UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERIC FLORES, Defendant-Appellant.
No. 19-6011
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: September 10, 2020
Before: SUHRHEINRICH, LARSEN, and READLER, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0302p.06. Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville. No. 7:18-cr-00021-3—Robert E. Wier, District Judge.
COUNSEL
ON BRIEF: Steven S. Nolder, SCOTT & NOLDER CO. LPA, Columbus, Ohio, for Appellant. Charles P. Wisdom, Jr., UNITED STATES ATTORNEY‘S OFFICE, Lexington, Kentucky, for Appellee.
CHAD A. READLER, Circuit Judge. Eric Flores, a federal inmate, was convicted for his role in the brutal stabbing of a fellow inmate. In calculating Flores‘s Sentencing Guidelines range, the district court increased the base offense level by five pursuant to
BACKGROUND
A fight broke out between inmates inside Big Sandy federal penitentiary. When another inmate attempted to intervene, two other inmates—one of whom was Flores—attacked the intervenor, stabbing him at least six times with prison-made “shanks.” As prison guards restored order, they heard the stabbing victim shouting “help me, help me,” expressing the belief that he was dying. The guards observed large visible wounds on the victim‘s back, leg, and hand, with blood soaking through his clothing and pooling at his feet. The prison nurse later observed the same wounds to the victim‘s back, leg, and hand.
The victim was transported to a nearby hospital to treat large lacerations on his back, two smaller cuts to his side, one large cut on his hand, and another on his calf. CT scans showed that the victim‘s left shoulder blade was fractured by one of the punctures. The scans also revealed deep bruising caused by internal bleeding as well as air pockets introduced by the puncture wounds. Chemical testing indicated that the victim had a lower than average red blood cell count, hemoglobin concentration, red blood cell proportion, and red blood cell distribution width, consistent with significant blood loss.
Doctors performed five laceration repairs. As the lacerations were bleeding beneath the skin, each required sutures, with some requiring “complex” multi-layer-deep sutures. Because the wounds were made by non-sterile shanks, the victim was screened for and given intravenous medicine to prevent sepsis. The victim was also prescribed and administered two types of narcotic pain killers: an oral opioid and an intravenous morphine-analogue. During this period, medical records revealed that the victim indicated his pain levels were between 6 and 8 out of 10.
Flores was indicted by a grand jury for assaulting the victim with a dangerous weapon, in violation of
ANALYSIS
We review de novo a district court‘s legal interpretation of the Sentencing Guidelines, and we review for clear error a district court‘s factual conclusions. United States v. Thomas, 933 F.3d 605, 608 (6th Cir. 2019). As thoughtfully explained in Thomas, there appears to be some debate over whether we employ clear error or de novo review when it comes to reviewing a district court‘s application of the Sentencing Guidelines to the facts. Id. at 608–10 (discussing the “broad disagreement” in our Circuit and others over the applicable standard of review). Thomas ultimately left reconciling these conflicting standards for another day, as Thomas‘s appeal failed under even the more favorable de novo standard. So too here. Flores‘s challenge to the “serious bodily injury” enhancement similarly fails under either standard. Id. at 610; United States v. Parsons, 798 F. App‘x 922, 927 (6th Cir. 2020) (not reaching the legal standard because the district court did not err in applying the Sentencing Guidelines).
We start, as always, with the Guideline‘s text. Section 2A2.2(b)(3)(B) instructs district courts to apply a five-level enhancement to aggravated assault convictions if the assault caused “serious bodily injury.”
Seeing no inconsistency between the commentary and the Guideline it interprets, we apply the commentary‘s interpretation of the Guideline. United States v. Havis, 927 F.3d 382, 386 (6th Cir.) (en banc) (per curiam), reconsideration denied, 929 F.3d 317 (6th Cir. 2019). Adhering to that definition, we ask whether Flores caused the victim extreme pain, protracted impairment of a body part, or conditions requiring medical intervention.
Extreme Pain. As the district court aptly noted, “common sense” strongly suggests that one who is repeatedly stabbed and suffers deep stab wounds would typically experience a large amount of pain. Corroborating that common sense understanding here is eyewitness testimony. A
Medical Intervention. The victim‘s need for significant medical intervention independently supports imposition of the
Resisting this outcome, Flores contests the district court‘s decision to discount the victim‘s testimony supporting Flores. That the victim did not appear on behalf of the government was curious, to say the least. So too was his ensuing testimony. For instance, the victim denied Flores was the attacker in the face of contradictory video footage and eyewitness accounts. And he denied he was bleeding through his clothes following the assault in the face of graphic photos revealing otherwise. Perhaps, as the government suggests, the victim‘s testimony can be explained by a fear of retaliation or other concerns. Either way, in light of a mountain of contradictory evidence, the district court did not err in giving that testimony little weight, and in ultimately applying the enhancement.
CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.