[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-13307 JULY 29, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-00832-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR ALEXANDER TORREALBA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 29, 2003)
Before HULL, MARCUS and FARRIS*, Circuit Judges.
MARCUS, Circuit Judge:
This direct criminal appeal arises from appellant Edgar Alexander
Torrealba’s November 14, 2001 convictions of one count of conspiracy to commit
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
hostage taking, in violation of 18 U.S.C. § 1203(a), one substantive count of
hostage taking, also in violation of § 1203(a), and one count of using and carrying
a firearm during and in relation to a federal crime of violence, in violation of 18
U.S.C. § 924(c). On appeal, Torrealba asserts four errors at sentencing: (1) that
the district court erred by dividing his conspiracy conviction into 3 different
groups for sentencing purposes based on the 3 victims of his crimes; (2) that the
court improperly applied a 6 level enhancement based on the making of a ransom
demand; (3) that the district court erred by applying a 4 level enhancement based
on his infliction of “permanent or life-threatening” injuries on one of his victims;
and (4) that the court erred by denying his request for a downward departure.
After thorough review, we are persuaded by none of them, and, accordingly,
affirm.
I
On the evening of December 13, 1999, Wilma Christine Aragao
(“Christine”) and her children Alceau (age 9) and Alexander (age 1) had just
returned home from a Christmas party when they were abducted by Torrealba and
co-conspirators Ewin Oscar Martinez, Jean Carlo Ferreira and Pedro Farael
Caraballo (collectively “the conspirators”). This kidnaping was the culmination of
nearly six months of surveillance of the Aragao family by the conspirators, who
2
actually wanted to abduct Christine’s husband and to extort ransom money from
the Aragao family. However, the conspirators mistimed their efforts, and instead
of kidnaping Mr. Aragao they abducted his wife and two of his children.
When the assailants approached her in the parking garage of her
condominium complex, Christine was holding Alexander and Alceau was standing
nearby. However, upon being severely beaten about the face and repeatedly
shocked with a stun gun, Christine dropped Alexander to the concrete garage
floor. Christine’s injuries from this beating were severe. One of her cheekbones
was fractured in three places, her jawbone was pushed completely into her face so
as to render movement difficult and painful, and her right eye socket was
completely shattered, causing internal hemorrhaging and nerve damage in and
around the orbital socket. Additionally, she suffered several facial lacerations
from the beating and the electrical charge from the stun gun left her burned and
temporarily unconscious. Christine’s treating physician opined that her facial
symmetry will never be the same as it was prior to the attack and that the nerve
damage she suffered is likely permanent, as are the scars that now mark her face.
Alexander suffered multiple scrapes and bruises as a result of his fall. Alceau also
was shocked with the stun gun and was burned as a result.
3
The three victims were taken to a North Miami home where they were
strapped to lawn chairs, gagged and placed in separate pitch-dark closets.1
Although Christine was unsure exactly how long she was restrained in this
manner, she experienced extreme physical pain during her confinement.
Moreover, she was able to hear the sobs of both of her children but was unable to
respond in any way. Christine was forced to contact her husband by both cell
phone and letter (although the letter never was mailed), and in her letter she
mentioned “a $70,000 bounty.”2 Mr. Aragao alerted law enforcement authorities,
who were able to track one of Christine’s cell phone calls to the residence where
she and her children were being kept. During the early morning hours of
December 18, 1999, government agents rescued the victims. Christine, Alceau
and Alexander each received medical attention, and Christine ultimately was
forced to undergo reconstructive surgery to repair the facial injuries she sustained
at the hands of her assailants.
Torrealba was not present in the home when the rescue was effected, and
accordingly was not arrested until September 21, 2000. He was charged under a
1
Indeed, following the family’s rescue, authorities found in a closet a blood-stained
aluminum-framed lawn chair.
2
Because the letter was not mailed, the government does not argue that any ransom
demand actually was delivered to Mr. Aragao.
