FILED
United States Court of Appeals
Tenth Circuit
March 3, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-8038
EMERY GARRET TINDALL,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 06-CR-303-WFD)
Daniel G. Blythe, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with him on the briefs), Office of the Federal Public Defender,
Cheyenne, Wyoming, for Defendant-Appellant.
Gregory A. Phillips, Assistant United States Attorney (John R. Green, Acting
United States Attorney, and Jason M. Conder, Assistant United States Attorney,
with him on the brief), Office of the United States Attorney, Lander, Wyoming,
for the Plaintiff-Appelle.
Before MURPHY, HOLLOWAY, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Emery Garret Tindall pleaded guilty to assault resulting in serious bodily
injury in violation of 18 U.S.C. §§ 113(a)(6) and 1153. The district court
enhanced Tindall’s sentence after concluding the injuries could have resulted in
the loss of the victim’s life. On appeal, he argues the district court improperly
relied on the Presentence Report (PSR) in making fact findings about the
seriousness of the victim’s injuries. As a result, Tindall claims the district court
lacked sufficient evidence to support a seven-level enhancement and then applied
the enhancement inconsistently from other courts in our circuit.
Finding no error in the district court’s sentence, we AFFIRM.
I. Background
Following Tindall’s plea of guilty to assault resulting in serious bodily
injury, the government prepared a PSR, which related the following:
Beginning in late afternoon on July 31, 2006, Tindall and his mother were
drinking with friends, including James WhiteAntelope, and a few others. Around
midnight, the group drove to WhiteAntelope’s parents’ home on an Indian
reservation in Wyoming to drop off WhiteAntelope. Arriving at his parents’
home, WhiteAntelope got out of the car and grabbed Tindall’s mother by her arm.
Tindall uttered an expletive and asked what WhiteAntelope was doing, to which
WhiteAntelope responded with a profanity. Tindall then got out of the car, swung
at WhiteAntelope’s head with his fist, missed, and started chasing him to the
house. Having caught up to WhiteAntelope, Tindall hit him in the back of the
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head. WhiteAntelope fell face first onto the steps leading up to his parents’
house, and Tindall jumped on top, hitting WhiteAntelope at least three more times
in the head. Tindall then got back into the car, and the group drove off.
Noticing WhiteAntelope’s heavy bleeding, his family took him to the
emergency room. The treating doctor “stated the arterial laceration to the back of
Mr. WhiteAntelope’s head posed a substantial risk of death at the time of the
injury because [of] the amount of blood loss,” R., Vol. 5 at 4, which the doctor
quantified as “half his blood,” id. at 6. Although immediate medical attention
mitigated the danger to WhiteAntelope, the doctor did state, “if unchecked[,
WhiteAntelope] would have bled to death.” Id. at 4.
The PSR calculated a base offense level of 14 and a seven-level
enhancement for causing life-threatening injury. After a downward adjustment
for acceptance of responsibility, the PSR arrived at a total offense level of 18.
Tindall, with no prior convictions, had a criminal history score of zero. A
criminal history score of zero (category I) and a total offense level of 18 yielded
an imprisonment range of 27–33 months under the United States Sentencing
Guidelines (USSG). Under the applicable statute, 18 U.S.C. § 113(a)(6), the
maximum term of imprisonment for Tindall’s offense is 10 years.
Tindall objected to a seven-level enhancement, arguing a five-level
enhancement for causing serious bodily injury would be more appropriate because
(1) Tindall did not plead to conduct involving a life-threatening injury, and (2)
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Tindall did not use a weapon and did not intend to cause a life-threatening injury.
The government, while agreeing with the PSR’s recommended seven-level
enhancement, stated it would not object to a lesser enhancement of five levels.
The district court, relying on the doctor’s assessment of the injury,
overruled Tindall’s objection and sentenced him to 31 months incarceration, in
the middle of the advisory guidelines range.
