USA v. Francisco Gasca-Ruiz

Filing

FILED OPINION (SIDNEY R. THOMAS, DIARMUID F. O'SCANNLAIN, M. MARGARET MCKEOWN, WILLIAM A. FLETCHER, RONALD M. GOULD, JAY S. BYBEE, CARLOS T. BEA, N. RANDY SMITH, PAUL J. WATFORD, ANDREW D. HURWITZ and MICHELLE T. FRIEDLAND) AFFIRMED. Judge: PJW Authoring, Judge: ADH Concurring, FILED AND ENTERED JUDGMENT. [10383938] [14-50342, 14-50343]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

Nos. 14-50342
14-50343

v.

D.C. Nos.
3:14-cr-00958-GPC-1
3:12-cr-01124-GPC-1

FRANCISCO JAVIER GASCARUIZ,
Defendant-Appellant.

OPINION

Appeals from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted En Banc January 12, 2016
Pasadena, California
Filed April 5, 2017
Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain, M. Margaret McKeown, William A. Fletcher,
Ronald M. Gould, Jay S. Bybee, Carlos T. Bea, N. Randy
Smith, Paul J. Watford, Andrew D. Hurwitz, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Watford;
Concurrence by Judge Hurwitz

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UNITED STATES V. GASCA-RUIZ
SUMMARY*

Criminal Law
The en banc court affirmed the district court’s sentencing
determination in a case this court took en banc to resolve an
intra-circuit conflict over the standard of review that applies
when this court reviews a district court’s application of the
United States Sentencing Guidelines to the facts of a given
case.
The en banc court held that, as a general rule, a district
court’s application of the Sentencing Guidelines to the facts
of a given case should be reviewed for abuse of discretion.
The en banc court wrote that there is at least one exception to
the general rule: the determination whether a defendant’s
prior conviction is for a “crime of violence,” as required
under some provisions of the Guidelines, remains subject to
de novo review.
Reviewing de novo whether the district court identified
the correct legal standard in applying U.S.S.G.
§ 2L1.1(b)(7)(A) in this case, the en banc court concluded
that it did. The en banc court held that in applying
§ 2L1.1(b)(7)(A) to the undisputed facts of this case, the
district court did not abuse its discretion in concluding that
the standard for bodily injury had been met.
Judge Hurwitz, joined by Judge W. Fletcher, concurred in
part and concurred in the result. He wrote that whether
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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reviewed de novo or with deference, the district court’s
determination was plainly correct, and he would therefore
leave for another day the issue of appropriate standard of
review.

COUNSEL
Vincent J. Brunkow (argued) and Ryan V. Fraser, Federal
Defenders of San Diego, Inc., San Diego, California, for
Defendant-Appellant.
Peter Ko (argued), Chief, Appellate Section, Criminal
Division; Benjamin J. Katz, Assistant United States
Attorney; Laura E. Duffy, United States Attorney; United
States Attorney’s Office, San Diego, California; for
Plaintiff-Appellee.

OPINION
WATFORD, Circuit Judge:
We took this case en banc to resolve an intra-circuit
conflict over the standard of review that applies when we
review a district court’s application of the United States
Sentencing Guidelines to the facts of a given case. We
conclude that as a general rule such decisions should be
reviewed for abuse of discretion.
I
The defendant in this case, Francisco Gasca-Ruiz, pleaded
guilty to transporting undocumented immigrants in violation

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of 8 U.S.C. § 1324. The facts relevant to his sentencing
proceeding are undisputed, as they are drawn solely from a
Presentence Report whose accuracy neither party challenged.
Gasca-Ruiz was arrested by Border Patrol officers
conducting surveillance operations near the United StatesMexico border. They spotted him driving suspiciously and
saw him pick up five passengers. Some time later, after
Gasca-Ruiz pulled over, two of the passengers got out of the
car and climbed into the trunk. When the officers tried to
stop Gasca-Ruiz’s car, he led them on a high-speed chase
during which he ran a red light, almost struck another vehicle,
and drove airborne over a drainage ditch. The chase ended
when Gasca-Ruiz blew out the passenger-side tires while
attempting to drive over a curb. Officers apprehended GascaRuiz after a brief foot chase and detained him along with the
five passengers in the car.
The sentencing issue raised on appeal centers on the
extent of the injuries suffered by one of the passengers
trapped in the trunk. What we know on this subject comes
from two paragraphs in the Presentence Report, which we
will simply quote in full:
13. The MWs [material witnesses] in the
trunk reported their bodies were bouncing
around in the trunk compartment. They
further said it was difficult to breathe because
the trunk began to fill with different types of
fumes burning from the vehicle. One of the
MW’s reported he was screaming it was too
hot inside and stated he was getting burned.
He informed he pounded on the interior of the
trunk, but no one responded. The MWs said