4
superseding indictment with one count of conspiracy to commit hostage taking, in
violation of 18 U.S.C. § 1203(a); one substantive count of hostage taking, in
violation of 18 U.S.C. § 1203(a); and one count of using and carrying a firearm
during and in relation to a federal crime of violence, in violation of 18 U.S.C. §
924(c). He subsequently pled guilty to each of these charges.
At sentencing, the district court divided Torrealba’s offenses into 3 groups
pursuant to U.S.S.G. §§ 1B1.2(d) and 3D1.2 based on the 3 victims. Group one
related to the abduction of Christine, and ultimately featured an offense level of
36. This level was derived in the following way: The district court started with a
base offense level of 24 under U.S.S.G. § 2A4.1(a). The court then applied a 6
level upward adjustment pursuant to U.S.S.G. § 2A4.1(b)(1) because it was
reasonably certain that a ransom demand would have been made had the
kidnappers not been thwarted, thereby bringing the offense level to 30. The
district court then applied a 4 level increase pursuant to U.S.S.G. § 2A4.1(b)(2) to
reflect Christine’s permanent or life-threatening bodily injury, and a 2 level
increase pursuant to U.S.S.G. § 3A1.1(b)(1) because the offense involved a
vulnerable victim, thus resulting in the final adjusted offense level of 36. The
second and third groups pertained to victims Alceau and Alexander, and featured
5
final adjusted offense levels of 34 and 32 respectively, with the discrepancy
between them attributable to the different degrees of injury they suffered.3
The district court took the highest of these levels, 36, and added 3 additional
levels to reflect the 3 victims. However, this upward adjustment was offset by a 3
level reduction pursuant to U.S.S.G. § 3E1.1(a) and (b)(1) for acceptance of
responsibility. The court then considered Torrealba’s request for a downward
departure pursuant to U.S.S.G. § 5K2.0, but after acknowledging its discretion to
grant the request denied it. The district court ultimately sentenced appellant to
280 months imprisonment4 and 5 years supervised release.
On appeal, Torrealba claims that the district court erred by (1) dividing his
offenses into 3 distinct groups based on 3 victims pursuant to U.S.S.G. §§
3
Alceau’s injuries -- i.e., the burns from the stun gun -- were more severe than those
suffered by Alexander, who endured only some scrapes and bruises when Christine dropped him
after being stunned.
4
More specifically, Torrealba was sentenced to 220 months imprisonment on counts 1 and
2 of the indictment, to run concurrently, and 60 months on count 3, to run consecutively.
6
1B1.2(d)5 and 3D1.2 6; (2) applying a 6 level enhancement for the ransom demand
pursuant to U.S.S.G. § 2A4.1(b)(1)7; (3) enhancing his sentence based on the
5
This subsection provides:
A conviction on a count charging a conspiracy to commit more
than one offense shall be treated as if the defendant had been
convicted on a separate count of conspiracy for each offense that
the defendant conspired to commit.
U.S.S.G. § 1B1.2(d).
6
This section provides:
All counts involving substantially the same harm shall be grouped
together into a single Group. Counts involve substantially the
same harm within the meaning of this rule:
(a) When counts involve the same victim and the same act or transaction.
(b) When counts involve the same victim and two or more acts or
transactions connected by a common criminal objective or
constituting part of a common scheme or plan.
(c) When one of the counts embodies conduct that is treated as a
specific offense characteristic in, or other adjustment to, the
guideline applicable to another of the counts.
(d) When the offense level is determined largely on the basis of the
total amount of harm or loss, the quantity of a substance involved,
or some other measure of aggregate harm, or if the offense
behavior is ongoing or continuous in nature and the offense
guideline is written to cover such behavior.
U.S.S.G. § 3D1.2.
7
This subsection provides that “[i]f a ransom demand or a demand upon government was
made, increase by 6 levels.” U.S.S.G. § 2A4.1(b)(1).
7
severity of the injuries suffered by Christine pursuant to U.S.S.G. § 2A4.1(b)(2)8;
and (4) denying his request for a downward departure pursuant to U.S.S.G. §
5K2.09.
