head and neck; a deep

laceration behind his left ear; at least six lacerations on his face; jaw pain;

swelling on top of his head; and multiple abrasions on his left arm, left shoulder,

upper chest, and left hand. The puncture wounds and lacerations were actively

bleeding. Wilson was transported to Saint Luke’s Cushing Hospital in

Leavenworth, Kansas. The examining physician observed that one of the wounds

was of particular concern because of its proximity to the carotid artery. Hospital



      1
        All citations to the United States Sentencing Guidelines in this opinion are
to the 2016 version.

                                          -2-
records reflect a clinical impression of: traumatic head injury with multiple

lacerations; abrasions at multiple sites; and contusions of the face, right knee, and

left rib.

       After James pleaded guilty to violating § 111, the United States Probation

Office prepared a Presentence Investigation Report (“PSR”). The PSR calculated

James’s advisory guidelines range at 108 to 135 months’ imprisonment based on a

criminal history category of III and a total offense level of twenty-nine. In

concluding James’s total offense level was twenty-nine, the PSR added seven

levels because the offense involved permanent or life-threatening bodily injury.

See U.S.S.G. § 2A2.2(B)(3)(C). 2

       James challenged the PSR’s recommendation that his total offense level be

increased seven levels pursuant to § 2A2.2(b)(3)(C). He conceded his total

offense level should be increased by five levels because Wilson suffered “serious

bodily injury.” See id. § 2A2.2(b)(3)(B). He argued, however, that the seven-



       2
        The base offense level for a violation of § 111 is fourteen. U.S.S.G.
§ 2A2.2(a). The PSR added four levels because a dangerous weapon was used,
id. § 2A2.2(b)(2), and seven levels because the offense involved permanent or
life-threatening injury, id. § 2A2.2(b)(3)(C). The PSR subtracted one level
because the cumulative adjustments from application of §§ 2A2.2(b)(2) and (b)(3)
exceeded ten levels. U.S.S.G. § 2A2.2(b)(3). The PSR added two levels because
James was convicted under § 111(b), id. § 2A2.2(b)(7), and six levels because the
assault occurred while James was incarcerated, id. § 3A1.2(c)(2). The resulting
offense level of thirty-two was decreased by three because James accepted
responsibility when he pleaded guilty. Id. § 3E1.1(b).

                                         -3-
level increase set out in § 2A2.2(b)(3)(C) did not apply because Wilson’s injuries

were not permanent or life threatening. The government supported the

§ 2A2.2(b)(3)(C) enhancement and, furthermore, asked for an upward variance

and/or departure from the advisory guidelines range to the statutory maximum.

See 18 U.S.C. § 111(b) (providing for an enhanced maximum penalty of twenty

years’ imprisonment when an assault on a federal official involves the “use of a

deadly or dangerous weapon . . . or inflicts bodily injury”). In support of its

request for a statutory maximum sentence, the government argued: (1) James’s

pre-offense conduct demonstrated a propensity for unprovoked and unpredictable

violence; (2) the assault on Wilson was committed in a calculated and egregious

manner; (3) James’s post-offense conduct demonstrated future dangerousness.

      The district court held an evidentiary hearing at which Wilson and others

testified. Wilson had seventeen stab wounds and lost a “tremendous amount of

blood.” James became increasingly aggressive as the attack continued and Wilson

thought James would kill him. Wilson was treated for lacerations, abrasions, and

contusions. One of the stab wounds was millimeters from Wilson’s carotid artery

and doctors had trouble controlling the bleeding. In addition to the injuries to his

face and neck, Wilson tore his right meniscus when James pulled him down a

flight of stairs. Wilson had surgery but will need knee replacement in the future

because he now has trouble walking. Wilson also suffered a dislocated jaw,


                                         -4-
which resulted in continuing migraines and dental problems. The only way to

alleviate these ongoing problems would be to break and reset Wilson’s jaw. A

Federal Bureau of Investigation special agent testified James attacked Wilson

with a pair of beard shears James modified to have sharp ends. James told the

agent no one put him up to the attack and he did it because he wanted a “change

of scenery.” Finally, a BOP officer testified James was involved in another

altercation just a few weeks after the attack on Wilson. During a fight between

other inmates, James attempted to intervene by passing a thirteen-inch shank to

one of the inmates. The government argued the evidence showed James’s

predisposition for unprovoked and unpredictable violence, the calculated and

egregious manner of the attack, and James’s continued violent conduct after the

attack.

