United States v. Brown

                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                       PUBLISH
                                                                        DEC 22 1999
                       UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                             Clerk
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                   No. 98-3343

 CARL LANEILL BROWN,

           Defendant - Appellant.



 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                   No. 98-3347

 LENARD CHAUNCY DIXON,

           Defendant - Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF KANSAS
                 (D.C. Nos. 98-40034-01 and 98-CR-40034-02)


No. 98-3343 was submitted on the briefs: *

James P. Moran, Assistant Federal Public Defender and Michael G. Katz, Federal

       *
        After examining the briefs and appellate record in No. 98-3343, this panel
has determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G).
The cause therefore is ordered submitted without oral argument.
Public Defender, Denver, Colorado, for the Defendant-Appellant Brown.

Gregory G. Hough, Assistant United States Attorney (Jackie N. Williams, United
States Attorney, with him on the briefs), Topeka, Kansas, for the Plaintiff-
Appellee.

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal
Public Defender, with him on the briefs), Wichita, Kansas, for the Defendant-
Appellant Dixon.


Before KELLY, McWILLIAMS, and HENRY, Circuit Judges.


KELLY, Circuit Judge.


      Defendant-Appellant Carl Laneill Brown and Defendant-Appellant Lenard

Chauncy Dixon appeal from their convictions arising from an incident where the

nineteen-year-old male victim was robbed and his car was taken. Mr. Brown and

Mr. Dixon were convicted of conspiracy to commit a carjacking, 18 U.S.C. §§ 2,

371, 2119 (count 1); carjacking, 18 U.S.C. §§ 2, 2119 (count 2); and use of a

firearm during and in relation to a crime of violence, 18 U.S.C. §§ 2, 924(c)(1)

(count 3). Mr. Brown also was convicted of carrying a firearm during and in

relation to a crime of violence, 18 U.S.C. §§ 2, 924(c)(1) (count 4), and

possession of a firearm by a felon, 18 U.S.C. §§ 922(g), 924(a)(2) (count 5). Mr.

Brown and Mr. Dixon were sentenced to imprisonment of 410 and 123 months

respectively. They also were sentenced to three years supervised release, and

ordered to pay restitution of $4,948.

                                        -2-
      On appeal, Mr. Brown argues that (1) his conduct does not constitute a

violation of the carjacking statute, a sufficiency of the evidence challenge; and

(2) his conviction on count 4 should be vacated because conspiracy under § 371 is

not a crime of violence as defined by § 924(c)(3). Mr. Dixon challenges (3) the

victim’s in-court identification of him as unreliable and violative of due process;

(4) the government’s use of gang affiliation evidence as violative of Fed. R. Evid.

404(b); (5) the sufficiency of the evidence, contending that his conduct does not

constitute a violation of the carjacking statute; (6) the carjacking statute as

lacking a substantial interstate nexus as required by the Commerce Clause; (7) the

district court’s denial of his motion to dismiss count 3 as violative of double

jeopardy; (8) the government’s promises to cooperating witnesses as contrary to

the federal anti-gratuity statute; and (9) the district court’s application of the

Sentencing Guidelines, specifically enhancement for bodily injury under USSG

§ 2B3.1(b)(3)(A). The court granted Mr. Brown’s motion to join Mr. Dixon’s

brief. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)

and we affirm.



                                      Background

      Mr. Dixon, Mr. Brown and two friends, Kyree McClelland and Alfred

Reed, borrowed a 1992 white Chrysler New Yorker and traveled from Topeka,


                                          -3-
Kansas to Lawrence, Kansas to drop Mr. Reed off at a nightclub. Mr. Brown had

two guns with him, a .357 and .38, and supplied the latter to Mr. McClelland.    See

10 R. 366. Before arriving in Lawrence, Mr. Brown, Mr. Dixon and Mr.

McClelland (the trio) discussed robbing someone.       See 10 R. 369. After dropping

Mr. Reed off, the trio observed the victim approaching his 1997 black Ford

Explorer in the parking lot.    See id. at 371-72. The trio waved to the victim and

the victim waved back.      See 8 R. 44-46; 9 R. 158-62. According to Mr.

McClelland,   1
                  Mr. Brown said that the victim “looked like a good person to get.”

10 R. 372. Mr. McClelland understood this to mean robbery, including getting

the victim’s Explorer.     See id.