II. Discussion
Tindall raises three arguments that, in his view, require a remand to the
district court for resentencing: (1) the district court failed to comply with Federal
Rule of Criminal Procedure 32 in adopting the PSR’s life-threatening injury
recommendation, (2) the PSR did not contain sufficient evidence to support the
conclusion that WhiteAntelope had suffered a life-threatening injury, and (3) the
district courts in our circuit are inconsistent in their applications of the life-
threatening injury enhancement. Tindall argues these three errors led to the
district court’s application of the seven-level enhancement.
We disagree with each argument.
A. Interplay Between 18 U.S.C. § 113(a)(6) and the Guidelines
Before turning to Tindall’s arguments on appeal, it is useful to review the
relevant provisions of the statute under which Tindall pleaded guilty as well as
applicable Guidelines sections. We do this because the main thrust of Tindall’s
arguments betrays a misunderstanding of the district court’s task at sentencing.
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Tindall’s arguments rely heavily on the statutory language of the offense of
conviction. But the district court looks not only to the offense of conviction at
sentencing. Rather, it also looks to the Guidelines to determine the appropriate
advisory sentencing range. As the government correctly pointed out during
sentencing, Tindall’s “confusion comes from the use of the term ‘serious bodily
injury’ in both the statute under which Mr. Tindall pled guilty as well as the use
of the term in the . . . sentencing guidelines.” R., Vol. 3 at 8.
Statutory Language. Under 18 U.S.C. § 113(a)(6), 1 Tindall pleaded to a
charge of “[a]ssault resulting in serious bodily injury.” To define the term
“serious bodily injury,” § 113(b)(2) cross-references 18 U.S.C. § 1365, which
defines this term as bodily injury involving “(A) a substantial risk of death; (B)
extreme physical pain; (C) protracted and obvious disfigurement; or (D)
protracted loss or impairment of the function of a bodily member, organ, or
mental faculty.” Id. § 1365(h)(3). Focusing on subsections A and B, either a
substantial risk of death or extreme physical pain suffices to establish a violation
of § 113(a)(6).
1
Tindall was also indicted under 18 U.S.C. § 1153, which applies to
“[o]ffenses committed within Indian Country” and places such offenses within the
exclusive jurisdiction of the federal government. Id. § 1153(a) (“Any Indian who
commits against the person . . . of another Indian or other person any of the
following offenses, namely, . . . assault resulting in serious bodily injury . . .
within the Indian country, shall be subject to the same law and penalties as all
other persons committing any of the above offenses, within the exclusive
jurisdiction of the United States.”).
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Tindall pleaded guilty to assaulting WhiteAntelope and causing him serious
bodily injury, as the term is used in the statute. The plea agreement did not
specify whether Tindall’s assault resulted in a substantial risk of death or extreme
physical pain. But under the plea agreement, Tindall “ha[d] been advised of
§ 1B1.3 of the Sentencing Guidelines regarding use of relevant conduct in
establishing [his] sentence.” R., Vol. 2, Doc. 17 at 5. We thus look to the
Guidelines to determine how Tindall’s conduct affects his sentence.
Sentencing Guidelines. Assault under 18 U.S.C. § 113(a)(6) triggers the
application of USSG § 2A2.2, which establishes a base offense level of 14 and
allows various enhancements. Two possible enhancements are relevant to this
appeal. A five-level enhancement applies if the victim sustained “Serious Bodily
Injury.” Id. § 2A2.2(b)(3)(B). But if the victim suffered “Permanent or Life-
Threatening Bodily Injury,” a seven-level enhancement applies. Id.
§ 2A2.2(b)(3)(C).
Under the Guidelines, “‘Serious bodily injury’ means 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.” Id. § 1B1.1 cmt. n.1(L)
(emphasis added). “‘Permanent or life-threatening bodily injury’ means 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
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permanent; or an obvious disfigurement that is likely to be permanent.” Id. at
n.1(J) (emphasis added).
Under the Guidelines, then, Tindall’s offense—assault resulting in serious
bodily injury—calls for different sentencing calculations depending on the type of
harm WhiteAntelope suffered. In other words, although 18 U.S.C. § 113(a)(6)
lumps both a substantial risk of death and extreme physical pain into the “serious
bodily injury” category, the Guidelines call for different enhancements based on
the nature of the injury. That Tindall pleaded to “serious bodily injury” under the
statute does not mean he should automatically receive only a five-level
enhancement under the Guidelines. Both a five- and a seven-level enhancement
are consistent with a plea to assault resulting in serious bodily injury under
§ 113(a)(6), depending on the nature of the victim’s injuries.