      The district court concluded James should receive a six-level increase to his

offense level under § 2A2.2(b)(3)(E) because he caused injuries to Wilson that

constituted more than “serious bodily injury” under § 2A2.2(b)(3)(B), but less

than “permanent or life-threatening bodily injury,” under § 2A2.2(b)(3)(C). 3 The


      3
        In so ruling, the district court highlighted, inter alia, the following
evidence: (1) Wilson made repeated trips to the emergency room to drain facial
scars, followed by rounds of antibiotics; (2) Wilson had a procedure to remove
skin that was causing infections; (3) Wilson has scarring on his face and head
from the stab wounds, which scarring still causes discomfort; (4) Wilson’s jaw
was dislocated, the dislocation has not fully healed, and the resulting
                                                                           (continued...)

                                           -5-
district court reasoned that Wilson’s injuries constituted more than “serious

bodily injury,” which means “an injury 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.” See U.S.S.G. § 1B1.1 cmt. n.1(L). The injuries did not, however,

rise to the level of being permanent or life-threatening, which the Sentencing

Guidelines define as an “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.” Id. § 1B1.1 cmt. n.1(J). The district court, therefore, sustained in

part and overruled in part James’s objection to the seven-level enhancement set

out in § 2A2.2(b)(3)(C). Based on this determination, James’s total offense level

remained at twenty-nine and the resulting advisory Guidelines range remained at

108-135 months’ imprisonment. 4

      3
       (...continued)
misalignment of his teeth results in grinding and weekly migraine headaches;
(5) Wilson tore his meniscus in his right knee during the attack, a repair attempt
was not completely successful, he still experiences pain in his right knee and
wears a brace with regularity, and his physician advised him that the only
recourse available is knee replacement surgery; (6) Wilson suffers emotional and
psychological difficulties since the attack, including trouble sleeping and
nightmares.
      4
      This is because of the impact of U.S.S.G. § 2A2.2(b)(3), which limits the
cumulative adjustments from application of §§ 2A2.2(b)(2) and 2A2.2(b)(3) to a
                                                                   (continued...)

                                          -6-
      In announcing James’s sentence, the district court recognized it was

required “to impose a sentence that is sufficient but not greater than necessary,”

18 U.S.C. § 3553(a)(2), and noted it had considered the Sentencing Guidelines,

the PSR, and the statements of the parties. It acknowledged the advisory

Guidelines range was 108 to 135 months’ imprisonment and stated, in accordance

with 18 U.S.C. § 3553(a), it had considered the nature and circumstances of the

offense and the history and characteristics of the defendant. In that vein, the

district court noted it considered “the extremely serious nature of the instant

offense,” as well as “the extremely serious nature of defendant’s criminal

history.” The district court noted James’s 2015 conviction involved robbing a

store at knife point and threatening officers with a knife as they attempted to

arrest him. The district court then described the instant offense as “a calculated

attack.” It considered James’s statements to the FBI after the attack, specifically

his assertion he attacked Wilson in order to obtain a “change of scenery.” The

district court noted the scissors used by James were capable of inflicting lethal

injuries to Wilson and that the treating physician indicated a stab wound was mere

millimeters away from Wilson’s carotid artery. In addition, the district court

considered James’s past mental health diagnoses and treatment, which began



      4
        (...continued)
total of ten levels. See supra n.2.

                                         -7-
when James was young. The district court determined, based on the facts

presented, an upward departure from the advisory guidelines range was warranted

under U.S.S.G. §§ 5K2.2 and 5K2.21. 5 The district court likewise concluded an

upward variance was warranted based on the factors set out in 18 U.S.C.

§ 3553(a). It explained that a sentence of 180 months’ imprisonment was

“sufficient but not greater than necessary” to reflect the seriousness of the

offense, promote respect for the law, provide just punishment for the offense,

afford adequate deterrence to criminal conduct, and protect the public from

further crimes of the defendant.

                                   III. ANALYSIS

      “Reasonableness review is a two-step process comprising a procedural and

a substantive component.” United States v. Verdin-Garcia, 516 F.3d 884, 895

(10th Cir. 2008). James asserts the district court committed procedural error

when it concluded he inflicted on Wilson bodily injuries that were more than



      5
        Section 5K2.2, which authorizes an upward departure for significant
physical injury to a victim, specifically advises that “[t]he extent of the increase
ordinarily should depend on . . . the extent to which the injury was intended or
knowingly risked.” Section 5K2.21 permits an upward departure “to reflect the
actual seriousness of the offense[] based on conduct . . . underlying a potential
charge not pursued in the case.” In that regard, the PSR indicated the district
court might “consider whether the facts of this case establish by a preponderance
of the evidence the defendant’s intent to commit the crimes of Assault With Intent
to Commit Murder, pursuant to 18 U.S.C. § 113(a)(1), or Attempted Murder,
pursuant to 18 U.S.C. § 1113.”

                                         -8-
serious. He also asserts that whether viewed as a variance or a departure, the

180-month sentence imposed by the district court is substantively unreasonable.