II
8
This subsection provides: “(A) If the victim sustained permanent or life-threatening
bodily injury, increase by 4 levels; (B) if the victim sustained serious bodily injury, increase by 2
levels; or (C) if the degree of injury is between that specified in subdivisions (A) and (B),
increase by 3 levels.” U.S.S.G. § 2A4.1(b)(2).
9
This section provides, in pertinent part:
Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside
the range established by the applicable guidelines, if the court finds “that there
exists an aggravating or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different from that described.”
Circumstances that may warrant departure from the guideline range pursuant to
this provision cannot, by their very nature, be comprehensively listed and
analyzed in advance. The decision as to whether and to what extent departure is
warranted rests with the sentencing court on a case-specific basis. Nonetheless,
this subpart seeks to aid the court by identifying some of the factors that the
Commission has not been able to take into account fully in formulating the
guidelines. Any case may involve factors in addition to those identified that have
not been given adequate consideration by the Commission. Presence of any such
factor may warrant departure from the guidelines, under some circumstances, in
the discretion of the sentencing court. Similarly, the court may depart from the
guidelines, even though the reason for departure is taken into consideration in
determining the guideline range (e.g., as a specific offense characteristic or other
adjustment), if the court determines that, in light of unusual circumstances, the
weight attached to that factor under the guidelines is inadequate or excessive.
U.S.S.G. § 5K2.0.
8
We review the district court’s application of the Sentencing Guidelines de
novo and its factual findings for clear error. United States v. Ortiz, 318 F.3d 1030,
1036 (11th Cir. 2003); United States v. Smith, 231 F.3d 800, 806 (11th Cir. 2000).
As we have recognized, “[t]here are two provisions of the sentencing
guidelines that allow a sentencing court to divide a count into several groups for
sentencing.” United States v. Hersh, 297 F.3d 1233, 1248 (11th Cir. 2002), cert.
denied, __ U.S. __, 123 S. Ct. 1319, 154 L. Ed. 2d 1071 (2003). These are
U.S.S.G. §§ 3D1.2 & 1B1.2(d). See id. Under § 3D1.2, “a sentencing court may
treat a conspiracy count as if it were several counts, each one charging conspiracy
to commit one of the substantive offenses, when a defendant is convicted of
conspiring to commit several substantive offenses and also convicted of
committing one or more of the underlying substantive offenses.” Id. (citing
U.S.S.G. § 3D1.2, cmt. n.8). U.S.S.G. § 1B1.2(d) similarly provides that “[a]
conviction on a count charging a conspiracy to commit more than one offense
shall be treated as if the defendant had been convicted on a separate count of
conspiracy for each offense that the defendant conspired to commit.”
In order to determine whether the district court properly divided appellant’s
conspiracy conviction into separate offenses pursuant to U.S.S.G. § 3D1.2, we
must decide whether a conspiracy to take several hostages is a conspiracy to
9
commit several substantive “offenses” within the meaning of commentary note 8
to section 3D1.2.10 Notably, guideline commentary “must be given ‘controlling
weight unless it is plainly erroneous or inconsistent with the regulation’” it
interprets or is contrary to the United States Constitution or federal law. Stinson
v. United States, 508 U.S. 36, 45, 113 S. Ct. 1913, 1919, 123 L. Ed. 2d 598 (1993)
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).
Note 8 offers the following example:
The defendant is convicted of two counts: conspiring to
commit offenses A, B, and C, and committing offense A.
Treat this as if the defendant was convicted of (1)
committing offense A; (2) conspiracy to commit offense
A; (3) conspiracy to commit offense B; and (4)
conspiracy to commit offense C. Count (1) and count (2)
are grouped together under § 3D1.2(b).