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they were unable to exit the trunk of the
vehicle without the assistance from the law
enforcement officers.
14. One of the MWs in the trunk suffered
mild lacerations to his fingers from trying to
escape and a minor burn on his forearm from
the trunk compartment overheating. His
injuries were treated at the U.S. Border Patrol
station in El Centro; however, he refused to
receive any medical attention.
Based on these facts, the Presentence Report
recommended imposing the sentencing enhancement in
§ 2L1.1(b)(7) of the Sentencing Guidelines. That provision
calls for a two-level increase in the defendant’s offense level
if any person sustained “bodily injury” as a result of the
offense, a four-level increase if “serious bodily injury”
resulted, or a six-level increase if “permanent or lifethreatening bodily injury” resulted.
U.S.S.G.
§ 2L1.1(b)(7)(A)–(C). The Presentence Report recommended
the two-level increase for “bodily injury,” which the
Guidelines define as “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.” § 1B1.1, comment.
n.1(B). (By way of comparison, the Guidelines define
“serious bodily injury” as “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.” § 1B1.1, comment. n.1(L).)
Over Gasca-Ruiz’s objection, the district court imposed
the two-level increase for bodily injury under

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§ 2L1.1(b)(7)(A). The court explained that it found the
provision applicable because one of the passengers in the
trunk sustained “several lacerations on his body and a small
burn on his right arm.” The court further explained that the
passenger “reported it was difficult to breathe because the
trunk began to fill with differing types of fumes. He was
screaming. It was too hot inside. And he stated he was
getting burned.” The court sentenced Gasca-Ruiz to 37
months in prison, the high end of the resulting advisory
Guidelines range.
On appeal, Gasca-Ruiz contends that the district court
improperly imposed the two-level increase for bodily injury.
In his view, the mild lacerations and minor burn suffered by
the passenger in the trunk are not “significant” injuries, as
§ 2L1.1(b)(7)(A) requires. In his briefs before the threejudge panel, Gasca-Ruiz urged the court to review the district
court’s application of § 2L1.1(b)(7)(A) to the facts of his case
de novo. The government countered that we should review
the district court’s decision deferentially. Both sides were
able to cite cases supporting their respective positions
because a longstanding intra-circuit conflict exists on this
issue. Some of our cases have said that we review de novo a
district court’s application of the Guidelines to the facts,
while other cases have held that guideline-application
decisions are reviewed deferentially for abuse of discretion.
See United States v. Staten, 466 F.3d 708, 713 n.3 (9th Cir.
2006) (noting the conflict).
In most cases, the standard of review does not affect the
outcome, which is why many three-judge panels in the past
have been able to side-step this issue. See, e.g., United States
v. Tanke, 743 F.3d 1296, 1306 (9th Cir. 2014); United States
v. Garcia, 497 F.3d 964, 969 (9th Cir. 2007). The three-judge

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panel in this case, however, thought that the standard of
review could be dispositive. The panel sua sponte called for
the case to be heard en banc, and a majority of the judges in
active service agreed to do so in order to resolve the intracircuit conflict over the proper standard of review.1
II
A district court’s decision to apply (or not apply) a
particular provision of the Sentencing Guidelines involves
three distinct components. First, the district court must
identify the correct legal standard, a task that typically entails
selecting and properly interpreting the right Guidelines
provision. Second, the court must find the relevant historical
facts, meaning the facts that answer primarily “what
happened” types of questions (who, what, when, where, why,
etc.). And third, the court must apply the appropriate
guideline to the facts of the case—that is, decide whether the
set of historical facts as found satisfies the governing legal
standard.
Our cases uniformly hold that we review the district
court’s identification of the correct legal standard de novo and
the district court’s factual findings for clear error. An intracircuit conflict has arisen only with respect to the third
component: application of the Guidelines to the facts. Most
of our cases have held that we review guideline-application

1

Gasca-Ruiz also raises a second, completely separate issue
concerning the alleged denial of his right to allocution at sentencing.
Because Gasca-Ruiz was afforded an adequate opportunity to address the
court before the sentence was imposed, we summarily reject his arguments
on this issue. See United States v. Allen, 157 F.3d 661, 666 (9th Cir.
1998).