      Under procedural-reasonableness review, this court “asks whether the

sentencing court committed any error in calculating or explaining the sentence.”

United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008).

Procedural errors include “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38,

51 (2007). In reviewing the district court’s sentence for procedural

reasonableness, this court reviews the district court’s legal conclusions de novo

and its factual findings for clear error. United States v. Shuck, 713 F.3d 563, 570

(10th Cir. 2013). “A finding is clearly erroneous only if it is without factual

support in the record or if, after reviewing all the evidence, we are left with a

definite and firm conviction that a mistake has been made.” United States v.

Shippley, 690 F.3d 1192, 1199 (10th Cir. 2012) (quotation and alteration omitted).

Notably, this court has held that the “district court’s determination of the

significance of a bodily injury is a finding of fact we review for clear error.”

United States v. Perkins, 132 F.3d 1324, 1326 (10th Cir. 1997); see also United

States v. Mejia-Canales, 467 F.3d 1280, 1282 (10th Cir. 2006).


                                          -9-
      This court reviews the substantive reasonableness of “all sentences—

whether inside, just outside, or significantly outside the Guidelines range—under

a deferential abuse-of-discretion standard.” Gall, 552 U.S. at 41. In undertaking

that deferential review, this court looks to the “totality of the circumstances.”

United States v. Cookson, 922 F.3d 1079, 1090 (10th Cir. 2019) (quotation

omitted). “A district court abuses its discretion when it renders a judgment that is

arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (quotation

omitted). “[S]ubstantive reasonableness addresses whether the length of the

sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” United States v. Huckins, 529 F.3d

1312, 1317 (10th Cir. 2008) (quotation omitted). “We bear in mind that the

sentencing judge is in a superior position to find facts and judge their import

under § 3553(a) in the individual case because the judge sees and hears the

evidence, makes credibility determinations, has full knowledge of the facts and

gains insights not conveyed by the record.” Cookson, 922 F.3d at 1091

(quotations, alteration, and citation omitted). For that reason, in reviewing the

substantive reasonableness of a sentence, this court “may not examine the weight

a district court assigns to various § 3553(a) factors, and its ultimate assessment of

the balance between them, as a legal conclusion to be reviewed de novo. Instead,

we must give due deference to the district court’s decision that the § 3553(a)


                                         -10-
factors, on a whole, justify the extent of the variance.” United States v. Smart,

518 F.3d 800, 808 (10th Cir. 2008) (quotation omitted). The district court need

not afford equal weight to each § 3553(a) factor, and this court “will defer on

substantive-reasonableness review not only to a district court’s factual findings

but also to its determinations of the weight to be afforded to such findings.”

Cookson, 922 F.3d at 1094 (quotation omitted).

A. Procedural Reasonableness

      The district court did not clearly err in determining Wilson’s bodily injuries

fell somewhere between serious and permanent or life-threatening. See U.S.S.G.

§ 1B1.1 cmt. nn.1(J), 1(L). The record reveals that the numerous puncture

wounds James inflicted on Wilson resulted in permanent facial scarring. That

scarring resulted in several trips to the emergency room in the aftermath of the

attack. The scars would swell up with infection and result in a “large bloody

mass” on Wilson’s face. The scars would have to be drained and Wilson placed

on intravenous antibiotics. Ultimately, Wilson had to have plastic surgery to

remove skin from his face that was causing the recurring infections. 6 The scars


      6
          Wilson testified as follows as to this surgery:

             [Answer]: The doctor informed my wife and I, what he did
      was he removed the large chunk of skin completely because it was a
      hair follicle that was growing back into my body. So, he removed
      the hair follicle, and then he stitched my face back together without
                                                                      (continued...)

                                           -11-
continue to cause Wilson discomfort. In particular, Wilson’s facial scars are

“tender,” “sunburn easily,” and “swell[] up a lot of times.” Wilson’s jaw was

dislocated during the attack and the injury never healed completely.

Misalignment of Wilson’s teeth results in grinding, different chew patterns, and

migraine headaches. The migraines occur “a couple times a week” and have not

reduced in intensity or frequency since the attack. The only potential treatment

for the dislocation is breaking and resetting the jaw. Finally, Wilson suffered an

injury to his knee during the attack that could not be fully corrected through

surgery. The knee injury prevents Wilson from engaging in physical activities

(like running) that he was able to enjoy before the attack. The knee injury causes

Wilson constant pain and “a lot of problems walking.” Wilson also regularly

wears a brace to deal with weakness in the knee. The only way to remedy the

knee pain is with a knee replacement. Wilson’s doctor told him, however, that he

would not “support” a knee replacement, nor would insurance cover it, because of

Wilson’s young age. Given all this evidence, the district court did not err, let




      6
       (...continued)
      requiring any skin grafting, because it would be hard to match the
      skin color with any other part of your body on your face.