U.S.S.G. § 3D1.2, cmt. n.8. This note goes on to explain:
A primary consideration in this section is whether the offenses
involve different victims. For example, a defendant may stab three
prison guards in a single escape attempt. Some would argue that all
counts arising out of a single transaction or occurrence should be
10
This case is different from Hersh, where the defendant was convicted of conspiracy to
travel in foreign commerce with the intent to engage in sexual acts with minors, in violation of
18 U.S.C. § 2423(b), but was not convicted of the substantive offense of traveling in foreign
commerce with the intent to engage in sexual acts with minors. See id. at 1248. (“While Hersh
was convicted of a conspiracy to travel offense . . . he was not also convicted of any substantive
travel offenses.”). “As a result,” we held, U.S.S.G. § 3D1.2 “[did] not apply to Hersh, and he
should not have been sentenced separately based on this provision.” Id. Torrealba, by contrast,
was convicted of both conspiracy to commit hostage taking and the substantive offense of
hostage taking.
10
grouped together even when there are distinct victims. Although such
a proposal was considered, it was rejected because it probably would
require departure in many cases in order to capture adequately the
criminal behavior. Cases involving injury to distinct victims are
sufficiently comparable, whether or not the injuries are inflicted in
distinct transactions, so that each such count should be treated
separately rather than grouped together.
Id. (emphasis added).
Thus, where a conspiracy involves multiple victims, the defendant should be
deemed to have conspired to commit an equal number of substantive offenses, and
the conspiracy count should be divided under § 3D1.2 into that same number of
distinct crimes for sentencing purposes. As the Tenth Circuit said in United States
v. Jose-Gonzalez, a case in which the court applied the grouping rules set forth in
U.S.S.G. § 3D1.2 and its application notes, “[w]hen . . . the gist of the offense is
injury to persons, the offense against each human victim belongs in a different
group, even when the offenses arose out of a single event. . . . [T]he Guidelines[’]
commitment not to group offenses having different human victims suggests that
the district court’s approach to grouping offenses in this case would not only be
tolerated by the Guidelines but would be encouraged as a logical extrapolation of
Guidelines principles.” 291 F.3d 697, 707 (10th Cir. 2002) (emphasis added); see
also United States v. D’Ambrosia, 313 F.3d 987, 995 (7th Cir. 2002) (Posner, J.,
dissenting) (“Grouping . . . is done when a defendant is convicted of multiple
11
counts so closely related that they essentially merge into a single offense; or, in the
words of the guideline, when they inflict ‘substantially the same harm.’ When, as
in this case, the victims are different . . . , grouping [together] is improper . . . .”)
(quoting § 3D1.2) (other citations omitted); United States v. Braxtonbrown-
Smith, 278 F.3d 1348, 1356 (D.C. Cir. 2002) (“[T]he district court did not clearly
err in grouping, for purposes of § 3D1.2(b) of the Guidelines, the fraud counts
(bank, mail, and wire) separately from the money laundering and tax evasion
counts given the district court’s finding that there were different victims . . . .”),
cert. denied, 536 U.S. 932, 122 S. Ct. 2609, 153 L. Ed. 2d 795 (2002); United
States v. Bellamy, 26 Fed. Appx. 250, 261-62 (4th Cir. 2002) (holding that
“multiple counts with different victims cannot be grouped under the plain
language of § 3D1.2(b)”).
Based on the foregoing principles, we conclude that the district court did
not err in dividing Torrealba’s conspiracy count into 3 separate groups under §
3D1.2 based on 3 distinct victims. Indeed, the government could have brought 3
separate kidnaping charges against Torrealba. See generally United States v.
Burnette, 170 F.3d 567, 568 & n.1 (6th Cir. 1998). The district court properly
grouped the taking of each hostage separately for sentencing purposes. Section
3D1.2 cmt. n.8 plainly contemplates treating the 3 kidnaping victims separately in
12
order to adequately capture the full extent of appellant’s criminal behavior.
Torrealba’s first claim on appeal is unpersuasive, and we need not address the
applicability of § 1B1.2(d) in this case.
Appellant next contends that the district court erred by applying a 6 level
enhancement for the ransom demand pursuant to U.S.S.G. § 2A4.1(b)(1).11
Specifically, he argues that the district court should not have enhanced his
sentence based on the ransom demand because that demand never “was made,” as,
he says, it must have been for §2A4.1(b)(1) to have been implicated.