B. Arguments on Appeal
With this understanding of the Guidelines in mind, we turn to Tindall’s
three arguments for remand.
1. Necessity of Rule 32 Findings
Tindall’s first argument challenges the district court’s compliance with
Rule 32 requirements. See Fed. R. Crim. P. 32. Rule 32(i)(3)(A) allows the
sentencing court to “accept any undisputed portion of the presentence report as a
finding of fact.” But the court “must—for any disputed portion of the presentence
report or other controverted matter—rule on the dispute or determine that a ruling
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is unnecessary either because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Id. 32(i)(3)(B). “We review de
novo the district court’s compliance with the Federal Rules of Criminal
Procedure.” United States v. Cereceres-Zavala, 499 F.3d 1211, 1214 (10th Cir.
2007) (citing United States v. Kravchuk, 335 F.3d 1147, 1160 (10th Cir. 2003)).
We recently stated “unequivocally that . . . ‘to invoke the district court’s
Rule 32 fact-finding obligation, the defendant is required to make specific
allegations of factual inaccuracy.’” Id. at 1215–16 (quoting United States v.
Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006)). This means “a
defendant’s attempt to controvert legal determinations—or even ultimate factual
conclusions—drawn in a PSR ‘does not implicate’ the district court’s fact-finding
obligations under Rule 32.” Id. at 1214 (quoting United States v. Tovar, 27 F.3d
497, 500 (10th Cir. 1994)). “Arguments that challenge the district court’s
application of the guidelines to the facts and not the facts themselves do not
trigger any obligation on the part of the district court to make specific findings.”
Id. (quotation and alteration omitted).
Our review of Tindall’s written objections filed before sentencing and of
the sentencing transcript convinces us Tindall failed to make a specific allegation
of factual inaccuracy that would trigger the district court’s Rule 32 obligations.
Tindall made three objections to the recommended enhancement: (1) the
emergency room doctor exaggerated when he said WhiteAntelope had lost “half
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his blood,” (2) Tindall did not admit or plead guilty to conduct involving a life-
threatening injury, and (3) Tindall did not use a weapon and did not intend to
cause a life-threatening injury. The last two objections challenge the district
court’s application of the Guidelines and, as such, do not require a Rule 32 ruling.
Tindall’s only factual objection addressed the “half his blood” statement.
The district court did not, however, rely on the doctor’s alleged exaggeration in
concluding WhiteAntelope had suffered a life-threatening injury. Instead, the
court relied on the doctor’s statement that “had . . . the bleeding not been stopped,
the victim would have died. That meets the definition of a ‘life-threatening
injury.’” R., Vol. 3 at 13. The district court continued, “Counsel may quibble
with the doctor’s estimate of half his blood was lost to this wound, but there’s no
quibbling with the doctor’s opinion that had the blood—the bleeding not been
stopped, the victim would have died.” Id. Under Rule 32(i)(3)(A), the district
court was well within its discretion to accept an undisputed portion of the PSR
that noted the doctor’s opinion of a substantial risk of death.
The district court, moreover, gave Tindall several opportunities to
specifically object to the doctor’s opinion regarding the risk of death. The court
asked, “you take exception to the language that . . . the victim had lost, quote,
half his blood, close quote; but do you take exception to the findings of the
treating physician that death could have resulted had the bleeding not been
stopped?” Id. at 4. Instead of specifically disputing the accuracy of the doctor’s
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opinion, Tindall’s counsel said, “I think . . . that is close, I suppose, to a
substantial risk of death which is the definition of ‘serious bodily injury’ for
which he was charged. . . . [I]t wasn’t charged as ‘life-threatening.’” Id. Thus,
not only did Tindall fail to specifically object, but he once again conflated the
“serious bodily injury” term in the statute with the Guidelines.
Later in the proceedings, Tindall was given another opportunity to object.