             [Question]: Do you have a scar from that?

             [Answer]: I have a very large scar. . . .

                                         -12-
alone clearly err, in determining Wilson’s injuries, even if not “permanent,” were

greater than the types of “serious” injuries defined in § 1B1.1 cmt. n.1(L).

      In resisting this conclusion, James asserts Wilson’s injuries are nothing

more than “serious” because they could be remedied through skin-graft surgery,

breaking and resetting Wilson’s jaw, and knee replacement. In support of this

assertion, James relies on the Seventh Circuit’s decision in United States v.

Webster, 500 F.3d 606, 607–08 (7th Cir. 2007). In so arguing, however, James

entirely fails to account for the record evidence indicating knee replacement is not

a viable option for Wilson’s knee injury until some time far into the future and

problems finding compatible skin for grafting could render further plastic surgery

on the facial scars inadvisable. In any event, James’s reliance on Webster is

entirely misplaced. Webster makes clear that in assessing the applicability of a

§ 2A2.2(b)(3) offense-level enhancement, district courts should generally take

victims as they are:

      Uncertainty does not preclude a finding of permanence. Instead of
      asking whether a victim’s future might be brighter, a district court
      should act on the basis of the victim’s current condition and current
      medical information. If an impairment has not been corrected by the
      time of sentencing, and will last for life unless surgically corrected in
      the future, then it should be treated as “permanent” under the
      Guidelines unless future correction would be a straightforward
      procedure.

500 F.3d at 608. The record here shows that at the time of sentencing Wilson

suffered something approaching permanent injuries. Furthermore, there is no

                                         -13-
indication in the record any possible future surgical corrections would entail

straightforward procedures. Indeed, the record makes clear that is not the case.

Thus, Webster does not remotely support James’s assertions the district court

erred in concluding Wilson’s injury were more than serious. 7

B. Substantive Reasonableness

      This court need not linger on James’s substantive reasonableness argument

because it is utterly lacking in merit. Given the brutal, calculated, and

remorseless attack by James on Wilson and the overwhelming evidence, in the

form of his pre-and post-attack criminal conduct, that James is a danger to

society, the district court’s determination that a 180-month sentence is necessary

to account for the sentencing factors set out in § 3553(a) is eminently reasonable. 8

      The district court carefully considered all of the requisite factors in

conducting its detailed, individualized assessment of James’s situation. Before

imposing sentence, it considered the Sentencing Guidelines, the PSR, the

      7
        Given that Webster does not support James’s arguments on appeal, this
court need not, and does not, decide whether the potential for future surgical
repair, even if objectively straightforward, is enough to render an injury
impermanent.
      8
       The § 3553(a) factors include the nature and circumstances of the offense
and characteristics of the defendant; the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, provide just punishment,
afford adequate deterrence, and protect the public from further crimes of the
defendant; and the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct.
18 U.S.C. § 3553(a).

                                        -14-
statements of the parties, and the victim’s statements. It considered the extremely

serious nature of the instant offense, as well as the extremely serious nature of

James’s criminal history. The district court elaborated that the attack was a

brutal, unprovoked act that could have cost Wilson his life and imposed upon

Wilson severe, lifetime impacts. The district court considered James’s statements

after the attack, specifically his comment that he attacked Wilson in order to

obtain a transfer. The district court also considered the criminal act that led to

James’s incarceration and his involvement in prison violence a mere two weeks

after the attack. The district court balanced these factors against James’s

significant mental health issues. The district court explained that a sentence of

180 months was “sufficient but not greater than necessary” to reflect the

seriousness of the offense, promote respect for the law, provide just punishment

for the offense, afford adequate deterrence to criminal conduct, and protect the

public from further crimes of the defendant. It told James, “it does appear that

there has been a—a pattern in your past and now present regarding engaging in

violent or potentially life threatening criminal conduct, and there does need to be

some deterrence to that, as well as protect the public from that type of conduct

from you.”

      Ultimately, James simply disagrees with the manner in which the district

court weighed the § 3553(a) sentencing factors in deciding to impose the 180-


                                         -15-
month sentence. It is not, however, “the job of an appellate court to review de

novo the balance struck by a district court among the factors set out in § 3553(a).”

United States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008). Because the district

court’s sentence falls within the realm of rationally available sentencing choices,

it is substantively reasonable. 9

                                    IV. CONCLUSION

      For those reasons set out above, the sentence imposed by the United States

District Court for the District of Kansas is hereby AFFIRMED.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




      9
        Given this determination, that an upward variant sentence of forty-five
months is substantively reasonable, it is unnecessary to determine whether the
district court’s 180-month sentence resulted from a variance or a departure.

                                         -16-
