United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 2, 2006
Charles R. Fulbruge III
Clerk
No. 05-40233
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SON VAN LE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-472-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Son Van Le appeals from one count of assault with a dangerous
weapon within maritime and territorial jurisdiction in violation of
18 U.S.C. §§ 7(1), 113(a)(3).
Le argues that the district court committed clear error by
increasing his offense level by five based upon a “serious bodily
injury” inflicted on the victim, Hieu Thanh Nguyen. We review the
district court’s § 2A2.2(b)(3)(B) five-level increase for clear
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40233
-2-
error. See United States v. Villanueva, 408 F.3d 193, 203 & n.9
(5th Cir.), cert. denied, 126 S. Ct. 268 (2005).
Section 2A2.2(b)(3)(B) requires a five-level increase to a
base offense level if the victim of the offense sustained serious
bodily injury. “‘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.” § 1B1.1 cmt. n.1(L); see § 2A2.2 cmt. n.1.
The record reflects that Nguyen required medical treatment for
the stab wound inflicted by Le. See § 1B1.1 cmt. n.1(L); see
§ 2A2.2 cmt. n.1. Testimony from a treating physician revealed
that two layers of sutures were necessary and a Coast Guard medical
technician testified that there was a great deal of blood down
Nguyen’s back and front side. The district court noted that Nguyen
informed the probation officer that the stab wound was the most
extreme pain he had ever felt. See United States v. Puig-Infante,
19 F.3d 929, 943 (5th Cir. 1994). Accordingly, from the record as
a whole, the district court did not commit clear error in applying
the five-level increase. See Villanueva, 408 F.3d at 203 & n.9.
Le argues that the district court erred in applying a
four-level increase for the use of a dangerous weapon. He contends
that the element of a dangerous weapon was already accounted for in
the statute of conviction, therefore the district court did not
need to count it again as part of his offense level. We review
No. 05-40233
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this issue for plain error as Le raises it for the first time on
appeal. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005).
Le cannot demonstrate plain error as the relevant guideline
does not prohibit double-counting. See United States v. Box, 50
F.3d 345, 359 (5th Cir. 1995); § 2A2.2.
Le finally argues that the district court’s five-level
increase for “serious bodily injury” constituted a departure from
the guidelines. Le further argues that the court’s departure was
compounded by the court’s failure to articulate its reasons and its
reliance on outside factors such as Le’s criminal history, racial
motivations, and prior encounters with Nguyen, to increase Le’s
sentence.
The district court’s sentence was reasonable as the record
reflects that the district court acknowledged that the guidelines
were advisory, considered the 18 U.S.C. § 3553 factors, and
sentenced Le within the guideline range. See Mares, 402 F.3d at
519; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
AFFIRMED.