Controlling the disposition of this claim is our holding in United States v.
Ferreira, 275 F.3d 1020 (11th Cir. 2001), cert. denied, 535 U.S. 1028, 122 S. Ct.
1631, 152 L. Ed. 2d 641 (2002), where Ferreira, Martinez and Caraballo advanced
precisely the same argument. Importantly, Ferreira stemmed from exactly the
same events that gave rise to Torrealba’s prosecution, and accordingly, the
pertinent portion of our holding in that case is worth reproducing at length. We
said:
The parties agree that, although a ransom letter was drafted on
Martinez’s computer and was printed, it was never actually delivered
to Mr. Aragao. Appellants Ferreira and Martinez argue, therefore,
11
This section provides: “If a ransom demand or a demand upon government was made,
increase by 6 levels.” U.S.S.G. § 2A4.1(b)(1).
13
that the enhancement was improper because § 2A4.1(b)(1) requires
that a ransom demand “was made.”
The district court rejected that contention, as do we. The
district court held that the guideline language must be read [in light
of] the application notes accompanying it. Specifically, Application
Note Five to § 2A4.1 states that “[i]n the case of a conspiracy,
attempt, or solicitation to kidnap, § 2X1.1 (Attempt, Solicitation or
Conspiracy) requires that the court apply any adjustment that can be
determined with reasonable certainty.” U.S.S.G. § 2A4.1, comment.
(n.5). Reading the commentary alongside the guideline language, the
district court concluded that an enhancement is appropriate if it could
be determined “with reasonable certainty” that a ransom demand
would have been made but for the appellants’ capture. The district
court then found that the repeated phone calls to Mr. Aragao together
with the torn letter made it “reasonably certain” that the appellants
would have made a ransom demand if doing so had been feasible.
Appellants argue that the district court erred in relying on the
application note in this case because the guideline language plainly
requires that the ransom demand “was made.” In making that
argument, they cite our opinion in United States v. Chastain, 198 F.3d
1338 (11th Cir. 1999), for the proposition that, where the Guidelines
provide for an enhancement based on a completed act, as evidenced
by the use of the past tense, the act must actually have occurred in
order for the enhancement to apply. In Chastain, the defendants
attempted to use a private plane to import narcotics, but the plane
crashed before the crime could be executed. During sentencing, the
district court granted a two-level enhancement pursuant to U.S.S.G. §
2D1.1(b)(2), which is entitled “Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to
Commit These Offenses); Attempt or Conspiracy,” and permits the
increase “[i]f the defendant unlawfully imported or exported a
controlled substance under circumstances in which an aircraft other
than a regularly scheduled commercial air carrier was used to import
or export the controlled substance . . . .” In granting the two-level
enhancement, the district court relied on the words “attempt or
14
conspiracy” in the title. Id. at 1353. On appeal, we determined that
the language required that the airplane was “used to import” and,
therefore, contemplated a “completed event, an actual importation.”
Id. Accordingly, we found it unnecessary to look to the title of the
guideline to explain what was clear in the text and reversed because
there was no completed importation. Id.
Appellants’ reliance on Chastain, however, is misplaced. In
Chastain, there was no application note supporting U.S.S.G. §
2D1.1(b)(2), the provision at issue in that case. Had there been an
application note, nothing in Chastain suggests that we would not have
considered it. There is a substantial difference between the title of a
guideline provision and commentary or an application note to a
guideline provision. A stated purpose of the commentary is to
“interpret the guideline or explain how it is to be applied.” U.S.S.G.
§ 1B1.7. See also Stinson v. United States, 508 U.S. 36, 44, 113 S.