The district court observed, “By divine providence [Tindall] isn’t here charged
with murder.” Id. at 7. Tindall’s counsel responded, “I don’t know that that was
. . . life-threatening. I think it was—but you’re right. A substantial risk of death
is serious bodily injury, and I suppose losing that much blood is a substantial risk
of . . . death, and indeed by providence he’s not, and I think he knows that.” Id.
Here again, a substantial risk of death, while termed “serious bodily injury” under
the statute, represents a life-threatening injury under the Guidelines, warranting a
seven-level enhancement. But in addition, this exchange illustrates counsel
acknowledging Tindall’s attack caused a substantial risk of death. Instead of a
specific allegation of factual inaccuracy, we have an undisputed statement in the
PSR.
As a result, because Tindall’s objections challenged only the district court’s
application of the Guidelines to an undisputed portion of the PSR (the doctor’s
opinion that a substantial risk of death existed), the district court did not run afoul
of the Rule 32 requirements.
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2. Sufficiency of the Evidence
Tindall’s next argument challenges the procedural reasonableness of his
sentence. He claims the district court did not have enough evidence to conclude
WhiteAntelope had suffered a life-threatening injury. See, e.g., United States v.
Hernandez, 509 F.3d 1290, 1298 (10th Cir. 2007) (analyzing sufficiency of the
evidence challenge as a question of procedural reasonableness). As the Supreme
Court has directed us in reviewing challenges to procedural reasonableness, we
must ensure
the district court committed no significant procedural error, such as
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—including
an explanation for any deviation from the Guidelines range.
Gall v. United States, 128 S. Ct. 586, 597 (2007) (emphasis added). We defer to
the district court’s application of the Guidelines to the facts “under an abuse-of-
discretion standard.” Id.
“[T]he abuse of discretion standard consists of component parts, affording
greater deference to findings of fact (clearly erroneous) than to conclusions of law
(erroneous).” United States v. McComb, No. 07-5003, 2007 WL 4393142, at *3
n.4 (10th Cir. Dec. 18, 2007). We have previously explained the government
must prove by a preponderance of the evidence “any findings necessary to support
a sentence enhancement.” United States v. Albers, 93 F.3d 1469, 1487 (10th Cir.
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1996); see also United States v. Campbell, 372 F.3d 1179, 1183 (10th Cir. 2004)
(“Under well-established Tenth Circuit precedent, the government has the burden
of proving sentence enhancements . . . .” (quotation omitted)). 2
Normally, we would review Tindall’s challenge to the district court’s
factual findings for clear error. In this case, however, Tindall failed to raise the
sufficiency of the evidence argument at sentencing, triggering our plain error
review. See United States v. Traxler, 477 F.3d 1243, 1250 (10th Cir. 2007).
“Plain error occurs when there is (i) error, (ii) that is plain, which (iii) affects the
defendant’s substantial rights, and which (iv) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Ruiz-
2
Tindall argues the district court should have applied the beyond a
reasonable doubt standard to facts necessary to support a seven-level
enhancement for causing a life-threatening injury. The argument is without merit.
We have repeatedly explained, “[b]ecause the post-Booker Guidelines are
discretionary, a district court may continue to find [sentencing] facts . . . by a
preponderance of the evidence.” United States v. Hall, 473 F.3d 1295, 1312 (10th
Cir. 2007) (citing United States v. Rodriguez-Felix, 450 F.3d 1117, 1130–31 (10th
Cir. 2006)). The Supreme Court’s recent decision in Cunningham v. California,
127 S. Ct. 856 (2007), on which Tindall relies, does not change our post-Booker
jurisprudence. See United States v. Trujillo, 247 F. App’x 139, 144 (10th Cir.
2007) (“Cunningham does nothing more than reaffirm the holding of Booker as it
relates to a mandatory sentencing scheme. It does nothing to undermine this
court’s post-Booker jurisprudence or to preclude a sentencing court from
engaging in judicial factfinding under the now-advisory Guidelines.”). Tindall
seeks to make Cunningham applicable by arguing that to conclude he caused a
life-threatening injury would require going beyond his plea, which only addressed
serious bodily injury under 18 U.S.C. § 113(a)(6). The argument yet again
misunderstands the interplay between the charged statute and the Guidelines.
