NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10105
Plaintiff-Appellee, D.C. No. 4:17-cr-01471-JAS-LAB-1
v.
MEMORANDUM*
WILMER MARTIN FLORES,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona, Tucson
James A. Soto, District Judge, Presiding
Submitted April 16, 2021**
San Francisco, California
Before: R. NELSON and HUNSAKER, Circuit Judges, and JACK***, District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Janis G. Jack, Senior United States District Judge of the
United States District Court for the Southern District of Texas, sitting by
designation.
Wilmer Flores appeals his jury conviction and sentence for assaulting a
federal officer, C.A., in violation of 18 U.S.C. §§ 111(a) and (b). We affirm.
Even though Flores failed to object to the magistrate court’s report and
recommendation denying his motion to suppress, we review de novo the legal
conclusions that Flores was not “in custody” for purposes of Miranda and that his
statements were voluntary. See Miranda v. Anchondo, 684 F.3d 844, 848–49 (9th
Cir. 2012); United States v. Brobst, 558 F.3d 982, 995 (9th Cir. 2009); United
States v. Heller, 551 F.3d 1108, 1112 (9th Cir. 2009). We review the district
court’s application of the Sentencing Guidelines to the facts for an abuse of
discretion. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en
banc).
1. The district court did not err in denying Flores’s motion to suppress
statements made during his disciplinary hearing. No Miranda warning was due
because the circumstances of the disciplinary hearing—where Flores was free to
leave upon request and was restrained consistent with standard protocol for an
inmate in his housing unit—show that Flores was not “in custody.” See Howes v.
Fields, 565 U.S. 499, 512 (2012); United States v. Hayden, 260 F.3d 1062, 1066
(9th Cir. 2001). Additionally, Flores’s statements were not made involuntarily
because Flores was sufficiently informed of his right not to speak prior to making
his statements. See Oregon v. Elstad, 470 U.S. 298, 318 (1985). And the
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disciplinary hearing officer’s ability to draw adverse inferences from Flores’s
silence was not itself coercive. See Baxter v. Palmigiano, 425 U.S. 308, 318–20
(1976).
2. The district court did not err in calculating Flores’s base offense level and
applying five-level and six-level sentence enhancements. First, the district court
did not abuse its discretion in determining that Flores’s conduct constituted
aggravated assault under U.S.S.G. § 2A2.2 involving “serious bodily injury”
because sufficient evidence supported that Flores caused the dislocation of C.A.’s
neurostimulator and that Flores’s conduct caused C.A. “extreme physical pain.”
See U.S.S.G. § 1B1.1 & cmt. n.1(M); Gasca-Ruiz, 852 F.3d at 1170. Evidence
showing serious bodily injury elevated Flores’s conduct to the level of aggravated
assault, justifying the court’s calculation of a base offense level of 14. U.S.S.G. §
2A2.2. Because the assault involved serious bodily injury that required medical
intervention involving hospitalization and surgery, the district court did not abuse
its discretion in applying a five-level enhancement to the base offense level.
U.S.S.G. § 2A2.2(b)(3)(B).
The district court also did not abuse its discretion in applying the six-level
enhancement because Flores created a “substantial risk of serious bodily injury”
when he assaulted C.A. U.S.S.G. § 3A1.2(c). Commentary provides that
“‘[s]ubstantial risk of serious bodily injury’ includes any more serious injury that
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was risked, as well as actual serious bodily injury (or more serious injury) if it
occurs.” U.S.S.G. § 3A1.2 cmt. n.4(B). As explained above, evidence supported
that C.A. suffered “serious bodily injury” from Flores’s actions. Thus, because
Flores does not dispute the circumstantial factors required by U.S.S.G. §
3A1.2(c)—namely, that C.A. was a prison official or that Flores was in prison
custody at the time of the offense—the district court did not abuse its discretion in
applying this enhancement.
AFFIRMED.
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