Ct. 1913, 1918, 123 L. Ed. 2d 598 (1993) (“[C]ommentary explains
the guidelines and provides concrete guidance as to how even
unambiguous guidelines are to be applied in practice.”). There is no
such stated purpose for the title, and we have held that the title of a
statutory provision may be useful only when it sheds light on some
ambiguous word or phrase. Adler v. Duval County Sch. Bd., 206
F.3d 1070, 1087 (11th Cir. 1999), vac. on other grounds, 531 U.S.
801, 121 S. Ct. 31, 148 L. Ed. 2d 3 (2000), and opinion reinstated,
250 F.3d 1330 (11th Cir. 2001), cert. denied, 534 U.S. 1065, 122 S.
Ct. 664, 151 L. Ed. 2d 579 (2001). No restriction is placed on the use
of the application notes and, in fact, exactly the contrary is true -- the
guideline and the commentary must be “read together.” See, e.g.,
United States v. Pedragh, 225 F.3d 240, 244 (2d Cir. 2000) (holding
that “since the commentary is part and parcel of the Sentencing
Guidelines Manual and, as the Supreme Court has pointed out, is
written by the same body that is charged with drafting the guidelines,
the two are to be read together”). See also United States v. Gay, 240
F.3d 1222, 1232 (10th Cir. 2001).
Finally, . . . appellants’ contention that a ransom note must
actually have been delivered is directly contrary to the application
15
note’s requirement that the court apply any adjustment that can be
determined with “reasonable certainty.” Thus, in order to adopt
appellants’ reading of the guideline language, we would be required
to ignore the application note entirely. That, we are unwilling to do.
Rather, we conclude that the district court correctly interpreted
U.S.S.G. § 2A4.1(b)(1). Because the phone calls to Mr. Aragao
coupled with the letter found in the North Miami house made it
“reasonably certain” that the appellants would have made a ransom
demand if doing so had been feasible, the district court appropriately
granted the six-level enhancement.
Ferreira, 275 F.3d at 1028-30.
In this case, Torrealba relies on Chastain in arguing that we are bound to
adhere to the plain meaning of § 2A4.1(b)(1) -- i.e., that the enhancement provided
for by that section applies only where a ransom demand actually is delivered -- just
as his co-conspirators did in Ferreira. However, we are bound by the discussion
set forth above to reject that contention. Indeed, not only are we obliged to follow
Ferreira as binding legal precedent -- and thus to accept its conclusion that the 6
level enhancement under § 2A4.1(b)(1) is appropriate in any case where it is
reasonably certain a ransom demand would have been made -- but also, the
factual circumstances in this case are literally identical to those at issue in Ferreira.
Thus, the application of the 6 level enhancement under § 2A4.1(b)(1) was just as
appropriate in this case as it was in Ferreira.
16
Appellant next argues that the district court erred by applying a 4 level
enhancement pursuant to U.S.S.G. § 2A4.1(b)(2)(A) based on Christine’s
“permanent or life-threatening bodily injur[ies].” Although Torrealba concedes
(as he must) that Christine suffered serious bodily injuries, and that a 2 level
enhancement would have been appropriate under section 2A4.1(b)(2)(B), he
contests the applicability of the larger enhancement.
The application notes to § 2A4.1 provide that “[d]efinitions of ‘serious
bodily injury’ and ‘permanent or life-threatening bodily injury’ are found in the
Commentary to § 1B1.1.” U.S.S.G. § 2A4.1 cmt. n.1. The application notes to
section 1B1.1, in turn, define these terms as follows:
“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 permanent; or an obvious disfigurement that is likely to be
permanent. In the case of a kidnapping, for example, maltreatment to
a life-threatening degree (e.g., by denial of food or medical care)
would constitute life-threatening bodily injury.
U.S.S.G. § 1B1.1 cmt. n.1(g).
“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. In addition, “serious
bodily injury” is deemed to have occurred if the offense involved
conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or
17
§ 2242 or any similar offense under state law.
U.S.S.G. § 1B1.1 cmt. n.1(i).
As the Fifth Circuit has noted, “[t]he plain language of application note
1[(g)] encompasses injuries that may not be terribly severe but are permanent,
hence the disjunctive: ‘permanent or life- threatening injuries.’” United States v.