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Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). Because the district court
committed no error, we need not go beyond the first prong.
To conclude WhiteAntelope had suffered a life-threatening injury, the
district court relied on the following undisputed statement by the emergency room
doctor: “the arterial laceration to the back of Mr. WhiteAntelope’s head posed a
substantial risk of death at the time of injury because [of] the amount of blood
loss.” R., Vol. 5 at 4. Under the Guidelines, a substantial risk of death
constitutes life-threatening injury. USSG § 1B1.1 cmt. n.1(J). An undisputed
statement by the treating doctor, in the absence of contrary evidence, can—and in
this case does—amount to a preponderance of the evidence. Cf., e.g., United
States v. Smith, 833 F.2d 213, 218 (10th Cir. 1987) (concluding “the undisputed
facts of the present case would be sufficient, without more, to prove by a
preponderance of the evidence that Smith conspired with Grace to unlawfully
possess the computers”).
Tindall argues the doctor’s statement is insufficient for three reasons.
First, he points out the risk of death “was mitigated once WhiteAntelope arrived
at the hospital because the doctors were able to control” the bleeding. R., Vol. 5
at 4. On Tindall’s reading of the Guidelines, a timely-treated injury cannot be
life-threatening. But the very term “life-threatening” belies this argument. When
we say “life-threatening,” we do not mean “actually resulting in loss of life.”
Rather, the term “threaten” denotes only “the probable visitation of some evil or
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affliction.” Webster’s Third New International Dictionary 2382 (2002). That the
injury is ultimately cured does not answer whether the injury was “life-
threatening” when inflicted.
Second, Tindall argues the doctor’s statement is insufficient because the
doctor himself did not label the injury “life-threatening.” But the labeling is the
job of the district court, not the doctor. The district court, presented with facts,
determines whether facts support a legal conclusion under the Guidelines. In this
case, the doctor’s statement (“a substantial risk of death”) supported the district
court’s legal conclusion that a seven-level enhancement for causing a life-
threatening injury should apply.
Finally, Tindall contends the finding of “a substantial risk of death”
amounts only to “serious bodily injury” as the term is defined in 18 U.S.C.
§ 113(a)(6). In this argument, Tindall yet again conflates the charged statute and
the Guidelines. What amounts to “serious bodily injury” under the statute can
warrant either a five- or seven-level enhancement. In Tindall’s case, the
preponderance of the evidence supported the district court’s application of a
seven-level enhancement for assault resulting in a life-threatening injury.
In sum, the district court committed no error, plain or otherwise, in
concluding the facts in the record established by a preponderance of the evidence
that WhiteAntelope had suffered a life-threatening injury, warranting a seven-
level sentencing enhancement.
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3. Sentence Disparity
Tindall’s final argument points to the alleged inconsistencies in how
district courts in our circuit have applied five-level (serious bodily injury) and
seven-level (life-threatening bodily injury) enhancements. As an initial matter,
Tindall failed to raise this argument in the district court, which requires that we
review it only for plain error. Moreover, it is not clear from the briefs whether
Tindall contends his sentence is procedurally or substantively unreasonable
because of the alleged inconsistencies with other sentencing decisions. Whatever
the approach, Tindall’s argument fails either as a procedural or substantive
challenge.
Procedural Reasonableness. In sentencing, the district court has a duty
under 18 U.S.C. § 3553(c) to show it has considered the sentencing factors set
forth in § 3553(a), one of which is “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct,” id. § 3553(a)(6). Rita v. United States, 127 S. Ct. 2456, 2468
(2007) (“The sentencing judge should set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.”). But the Court also made
clear that a district judge is not required to give an exhaustive list of reasons. Id.
(“The law leaves much, in this respect, to the judge’s own professional
judgment.”).