       As the victim and his passengers drove out of the nightclub parking lot

shortly after midnight, the trio followed them to a residence. Because the

residence driveway was full, the victim pulled his vehicle into an adjacent

driveway. The victim got out of his vehicle and said goodbye to his passengers.

The victim left the motor running and his headlights on. 10 R. 385.

       When the victim returned, the trio’s vehicle was parked directly behind

him. Mr. Dixon, the driver of the trio’s vehicle, summoned the victim, and a brief

conversation ensued. Mr. Brown, a passenger, opened the glove box of the trio’s



       1
             Mr. McClelland is an unindicted co-conspirator who pled guilty to a
state charge of robbery and testified against the Defendants.

                                           -4-
vehicle and supplied the victim with a pen and paper to write down a telephone

number. The victim testified that he was responsive to Mr. Dixon’s inquiries so

he could be on his way. Before the victim could get into his vehicle, however,

Mr. Brown alighted from the trio’s vehicle, cut him off, pointed a gun at him and

demanded his money and wallet. The victim complied, and Mr. Brown then

demanded his jewelry. Mr. McClelland testified on direct examination that Mr.

Dixon then told Mr. McClelland to get into the victim’s vehicle, 10 R. 383,

(although on cross examination, Mr. McClelland admitted to a previous statement

that it was Mr. Brown that told him to get into the vehicle, 11 R. 649). As the

victim removed his jewelry, Mr. Dixon began hitting him on the right side of his

face. According to the victim, Mr. Brown told Mr. Dixon to “chill out” and “take

it easy, he’s doing it.” 8 R. 57.

      Mr. Brown, with his gun pointed at the victim, ordered the victim to run

down the street. The victim refused, testifying that he was certain he would be

shot in the back. 8 R. 58-59. The victim was hit several more times. Then, one

of the victim’s passengers who had been dropped off at the residence apparently

heard the commotion and yelled “What’s going on?” 8 R. 59. This apparently

distracted Mr. Brown and Mr. Dixon and allowed the victim time to run inside the

residence and escape. Mr. McClelland drove the victim’s vehicle away, following

the trio’s vehicle. Police quickly apprehended the trio.


                                        -5-
                                       Discussion

1 & 5.         Sufficiency of the Evidence to Constitute Carjacking

         The Defendants assert that there was insufficient evidence to convict them

of carjacking in violation of 18 U.S.C. § 2119. The statute states:

               Whoever, with the intent to cause death or serious
               bodily harm takes a motor vehicle that has been
               transported, shipped, or received in interstate or foreign
               commerce from the person or presence of another by
               force and violence or by intimidation, or attempts to do
               so, shall–
               (1) be fined under this title or imprisoned . . .


Defendants claim that (1) since the victim already was inside the house when they

drove off, his car was not taken from his “person or presence;” (2) force was not

used during the taking of the vehicle but only during the robbery; and (3) the

intent to cause death or serious bodily harm was not tied to the act of taking the

vehicle.

         Although we review a challenge to the sufficiency of the evidence de novo,

we do so while viewing “the evidence and the reasonable inferences to be drawn

therefrom in the light most favorable to the government.”    United States v. Haslip ,

160 F.3d 649, 653 (10th Cir. 1998),    cert. denied , 119 S. Ct. 1346 (1999). We

will reverse “‘only if no rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’”      Id. at 652 (citation omitted).

         a.    Presence

                                          -6-
       A car is stolen from the “presence” of an individual if “the victim [is]

sufficiently near to the vehicle for it to be within reach, inspection, or control

and, absent threat or intimidation, to be able to maintain control of it.”       United

States v. Kimble , 178 F.3d 1163, 1168 (11th Cir. 1999),        petitions for cert. filed ,

Nos. 99-6293, 99-6309 (Sept. 20, 1999). Having left the motor running and the

lights on, the victim stepped away from his vehicle only briefly before he was

accosted. The vehicle was plainly within his reach, inspection and control.

Absent the threats and intimidation of Mr. Brown and Mr. Dixon, the victim

would have returned to his vehicle and driven away. Indeed, once the victim

fled, Mr. McClelland merely put the car in gear and drove it away. 10 R. 385.

That the victim was in the residence, having fled to protect his life, when the

vehicle was actually driven away by Mr. McClelland is of no moment.