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decisions for abuse of discretion, but some of our cases state
that we review such decisions de novo.
We conclude that, as a general rule, a district court’s
application of the Sentencing Guidelines to the facts of a
given case should be reviewed for abuse of discretion. To the
extent our prior cases state otherwise, they are overruled. We
will explain in a moment our reasons for reaching this
conclusion, but it will help to clarify at the outset the
distinction between the first and third components mentioned
above—identifying the correct legal standard on the one hand,
and applying that standard to the facts of a given case on the
other.2
A
In most Sentencing Guidelines appeals, the applicable
legal standard is supplied by the Guidelines themselves. So
to determine whether the district court identified the correct
legal standard, we review whether the court selected the right
Guidelines provision in the first instance and whether the
court correctly interpreted the meaning of that provision. To
arrive at the governing legal standard, district courts usually
need to do little more than consult the text of the applicable
guideline and its accompanying commentary. Sometimes,
though, when confronted with a factual scenario not explicitly
2

We have not always been vigilant in keeping these two components
distinct. For example, in many of the cases in which we have stated that
a district court’s “application” of the Guidelines is reviewed de novo, what
we actually reviewed was whether the district court identified the correct
legal standard. See, e.g., United States v. Crawford, 372 F.3d 1048, 1053,
1061–62 (9th Cir. 2004) (en banc) (vacating the defendant’s sentence
because the district court did not apply the legal standard established by
circuit precedent).

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addressed by the guideline’s text or commentary (or by
binding precedent construing them), district courts may need
to engage in further “norm elaboration” before applying the
guideline to the facts of the case at hand. See Henry P.
Monaghan, Constitutional Fact Review, 85 Colum. L. Rev.
229, 236–37 (1985). That occurs when, in the course of
rendering its decision, the district court formulates or adopts
a generalized rule that will apply to an entire class of cases,
not just to the case at hand. We will review the district
court’s formulation or adoption of such rules de novo,
because any error in formulating or adopting a rule of general
application necessarily results in a failure to identify the
correct legal standard.
We can offer a few examples of the sorts of generalized
rules that district courts have formulated in the course of
applying particular provisions of the Guidelines, which we
have then reviewed de novo. In United States v. Latimer,
991 F.2d 1509 (9th Cir. 1993), the district court decided that,
as used in the career offender guideline, “incarceration”
includes confinement in a community treatment center. Id. at
1510–11. In United States v. O’Brien, 50 F.3d 751 (9th Cir.
1995), the district court held that the Guidelines’ vulnerablevictim enhancement applies regardless of whether the
defendant specifically targeted the victims because they were
vulnerable. Id. at 756. And in United States v. Jennings,
439 F.3d 604 (9th Cir. 2006), the district court concluded that
the statement “I have a gun,” when made during the course of
a robbery without anything more, is insufficient as a matter
of law to trigger the Guidelines’ threat-of-death enhancement.
Id. at 607–08. The rules formulated by the district courts in
each of these cases were rules of general application not
limited to the specific facts of the cases before them. We
properly reviewed the rule-formulation aspect of the district

