[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 17, 2006
No. 05-12870
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00196-CR-ORL-31KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALVAREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 17, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Carlos Alvarez appeals his conviction and 264-month sentence for
distributing heroin resulting in serious bodily injury, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C). On appeal, Alvarez argues that there was conflict between
the statutory definition and the guideline definition of “serious bodily injury,” and,
as a result, he mistakenly pled guilty to a crime that he did not commit. He also
argues that his sentence was enhanced improperly as a result of the conflicting
definitions. His argument assumes that the Sentencing Guidelines definition of
“serious bodily injury,” and not the statutory definition, controls this case.
Although Alvarez acknowledges that Ashley Loucks, the woman to whom he sold
the heroin and who subsequently suffered an overdose, “probably would have
died,” had she not been rescued by paramedics, he analyzes a litany of cases from
other circuits, arguing that the facts here did not amount to “serious bodily injury,”
as Loucks did not suffer a “chronic or long term result.” He contends that the
injury suffered by Loucks was not sufficient to meet the standard set forth in
U.S.S.G. § 1B1.1, comment. (n.1(L)), and, additionally, whether or not there was a
“substantial risk of death” was a fact that had to be found by a jury. As a result of
the conflict between the statute and the guidelines, Alvarez argues, he did not
understand his plea, and, therefore, the district court erred when it refused to allow
him to withdraw his plea.
We “review the denial of a request to withdraw a guilty plea for abuse of
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discretion, whereas . . . the application of the Sentencing Guidelines are reviewed
de novo.” United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003). A
decision is not an abuse of discretion unless it is arbitrary or unreasonable. United
States v. Weaver, 275 F.3d 1320, 1328 n.8 (11th Cir. 2001) (citations and
quotations omitted). After the district court has accepted the plea and before
sentencing, a defendant may withdraw a guilty plea if “the defendant can show a
fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).
In determining whether the defendant has met his burden for a withdrawal, a
district court “may consider the totality of the circumstances surrounding the plea,”
including “whether the plea was knowing and voluntary.” United States v.
Buckles, 843 F.2d 469, 471-72 (11th Cir. 1988).
Section 841 provides, in relevant part:
. . . [A]ny person who violates . . . this section shall be sentenced as
follows: In the case of [heroin,] . . . if death or serious bodily injury
results from the use of such substance[, such person] shall be
sentenced to a term of imprisonment of not less than twenty years or
more than life.
21 U.S.C. § 841(b)(1)(C) (emphasis added). “Serious bodily injury,” as used in the
statute, is defined in § 802(25) as “bodily injury which involves . . . a substantial
risk of death” (the “statutory definition”). 21 U.S.C. § 802(25).
The applicable guideline for violations of § 841(b)(1)(C) is U.S.S.G.
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§ 2D1.1(a)(2), which provides for a base offense level of 38 if “serious bodily
injury resulted from the use of the [heroin].” U.S.S.G. § 2D1.1(a)(2). The
application notes for § 2D1.1 do not specify where the definition of “serious bodily
injury,” as used therein, can be found. See generally U.S.S.G. § 2D1.1, comment.
The application notes to § 2D1.1 do, however, state that the guidelines use “the
sentences provided in, and equivalences derived from, the statute (21 U.S.C.
§ 841(b)(1)), as the primary basis for the guideline sentences.” U.S.S.G. § 2D1.1,
comment. (n.10). The general definition for “serious bodily injury” put forth in the
guidelines is “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” (the
“general guideline definition”). U.S.S.G. § 1B1.1, comment. (n.1(L)). The
guidelines note that the definitions set forth in § 1B1.1, comment. (n.1) are “of
terms that are used frequently in the guidelines and are of general applicability
(except to the extent expressly modified in respect to a particular guideline or
policy statement).” U.S.S.G. § 1B1.1, comment. (n.1).
Although no court expressly has held that a statutory definition should be
given preference over a general guideline definition, the Supreme Court has stated
that the guidelines “must bow to the specific directives of Congress.” United
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States v. LaBonte, 520 U.S. 751, 757, 117 S. Ct. 1673, 1677, 137 L. Ed. 2d 1001
(1997). The Supreme Court also has held that “commentary in the Guidelines
Manual that interprets or explains a guideline is authoritative unless it violates the
Constitution or a federal statute.” Stinson v. United States, 508 U.S. 36, 38, 113 S.
Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993).
Because the record demonstrates that Alvarez understood the facts to which
he pled guilty, and those facts constituted “serious bodily injury” under his
conviction statute and under the applicable sentencing guideline, the district court
did not abuse its discretion in denying Alvarez’s motion to withdraw his plea or err
in determining his sentence. Accordingly, we affirm Alvarez’s conviction and
sentence.
AFFIRMED.
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