Price, 149 F.3d 352, 354 (5th Cir. 1998). In this case, as we have observed supra,
Christine’s treating physician opined that her facial symmetry will never be the
same as it was prior to the attack and that the nerve damage and scarring she
suffered are likely permanent. Under these circumstances, we readily conclude
that the district court did not clearly err in determining that Christine’s injuries
were “permanent or life-threatening,” and that the imposition of a 4 level upward
adjustment under section 2A4.1(b)(2)(A) consequently was appropriate.12 See,
e.g., United States v. Bogan, 267 F.3d 614, 624 (7th Cir. 2001) (holding that the
12
Because Christine’s injuries were themselves sufficient to warrant a 4 level adjustment
under § 2A4.1(b)(2)(A), we need not consider whether the situation into which the conspirators
placed her posed a sufficient threat to her life to warrant such an adjustment. See, e.g., United
States v. Williams, 258 F.3d 669, 674 (7th Cir. 2001) (holding that the fact that the victim faced
“life-threatening risk” was sufficient to warrant a 4 level upward adjustment) (emphasis added),
cert. denied, 534 U.S. 981, 122 S. Ct. 414, 151 L. Ed. 2d 314 (2002); United States v. Morgan,
238 F.3d 1180, 1188 (9th Cir. 2001) (“It . . . is clear that the district court believed that [the ‘life-
threatening’] enhancement does not apply when the ‘circumstances’ themselves are life-
threatening, irrespective of any other injury that the victim might have suffered. . . . We do not
agree that the court’s authority is so limited.”), cert. denied, 534 U.S. 863, 122 S. Ct. 146, 151 L.
Ed. 2d 97 (2001).
18
victim incurred “permanent or life-threatening injuries” where he “suffered
lacerations requiring sutures, a fractured eye-socket bone, nerve damage to the left
side of his face, ongoing emotional distress and migraine headaches, and the
potential loss of three teeth”); United States v. Phillips, 239 F.3d 829, 848 (7th Cir.
2001) (holding that the victim’s permanent facial scars constituted “permanent or
life-threatening bodily injury”), cert. denied, 534 U.S. 884, 122 S. Ct. 191, 151 L.
Ed. 2d 289 (2001); United States v. Chee, 173 F.3d 864 (10th Cir. 1999) (table
disposition) (holding that the victim’s permanent scar on her lip constituted
“permanent or life-threatening bodily injury”); United States v. Jacobs, 167 F.3d
792, 797-98 (3d Cir. 1999) (holding that the victim’s permanent scarring
constituted “permanent or life-threatening bodily injury”).
Finally, Torrealba argues that the district court erred by refusing to
downwardly depart pursuant to U.S.S.G. § 5K2.0 based on the extensive physical
and sexual abuse that he suffered during his childhood at the hands of Martinez,
his co-conspirator and the apparent mastermind of the kidnaping plot. This
contention is plainly unpersuasive. Under our caselaw, “[w]e may not review a
district court’s refusal to grant a downward departure unless the court mistakenly
believed that it lacked the authority to grant such a departure.” United States v.
Hansen, 262 F.3d 1217, 1256 (11th Cir. 2001) (citing United States v. Mignott, 184
19
F.3d 1288, 1290 (11th Cir. 1999)), cert. denied, 535 U.S. 1111, 122 S. Ct. 2326,
153 L. Ed. 2d 158 (2002). In this case, the district court unambiguously
recognized that it possessed the authority to downwardly depart, saying
specifically that “under 5K2.0, though the Court recognizes the authority . . . for
the Court to consider a downward departure, and I have very seriously thought
through the presentation of the testimony by Mr. Torrealba . . . I do not find it
appropriate under the facts and circumstances of this case . . . .” Simply stated,
our review of appellant’s fourth claim on appeal ends with this plain recognition
by the district court of its authority to downwardly depart.
In short, we find none of appellant’s claims persuasive, and, accordingly, we
affirm.
AFFIRMED.
20