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courts’ decisions de novo as part of the inquiry into whether
the courts had correctly interpreted the Guidelines and thus
identified the correct legal standard. When, in the course of
rendering its decision, the district court formulates or adopts
a broad general rule—such as deciding that confinement in a
community treatment center is always or never
incarceration—de novo review of that aspect of the decision
is appropriate.
We can now shift to the component of the district court’s
decision at issue in this appeal: the decision to apply (or not
apply) a particular guideline to the facts of a given case.
Guideline-application decisions, in the sense we refer to them
here, arise only after the district court has identified the
correct legal standard and properly found the relevant
historical facts. At that point, there is often room for
judgment in deciding whether the specific constellation of
facts at issue meets the governing legal standard. As is true
in other contexts, the more general the standard set by the
Guidelines, “the more leeway courts have in reaching
outcomes in case-by-case determinations.” Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004); see also Monaghan,
supra, 85 Colum. L. Rev. at 236 (“The more general the rule,
the larger the domain for judgment.”). Under the standard of
review we adopt today, this last component of the district
court’s decision—deciding whether a specific set of facts
satisfies the correctly identified legal standard—will
generally be subject to review for abuse of discretion.
B
Having clarified what we mean by guideline-application
decisions, we can explain why we believe such decisions
should be reviewed deferentially rather than de novo.

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In deciding which standard of review should govern, the
most important consideration is whether district courts or
courts of appeals are better situated to make guidelineapplication decisions in the first instance. See Miller v.
Fenton, 474 U.S. 104, 114 (1985). If district courts are better
situated to do so, and we believe they are, then adopting a
deferential standard of review is the most prudent course.
That conclusion is supported by Buford v. United States,
532 U.S. 59 (2001), which held that one particular guidelineapplication decision—deciding whether two prior convictions
are “related” for purposes of the career offender
guideline—should be reviewed deferentially on appeal. Id.
at 60. We think the Court’s reasoning in Buford applies with
equal force to guideline-application decisions more generally.
The defendant in Buford pleaded guilty to armed robbery
and faced sentencing under the career offender provisions of
the Guidelines, which apply if the defendant has at least two
prior convictions for violent or drug-related felonies.
U.S.S.G. § 4B1.1(a). The Guidelines provided that if prior
convictions were “related” to one another, they would be
treated as a single conviction for purposes of the career
offender guideline. Buford, 532 U.S. at 60–61. The
accompanying commentary stated that convictions would be
deemed “related” if they were consolidated for sentencing.
Id. at 61. The Seventh Circuit, the jurisdiction in which the
case arose, had established a specific standard for
determining whether prior convictions were consolidated for
sentencing called “functional consolidation.” Id. The
defendant did not dispute that the district court had identified
the correct legal standard—the Seventh Circuit’s “functional
consolidation” standard. Nor did she contest any of the
relevant historical facts. She challenged only the district

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court’s application of the governing legal standard to the facts
of her case. Id. at 63.
The Supreme Court held that the district court’s
consolidation determination—an “application of the
Guidelines to the facts”—should be reviewed deferentially on
appeal rather than de novo. Id. That rule made sense, the
Court reasoned, because “the district court is in a better
position than the appellate court to decide whether a
particular set of individual circumstances demonstrates
‘functional consolidation.’” Id. at 64. District courts make
far more functional consolidation determinations than
appellate courts do and thus are likely to be more familiar
with the nuts and bolts that go into making such
determinations. And deciding whether the standard for
functional consolidation has been satisfied “depend[s] heavily
upon an understanding of the significance of case-specific
details,” a matter over which district courts again have an
institutional advantage. Id. at 65.
The Court recognized that adopting a deferential standard
of review would sacrifice a measure of uniformity in
application of the career offender guideline. But the Court
concluded that concerns with ensuring uniformity, which
ordinarily weigh in favor of de novo review, did not carry
significant weight in this context. The guideline-application
aspect of the district court’s decision did not involve
establishment of a rule of general application; it involved
only an issue that “grows out of, and is bounded by, casespecific detailed factual circumstances.” Id. Fact-bound
determinations of that sort limit the uniformity-producing
value of de novo appellate review. Id. at 65–66. (The Court
has elsewhere noted that “[f]act-bound resolutions cannot be
made uniform through appellate review, de novo or