Regardless, we follow the Third and Eleventh Circuits in holding that the

presence requirement of 18 U.S.C. § 2119 does not require “that the property be

within easy touch” so long as “the car was close enough for the victim[] to have

prevented its taking had fear of violence not caused [him] to hesitate.”         Kimble ,

178 F.3d at 1167, 1168; United States v. Lake , 150 F.3d 269, 272 (3d Cir. 1998),

cert. denied , 119 S. Ct. 839 (1999).

       b.     Force and Violence or Intimidation

       Ample evidence exists that Mr. Brown and Mr. Dixon used force, violence


                                             -7-
and intimidation to take the victim’s vehicle. Mr. Brown robbed him at gunpoint;

Mr. Dixon hit him while he was complying with the demand for jewelry. The

victim was hit again when he refused to run down the street. The victim escaped

into a residence only when one of his friends called out to him, at which point

Defendants drove off with the vehicle. To attempt to separate the violence used

in the robbery from the taking of the vehicle is disingenuous. Had Defendants

killed the victim during the course of the robbery and then stolen his vehicle,

they could not argue that the violence attached solely to the first act of robbery

because of the victim’s demise. A strong nexus exists between the use of force

and the taking of the vehicle–the victim was prevented from returning to his

vehicle due to force, violence and intimidation; his subsequent flight into the

residence merely allowed Defendants to complete the plan.

      c.     Intent

      The Supreme Court recently addressed the necessary intent for a carjacking

conviction under § 2119.

             The carjacking statute essentially is aimed at providing
             a federal penalty for a particular type of robbery. The
             statute's mens rea component thus modifies the act of
             "tak[ing]" the motor vehicle. It directs the factfinder's
             attention to the defendant's state of mind at the precise
             moment he demanded or took control over the car "by
             force and violence or by intimidation." If the defendant
             has the proscribed state of mind at that moment, the
             statute's scienter element is satisfied.


                                         -8-
Holloway v. United States , 119 S.Ct. 966, 970 (1999).         Mr. McClelland testified

that part of the robbery plan was to take the victim’s car,    see 10 R. 372, and,

indeed, Mr. Dixon told Mr. McClelland to drive it away after Mr. Dixon struck

the victim. See id. at 385. This in itself is sufficient evidence of Defendants’

state of mind for a rational jury to find intent.



2.     Conspiracy to Commit Carjacking as a Crime of Violence

       Mr. Brown contends that conspiracy under § 371 is not a crime of violence

as defined by § 924(c)(3), and therefore he could not be convicted of carrying a

firearm during and in relation to a crime of violence, § 924(c)(1). Our review of

this statutory interpretation question is de novo.     See United States v. King , 979

F.2d 801, 802 (10th Cir. 1992). A crime of violence is

              an offense that is a felony and–
              (A) has as an element the use, attempted use, or
              threatened use of physical force against the person or
              property of another, or
              (B) that by its nature, involves a substantial risk that
              physical force against the person or property of another
              may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). Of course, Mr. Brown was charged with conspiracy to

commit carjacking.

       The substantive offense of carjacking is always a crime of violence because

§ 2119 requires taking or attempting to take a vehicle by force and violence or by


                                             -9-
intimidation, and the crime of carjacking carries with it a substantial risk of the

use of physical force.    See United States v. Moore , 43 F.3d 568, 572-73 (11th Cir.

1995); United States v. Mohammed , 27 F.3d 815, 819 (2d Cir. 1994);              United

States v. Singleton , 16 F.3d 1419, 1423 (5th Cir. 1994) (“Carjacking is always

and without exception a ‘crime of violence’ as that term is defined in 18 U.S.C.

§ 924(c)(3).”). Both the government and Mr. Brown acknowledge that several

courts have held that a conspiracy to commit a federal crime of violence is a

crime of violence for purposes of § 924(c).          See , e.g. , United States v. Elder , 88

F.3d 127, 129 (2d Cir. 1996) (Hobbs Act conspiracy to commit robbery);               United

States v. Harper , 33 F.3d 1143, 1149 n.5 (9th Cir. 1994) (conspiracy to commit

bank robbery); United States v. Patino , 962 F.2d 263, 267 (2d Cir. 1992)

(conspiracy to kidnap);    United States v. Johnson , 962 F.2d 1308, 1311-12 (8th

Cir. 1992) (conspiracy to commit bank robbery).