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In sentencing Tindall within the advisory guidelines range, the district
court explained, “the sentence I am about to impose is the most reasonable
sentence upon consideration of all factors enumerated in 18 United States Code
3553.” R., Vol. 3 at 25. A one-sentence explanation accompanying a within-
guidelines sentence—in the absence of the need to address specific § 3553(a)
arguments brought to the district court’s attention—satisfies the district court’s
duty to impose a procedurally reasonable sentence. Ruiz-Terrazas, 477 F.3d at
1199 (holding “Section 3553(c) requires the court to provide only a general
statement” in explaining the imposition of a sentence falling within the
Guidelines); see also Cereceres-Zavala, 499 F.3d at 1217 (finding “the Supreme
Court’s latest pronouncement in Rita v. United States on the requirements of
§ 3553(c) in accordance” with Ruiz-Terrazas).
Thus, the district court committed no procedural error in explaining
Tindall’s sentence.
Substantive Reasonableness. We review the district court’s sentence for
substantive reasonableness in light of the § 3553(a) sentencing factors. United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). The district court has
significant discretion in sentencing, and our review for reasonableness, regardless
of whether the sentence falls inside or outside the advisory Guidelines, is a
review for abuse of discretion. Gall, 128 S. Ct. at 597; Rita, 127 S. Ct. at 2456.
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In this case, the district court sentenced Tindall within the guidelines range
and we have already concluded the court did not err in calculating the range itself.
The binding precedent in our court is that “a sentence that is properly calculated
under the Guidelines is entitled to a rebuttable presumption of reasonableness.”
Kristl, 437 F.3d at 1054; see also Gall, 128 S. Ct. at 597 (explaining that the
presumption is permissible but not required); Rita, 127 S. Ct. at 2456 (same).
Nevertheless, the presumption of reasonableness “is a deferential standard that
either the defendant or the government may rebut by demonstrating that the
sentence is unreasonable when viewed against the other factors delineated in
§ 3553(a).” Kristl, 437 F.3d at 1054.
Tindall cannot overcome the presumptive reasonableness of his sentence
merely by pointing out that some alleged inconsistencies exist in how defendants
are sentenced in our circuit. Section 3553(a)(6) specifically speaks in terms of
“the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.” Id. (emphasis
added). And we have held that § 3553(a)(6) “requires a judge to take into
account only disparities nationwide among defendants with similar records and
Guideline[s] calculations.” United States v. Verdin-Garcia, No. 06-3354, 2008
WL 435495, at *12 (10th Cir. Feb. 19, 2008). Tindall failed to explain how his
circumstances—criminal history as well as conduct—are similar to those with
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which he seeks to draw a comparison. We thus cannot meaningfully decide
whether the alleged disparities are truly unwarranted, as § 3553(a)(6) requires.
Moreover, considering just one case relied on by Tindall illustrates his
attempt to compare the incomparable. In United States v. Alexander, 447 F.3d
1290 (10th Cir. 2006), we found sufficient evidence of serious bodily injury to
support a conviction where the victim arrived at the hospital in serious condition,
experienced severe pain, lost substantial amount of blood, suffered multiple
severe lacerations, experienced dizziness, and required further hospital stay to
monitor possible brain swelling. Id. at 1299–300. Tindall argues the finding of
serious bodily injury in Alexander is inconsistent with the finding of a life-
threatening injury in his case.
In the first place, we do not know whether the facts in Alexander also
indicated a substantial risk of death existed. The doctor’s undisputed statement in
this case, however, discloses precisely that, making the circumstances in the two
cases hardly comparable. But most importantly, Alexander did not involve an
application of the Guidelines, only the statutory term “serious bodily injury”
under 18 U.S.C. § 113(a)(6). See id. As we have already explained, the statutory
term is fully consistent with either a five-level (serious bodily injury) or seven-
level (life-threatening bodily injury) enhancement under the Guidelines. 3
3
The other cases cited by Tindall are similarly unhelpful. The examples
do not show whether the government sought or the district court considered the
(continued...)
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We accordingly perceive no error, plain or otherwise, that would allow us
to conclude the district court imposed a substantively unreasonable sentence.
III. Conclusion
For the foregoing reasons, we AFFIRM Tindall’s sentence.
3
(...continued)
life-threatening enhancement at issue here.
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