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otherwise.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405 (1990) (internal quotation marks omitted).) And to the
extent greater uniformity is necessary, the Court stated, the
Sentencing Commission can provide it by making
adjustments to the Guidelines or the accompanying
commentary. Buford, 532 U.S. at 66.3
The Court’s reasoning in Buford, although offered with
respect to one guideline-application decision in particular,
extends in our view to guideline-application decisions more
generally. District courts are better situated than appellate
courts to make the fact-specific determinations inherent in
virtually all guideline-application decisions. District courts
make far more guideline-application decisions of all sorts, see
Koon v. United States, 518 U.S. 81, 98 (1996), and thus are
likely to be more familiar with the nuances that go into
applying Guidelines provisions across the board. Guidelineapplication decisions, as we have defined them, almost
always “depen[d] heavily upon an understanding of the
significance of case-specific details,” Buford, 532 U.S. at 65,
because once the district court has identified the correct legal
standard and properly found the relevant historical facts, all
that remains is the fact-bound judgment as to whether a

3

We are aware that Buford relied in part on 18 U.S.C. § 3742(e),
which states that courts of appeals “shall give due deference to the district
court’s application of the guidelines to the facts.” The circuits are divided
on whether the “due deference” provision of § 3742(e) survived the
Supreme Court’s subsequent decision in United States v. Booker, 543 U.S.
220, 259 (2005). See, e.g., United States v. Richards, 674 F.3d 215, 219
n.2 (3d Cir. 2012) (holding that § 3742(e)’s “due deference” provision
survives Booker); United States v. Lopez-Urbina, 434 F.3d 750, 763 n.1
(5th Cir. 2005) (holding that it does not). Because we conclude that
guideline-application decisions should be reviewed deferentially anyway,
we need not decide which side of the circuit split to join.

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specific set of facts satisfies the governing legal standard. In
the Sentencing Guidelines context in particular, that is a
judgment district courts are uniquely qualified to make. Each
guideline-application decision is ultimately geared toward
assessing whether the defendant before the court should be
viewed as more or less culpable than other offenders in a
given class. In light of their experience sentencing
defendants on a day-in-and-day-out basis, district courts
possess an institutional advantage over appellate courts in
making such culpability assessments. See Koon, 518 U.S. at
98.
Finally, the case-specific determinations inherent in
guideline-application decisions have limited precedential
value, a factor that ordinarily cuts against requiring de novo
appellate review. See Thompson v. Keohane, 516 U.S. 99,
114 & n.14 (1995). Independent review of fact-bound
determinations seldom yields an adequate return on the
investment of appellate resources required, because such
review will generally “fail to produce the normal lawclarifying benefits that come from an appellate decision on a
question of law.” Pierce v. Underwood, 487 U.S. 552, 561
(1988).
Adopting abuse of discretion as the standard of review for
guideline-application decisions will not result in a dramatic
change in our circuit’s law. As noted earlier, in many of the
cases in which we stated that the district court’s “application”
of the Guidelines would be reviewed de novo, what we
actually reviewed was whether the district court had
identified the correct legal standard. De novo review will
continue to apply in such cases under the rule we adopt today.
And while some of our decisions have classified particular
guideline-application decisions as “factual” determinations

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subject to clear error review, see, e.g., United States v.
Hurtado, 760 F.3d 1065, 1068 (9th Cir. 2014); United States
v. Miguel, 368 F.3d 1150, 1156 (9th Cir. 2004), those cases
would not come out any differently. The guidelineapplication determinations in those cases would now be
reviewed for abuse of discretion rather than clear error, but in
this context the two standards are functionally the same. See
Cooter & Gell, 496 U.S. at 401.
The general rule we have established is subject to a
proviso, as most general rules are. Guideline-application
decisions should almost always be reviewed deferentially for
abuse of discretion, but there is at least one situation in which
de novo review is appropriate: determining whether a
defendant’s prior conviction is for a “crime of violence,” as
required under some provisions of the Guidelines. See, e.g.,
U.S.S.G. §§ 2L1.2(b)(1)(A)(ii), 2S1.1(b)(1)(B)(ii). We have
consistently held that such determinations are reviewed de
novo, see, e.g., United States v. Grajeda, 581 F.3d 1186, 1188
(9th Cir. 2009), and we see no reason to change that rule,
even if we view the crime-of-violence determination as a
guideline-application decision.
Viewed from that
perspective, the Guidelines provide a definition of “crime of
violence” and the categorical approach used to make that
determination is now well settled, so the correct legal
standard will not be in dispute. All the district court must
decide is whether a particular conviction satisfies the
standard. But the categorical approach requires the crime-ofviolence determination to be made on a categorical
basis—either all convictions under a particular statute qualify
or none do. See Descamps v. United States, 133 S. Ct. 2276,
2287 (2013). Nothing turns on the particulars of the
defendant’s own prior offense. In that sense, determining
whether a particular conviction qualifies as a crime of