       Relying upon United States v. King , Mr. Brown argues that this approach is

foreclosed in this circuit. In   King , the court held that a state conviction for

conspiracy to commit armed robbery was not a conviction of a violent felony

under 18 U.S.C. § 924(e). 979 F.2d at 802-03. Although the definition of a

violent felony under § 924(e) and a crime of violence under § 924(c) are

essentially identical,   King is easily distinguishable. The       King panel applied New

Mexico law which focuses solely on the unlawful agreement and does not require


                                            - 10 -
an overt act, thus, the underlying substantive offense could not be considered.

See King , 979 F.2d at 803. Moreover, in keeping with this circuit’s past approach

of looking only at the statutes involved, the court declined to look at the

underlying conduct.   See id. at 803-04.

      In this case, an overt act in furtherance of the object of conspiracy was an

element of the conspiracy.   See Salinas v. United States , 522 U.S. 52, 63 (1997)

(noting overt act requirement of § 371 conspiracy). This requirement plainly

invites consideration of the underlying substantive offense – here § 2119 –

because the overt act must be evaluated with reference to the object of the

conspiracy. Section 2119 requires not only       intent to cause death or serious bodily

harm, but also the attempted taking or taking of a vehicle by force or violence or

by intimidation. We recognize that conspiracy punishes collective criminal

agreement rather than the substantive offense.      See Iannelli v. United States , 420

U.S. 770, 777-779 (1975). However, at a minimum, an agreement to accomplish

the statutory elements of carjacking necessarily involves a substantial risk of

physical force against the person or property of a victim, § 924(c)(2)(b). The

district court did not err in refusing to dismiss count 4.



3.    In-Court Identification of the Defendants

      Defendants contend that the in-court identification of them by the victim


                                           - 11 -
was so unreliable as to be violative of due process. They base this contention on

the following facts. On the night of the carjacking, the victim and one of his

passengers were shown photo arrays, but neither could identify their assailants.

Both were aware that the victim’s vehicle had been recovered and arrests made.

A few weeks later (January 1998), at a state court preliminary hearing, the victim

identified Mr. Brown and Mr. Dixon, but not positively:

      I believe that’s the individual, the farther one on the right, that held
      the gun at me; and I believe he was in the passenger’s side of the
      car; and I believe the individual next to him was the driver of the
      car; but again, I can’t be positive because there are very few things
      that one can be positive about in life.

I R. doc. at 17-18. The victim was then asked about whether he had been able to

identify his assailants from the photo array. He explained:

      Not positively. There were no heights by the photographs so they
      were just basically head shots, not even really shoulders and also the
      photos - - I was suspicious of several of the photographs, but I did
      not positively ID anything.

Id. at 40. At the federal trial (August 1998), over defense objection, the victim

was able to identify the Defendants from the photo arrays, and explain his

inability to make earlier identifications. Mr. McClelland also identified and

implicated the Defendants at trial. 10 R. 346-48.

      Defendants contend that from the outset the victim undoubtedly was aware

that the Defendants were included in the photo array, and that the appearance of

the Defendants at the state preliminary hearing was “inherently suggestive.”

                                        - 12 -
They further argue that the federal trial identification from the photo array was

“obviously suggestive and unreliable” because the Defendants were seated in

federal court.

       Whether identification procedures are violative of due process is a legal

question reviewed de novo.      United States v. Smith , 156 F.3d 1046, 1050 (10th

Cir. 1998), cert. denied , 119 S. Ct. 844 (1999). The admission of in-court

identification testimony violates due process only when, under the totality of the

circumstances, it was tainted by unnecessarily suggestive pretrial identification

procedures creating a “very substantial likelihood of misidentification.”      Id. at

1051. In evaluating the likelihood of misidentification, a court considers “the

opportunity of the witness to view the criminal at the time of the crime, the

witness’ degree of attention, the accuracy of the witness’ prior description of the

criminal, the level of certainty demonstrated by the witness at the confrontation,

and the length of time between the crime and the confrontation.”        Neil v. Biggers ,

409 U.S. 188, 199-200 (1972). These factors are weighed against any

“corrupting effect of the suggestive identification itself.”    Manson v. Brathwaite ,

