US v. Jamal Hicks

Filing 920090227

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4878 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMAL HICKS, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. Glen M. Williams, Senior District Judge. (2:03-cr-10088-GMW) Submitted: January 28, 2009 Decided: February 27, 2009 Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for Appellant. Julia C. Dudley, Acting United States Attorney, Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jamal Hicks appeals his sentence on remand from his conviction for assaulting a federal correctional officer, in violation of 18 U.S.C. 111(a)(1), 111(b) (2006). 1 Following consideration of the presentence investigation report ("PSR"), 2 the arguments and objections of counsel, the statements made by Hicks, U.S.C. below and the relevant (2006), sentencing the factors court in set forth in 18 3553(a) the district sentenced PSR to Hicks forty and guideline range three recommended years of the months' imprisonment, supervised release, ordered him to pay restitution in the amount of $1,167.52. Hicks noted a timely appeal, and the sole error he raises on appeal is that the district court erred in resentencing him pursuant to U.S. Sentencing Guidelines Manual ("USSG") 2A2.2 (2003). district court's Specifically, he asserts error in the of the aggravated assault application On November 15, 2005, we affirmed his conviction, but remanded the case for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). The probation officer who prepared the PSR on resentencing concluded that Hicks should be sentenced at a total offense level of twenty, and a criminal history category of IV, with an attendant sentencing range of fifty-one to sixty-three months' imprisonment. 2 1 2 guideline, claiming the officer did not sustain serious bodily injury. 3 The charge arose on August 31, 2003, when Hicks punched Corrections Officer Brian Doyle in his left eye while passing through the metal detector in Lee and the at the United Virginia. the judge, States The as Correctional assault was Facility-US-Lee, captured at trial. on County by video Outside viewed view factfinder, of the surveillance camera, Hicks hit Officer Doyle a second time on his left cheek. As a result of the assault, Officer Doyle's left eye was swollen shut, and he received medical treatment at the institution as well as x-rays and treatment at a local hospital emergency room. Officer Doyle attested that he thereafter had to return to the facility to prepare a report, after which he was relieved of his duty and sent home, as he was unable to perform his job because of the swelling and impaired vision of his left eye. He further attested that the vision in his left eye was "very, very blurred" and that the bruising was "very We find Hicks' alternative argument, that USSG 2A2.3 may be applicable, to be without merit. Under the guidelines, for convictions under 18 U.S.C. 111, Hicks' offense of conviction, Appendix A directs the court to utilize either USSG 2A2.2 (Aggravated Assault) or 2A2.4 (Obstructing or Impeding Officers). USSG, App. A (2003). Hence, application of USSG 2A2.3, as Hicks argues, would have been inappropriate, as that section relates to assault statutes not at issue here. 3 3 substantial." swelling. He applied he ice for three days for to reduce two the days While already was scheduled the following the assault off from work, when he returned to work thereafter, he was given office work to do, as he was unable to perform his regular duties because of his impaired vision. Officer Doyle testified that he suffered from blurred vision, a splitting headache for a week, and that he had to take off three days of sick leave as a result of his injuries. four months after the for assault, blurred Officer Doyle Approximately sought further and medical treatment vision, residual bruising, headaches. The bruising from the assault was so significant as to still be evident at the time of trial, almost six months later. We review a sentence imposed by the district court "under a deferential abuse-of-discretion standard." United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall v. United States, 128 S. Ct. 586, 591 (2007)). In reviewing guideline determinations, we review questions of law de novo, and questions of fact for clear error. 436 F.3d 449, 456 (4th Cir. 2006). "Aggravated assault" is defined under the guidelines as "a felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury . . . with that weapon; (B) serious bodily injury; or (C) 4 an intent to commit another United States v. Green, felony." USSG 2A2.2, App. Note 1 (2003). "Serious bodily injury," is defined, in pertinent part, as "injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty." Id. USSG 1B1.1, App. Note 1(L)(2003). Given injuries, we the find nature no and duration in of the Officer district Doyle's court's clear error determination that these injuries were sufficiently serious so as to constitute "serious bodily injury" under the definition provided for in the guidelines. Accordingly, the district court's application of 2A2.2 was not erroneous. We therefore affirm Hicks' sentence. oral argument because in the the facts and legal before We dispense with contentions the court are and adequately presented materials argument would not aid the decisional process. AFFIRMED 5

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