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violence is akin to formulating a rule of general application,
a matter properly reviewed de novo. We need not determine
at this juncture whether there are any other limited exceptions
to the general rule that guideline-application decisions are
reviewed for abuse of discretion.
III
The resolution of this appeal is straightforward under the
standard of review discussed above. We review de novo
whether the district court identified the correct legal standard,
and we conclude that it did. The court expressly referred to
the applicable provision of the Guidelines, § 2L1.1(b)(7)(A),
which establishes the governing legal standard—“bodily
injury” sustained as a result of the offense. The district court
did not, it is true, make an explicit reference to § 1B1.1,
whose commentary supplies the definition of “bodily injury,”
or to the terms used in that definition: “any significant
injury,” an injury that is “painful and obvious,” an injury that
is “of a type for which medical attention ordinarily would be
sought.” U.S.S.G. § 1B1.1, comment. n.1(B). As a matter of
best practices, district courts should make explicit reference
to the section number of the applicable Guidelines provision
or alternatively use the language of the provision in rendering
their decisions. That is the simplest way to ensure that the
record shows the court had in mind the correct legal standard.
But absent some indication that the district court had in mind
a different definition of “bodily injury,” and here there is
none, we will not assume that the court applied the wrong
legal standard when assessing the injuries sustained by the
passenger in Gasca-Ruiz’s car.
In the course of applying the legal standard established by
§ 2L1.1(b)(7)(A) to the facts of this case, the district court did

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not formulate any rules of general application. The court
merely explained why, in its judgment, the specific set of
facts involved here satisfied the legal standard for “bodily
injury.” All that remains, then, is for us to determine whether
the district court abused its discretion in making that
judgment. (We would ordinarily review the district court’s
factual findings for clear error, but in this case the facts were
undisputed, so there is nothing for us to review on that front.)
The court abused its discretion only if its conclusion that the
passenger in the trunk sustained bodily injury is “illogical,
implausible, or without support in inferences that may be
drawn from facts in the record.” United States v. Hinkson,
585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).
The district court did not abuse its discretion in
concluding that the standard for bodily injury had been met.
The passenger in the trunk sustained mild lacerations to his
fingers while trying to escape and a minor burn on his
forearm from contact with the overheated trunk compartment.
The inference that the passenger’s injuries were painful and
obvious is supported by facts in the record. The passenger
screamed that it was too hot inside the trunk and that he was
getting burned. Those facts support the inference that the
burn, at least, was painful. And the fact that both the burn
and the lacerations were noticed by the officers on the scene
supports the inference that the injuries were obvious.
Moreover, the fact that the officers offered the passenger
medical attention after treating the injuries as best they could
at the Border Patrol station supports the inference that the
injuries were of a type for which medical attention would
ordinarily be sought. That the passenger declined, for
whatever reason, to receive medical attention does not render
illogical or implausible the conclusion that the injuries were

Case: 14-50342, 04/05/2017, ID: 10383938, DktEntry: 63-1, Page 18 of 18

18

UNITED STATES V. GASCA-RUIZ

of a type for which one ordinarily would seek medical
treatment.
AFFIRMED.

HURWITZ, Circuit Judge, with whom FLETCHER, Circuit
Judge, joins, concurring in part and concurring in the result:
As the court today correctly notes, “[i]n most cases, the
standard of review does not affect the outcome.” That is
true here. The district court found that the injuries suffered
by the victim—“several lacerations . . . and a small
burn”—warranted imposition of the bodily injury
enhancement in U.S. Sentencing Guidelines Manual
§ 2L1.1(b)(7)(A). Whether reviewed de novo or with
deference, the district court’s determination was plainly
correct. See U.S.S.G. § 1B1.1 cmt. n.1(B) (defining bodily
injury as any significant injury). I would therefore leave for
another day, and in a case where it matters to the outcome,
the interesting issue of the appropriate standard of review.