432 U.S. 98, 114 (1977).

       Defendants have failed to demonstrate that the pretrial identification

procedures in this case were “unnecessarily suggestive.”       Id. at 113. In United

States v. Aigevbolle , 772 F.2d 652, 653-54 (10th Cir. 1985), we held that the


                                            - 13 -
inability to identify a defendant from a photo array does not render a subsequent

in-court identification inadmissible, rather that inability goes to the weight of the

witness’s testimony, not its admissibility. Likewise, though the presence of

Defendants at the state preliminary hearing may have been suggestive given the

nature of such a hearing, that is not enough to render the subsequent trial

identification inadmissible.   See Johnson v. Sublett , 63 F.3d 926, 928-29 (9th

Cir. 1995). Finally, the victim’s identification of the Defendants at the trial,

including another look at the photo arrays, while suggestive, occurred in the

presence of the jury and the victim was fully and fairly cross-examined about the

process and his previous inability to positively identify the Defendants.    See

Aigbevbolle , 772 F.2d at 654.

       Moreover, the evidence in this case plainly supports the admissibility of

the trial identification, regardless of suggestiveness. The victim saw his

assailants in two places, at the nightclub and at his destination. He had an

opportunity to observe Defendants when asked for information as a ruse. He also

observed them during robbery and carjacking which were choreographed by a

sequence of orders and demands. Though the events were no doubt stressful, the

victim had the presence of mind to consider the likely consequences of

complying with the Defendants’ demands and refusing to run. His description of

the assailants contained important and specific information including height and


                                           - 14 -
clothing. See 8 R. 56. Height was particularly important because the victim (6’

6” tall) testified that the gunman was slightly shorter and the driver that hit him

was significantly shorter, having to reach to hit the victim.   Id. at 55. The

relatively short time period between the crime, pretrial identification and trial

identification does not undermine the trial identification. The in-court

identification testimony in no way violated due process, particularly given that

the victim’s identification and implication of the Defendants was corroborated

completely by Mr. McClelland.



4.     Gang Affiliation Evidence

       Defendants claim that the district court erred in allowing evidence that they

and Mr. McClelland were members of the “Folks” gang. They argue that this

evidence violated Rule 404(b) because it was unfairly prejudicial and not related

to the ultimate issues in the case. The government responds that the evidence

was admitted under Rule 401 and 403, not 404(b). Moreover, the common gang

affiliation was relevant to show the existence of a conspiracy and the relationship

between the witness and the defendants.

       We review the district court’s evidentiary ruling for an abuse of discretion.

United States v. Knox , 124 F.3d 1360, 1363 (10th Cir. 1997). It is unnecessary

for us to decide under which Rule the district court admitted the evidence. “If


                                            - 15 -
evidence is admissible under any of the Federal Rules of Evidence, this court may

affirm the admission.”    United States v. Robinson , 978 F.2d 1554, 1562 (10th

Cir. 1992).

       In Robinson , this court allowed gang affiliation evidence to prove a

conspiracy among the defendants.

              We are persuaded that associational evidence may be
              directly relevant on the issues of formation, agreement
              and purpose of a conspiracy. Circumstantial evidence is
              often the strongest evidence of conspiracy. Gang
              membership helped to establish an agreement among the
              subjects, the purpose of the conspiracy and knowledge
              on the part of these defendants.

Id. at 1562-63 (citation omitted). Gang affiliation was also admitted in    United

States v. Sloan , 65 F.3d 149, 151 (10th Cir. 1995), to “show the basis of the

relationship between the defendant and witnesses.”       See also United States v.

Thomas , 86 F.3d 647, 652 (7th Cir. 1996) (“Gang affiliation is particularly

relevant, and has been held admissible, in cases where the interrelationship

between people is a central issue.”);   United States v. Easter , 66 F.3d 1018, 1020-

21 (9th Cir. 1995) (gang affiliation relevant to question of identity).

       Here, the gang affiliation was clearly relevant. First, when arrested, Mr.

Brown and Mr. Dixon both alleged that they had no part in stealing the victim’s

vehicle. Their involvement in the “Folks” gang, along with Mr. McClelland, the

driver of the victim’s vehicle, goes to the issues of identity, joint venture and


                                          - 16 -
existence of a conspiracy. Second, gang affiliation illuminates the relationship

between Mr. McClelland and the Defendants, not only as to the robbery and

carjacking, but also as to Mr. McClelland’s subsequent testimony against the

Defendants. The district court did not abuse its discretion.



