UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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, and the relevant sentencing factors set forth in 18
U.S.C. § 3553(a) (2006), the district court sentenced Hicks
below the guideline range recommended in the PSR to forty
months’ imprisonment, three years of supervised release, and
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). Specifically, he asserts error in the
district court’s application of the aggravated assault
1
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).
2
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.
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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 at the United States
Correctional Facility-US-Lee, in Lee County Virginia. The
assault was captured on video and viewed by the judge, as
factfinder, at trial. Outside the view 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
3
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.
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substantial.” He applied ice for three days to reduce the
swelling. While he already was scheduled for the two days
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. Approximately
four months after the assault, Officer Doyle sought further
medical treatment for blurred vision, residual bruising, and
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. United States v. Green,
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) an intent to commit another
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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 the nature and duration of Officer Doyle’s
injuries, we find no clear error in the district court’s
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. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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