6.     Commerce Clause

       Defendants argue that the carjacking statute violates the commerce clause

by failing to meet the substantial interstate nexus requirement, in light of      United

States v. Lopez , 514 U.S. 549 (1995). We previously rejected this claim in

United States v. Romero , 122 F.3d 1334, 1339 (10th Cir. 1997),          cert. denied , 118

S.Ct. 1310 (1998), and follow our decision in that case. “[I]t is almost axiomatic

that one panel of this court cannot overrule another panel.”        United States v.

Alvarez , 142 F.3d 1243, 1247 (10th Cir. 1998),       cert. denied , 119 S. Ct. 242

(1998).



7.     Double Jeopardy

       Defendants argue that the trial court erred in denying a motion to dismiss

Count 3 (use of a firearm during a crime of violence) because separate

convictions for carjacking and use of a firearm during the carjacking violates the

double jeopardy clause. This specific argument was rejected in          United States v.


                                            - 17 -
Overstreet , 40 F.3d 1090 (10th Cir. 1994) (relying, in part, on   Missouri v.

Hunter , 459 U.S. 359 (1983)). Defendants attempt to argue that      Hunter was

somehow overruled by United States v. Dixon , 509 U.S. 688 (1993), thus calling

our opinion in Overstreet into question. This argument is unpersuasive since

nothing in the Dixon opinion suggests that Hunter was overruled; Overstreet was

decided after Dixon and relied upon it as well as upon      Hunter ; and the Supreme

Court has subsequently quoted     Hunter with approval in Rutledge v. United

States , 517 U.S. 292, 303 (1996). The district court properly denied the motion to

dismiss Count 3.



8.     Government Promises & the Federal Anti-Gratuity Statute

       Defendants assert that government promises not to file federal charges

against Kyree McClelland in exchange for his testimony violate the Federal Anti-

Gratuity Statute, 18 U.S.C. § 201(c)(2). This issue was decided adversely in

United States v. Singleton , 165 F.3d 1297 (10th Cir. 1999) (en banc),    cert.

denied ,

119 S.Ct. 2371 (1999), and resolves Defendants’ claim.



9.     Bodily Injury Enhancement

       Defendants challenge the increase in their offense level under USSG


                                           - 18 -
§ 2B3.1(b)(3)(A) which was based on the district court’s finding that the victim

sustained “bodily injury.” They argue that the victim’s injuries were not

“significant” and therefore do not rise to the level of a “bodily injury” under the

Sentencing Guidelines.

       “The district court's determination of the significance of a bodily injury is

a finding of fact we review for clear error.”        United States v. Perkins , 132 F.3d

1324, 1326 (10th Cir. 1997). The Guidelines define bodily injury as “any

significant injury; e.g. , an injury that is painful and obvious, or is of a type for

which medical attention ordinarily would be sought.” USSG § 1B1.1, comment.

(n.1 (b)). “‘[T]o be “significant” an injury need not interfere completely with the

injured person's life but cannot be wholly trivial and, while it need not last for

months or years, must last for some meaningful period.’”          Perkins , 132 F.3d at

1326 (citation omitted). Visible injuries such as bumps, bruises, and redness or

swelling are sufficient to constitute “bodily injury.”       See id.; see also United

States v. Pandiello , 184 F.3d 682, 685-86 (7th Cir. 1999) (red welts and

shoeprint mark on back constitute bodily injury);         United States v. Hoelzer , 183

F.3d 880, 882 (8th Cir. 1999) (finding that bruises resulting from “being hit,

kicked and stepped on by the defendants” was bodily injury);          United States v.

Hamm , 13 F.3d 1126, 1128 (7th Cir. 1994) (holding that bruises were “painful

and obvious” bodily injury).


                                            - 19 -
      Here, the victim sustained bleeding and a severe headache from the “half a

dozen” blows he received, as well as swelling, bruises, cuts and lumps on his

face. See 2 R., doc. 148 at 4; 8 R. 66-67; 11 R. 592; 14 R. 34. These injuries are

clearly “painful and obvious” and the district court did not err in finding that the

incident involved bodily injury.

      AFFIRMED.




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