United States v. Lewis, 120121 FED4, 17-4737
| Judge | Before AGEE and WYNN, Circuit Judges, and Frank W. VOLK, United States District Judge for the Southern District of West Virginia, sitting by designation. Vacated and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Agee and Judge Volk joined. |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Date | 01 December 2021 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MELVIN THOMAS LEWIS, Defendant - Appellant. |
| Docket Number | 17-4737 |
Argued: September 21, 2021
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cr-00232-MOC-DSC-1)
ARGUED:
Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
ON BRIEF:
Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Before AGEE and WYNN, Circuit Judges, and Frank W. VOLK, United States District Judge for the Southern District of West Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Agee and Judge Volk joined.
WYNN, Circuit Judge
1
Melvin Thomas Lewis pleaded guilty to conspiracy to commit robbery, robbery, and brandishing a firearm in relation to a crime of violence. The district court sentenced him to 130 months' imprisonment.
On appeal, Lewis argues that his sentence is procedurally unreasonable because the district court erroneously applied a sentencing enhancement for bodily injury. We agree and therefore vacate Lewis's sentence and remand for resentencing.
I.
The relevant facts are as follows. On August 25, 2016, Lewis and two other men robbed a pawn shop in Charlotte, North Carolina at gunpoint. The store manager, another employee, and a customer were present. During the robbery, Lewis pointed his firearm at the manager and struck him in the back of the head three times, causing him to fall to the floor. In all, the robbers stole twenty-eight firearms, more than $61, 000 worth of jewelry, and $2, 000 in cash.
When the police arrived, they found a "red spot" on the back of the manager's head, although it was not bleeding. J.A. 43.1 The manager said he felt "dizzy" and, though the injury was "non-life threatening," he was taken to the hospital. J.A. 12, 36. His medical expenses totaled $3, 676.92 but the record does not indicate what diagnostic tests or treatments those costs included.
2
Lewis was arrested about one week after the robbery. Several months later, a grand jury sitting in the Western District of North Carolina returned a three-count superseding indictment charging Lewis with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) ("Count I"); Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951-52 ("Count II"); and brandishing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) ("Count III"). On May 26, 2017, Lewis pleaded guilty to all three counts of the superseding indictment.
As is customary, a U.S. Probation Officer prepared a Presentence Investigation Report in advance of sentencing. The Report grouped Count I and Count II and, for those counts, determined that Lewis's base offense level was 20. However, it recommended adding a two-level enhancement because a victim sustained bodily injury; a one-level enhancement because Lewis and his codefendants stole firearms; and a one-level enhancement because the store lost items valued at more than $20, 000 but less than $95, 000. See U.S.S.G. § 2B3.1(b)(3)(A), (6), (7)(B) (2016). After a three-level downward adjustment for acceptance of responsibility, Lewis's total offense level for Counts I and II was set at 21. Because Lewis fell under a criminal history category of III, the calculated sentencing range for Counts I and II was 46 to 57 months' imprisonment. Count III required an 84-month mandatory minimum sentence to be served consecutive to any sentence for Counts I and II. See 18 U.S.C. § 924(c)(1)(A)(ii).
3
Lewis filed a written objection to the Presentence Investigation Report's recommended two-level enhancement for bodily injury.2 He argued that under the Sentencing Guidelines an injury must be "significant" to sustain the enhancement and that no such injury occurred here. S.J.A. 85. The Probation Officer rejected his argument and confirmed that the enhancement was "appropriate" because "[e]vidence indicates that the victim was struck in the back of the head with a gun three times and sought medical attention." S.J.A. 107.
At sentencing, Lewis renewed his objection to the bodily injury enhancement. He acknowledged that, under the Guidelines, if the manager's injuries were "painful or obvious" or were injuries for which "medical treatment ordinarily would be sought," they would qualify as "significant." J.A. 36; see U.S.S.G. § 1B1.1 cmt. n.1(B) (defining "[b]odily 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"). But he contended that under controlling case law an injury must also have "more than momentary consequences" to be "significant." J.A. 37. Because there was "no wound," "no blood," "no laceration," and "no medical record suggesting that [the manager suffered] any sort of significant injury," Lewis argued the enhancement should not apply. J.A. 36.
The Government initially agreed that the injury "must last for some meaningful period," perhaps at least "a few hours," to trigger the enhancement. J.A. 41. But later, the
4
Government argued that "the length [of time] of the injury and how long [the victim is] suffering" is not a factor in the bodily injury enhancement. J.A. 43. The Government contended that the manager's injuries were "significant" because he had a "red mark" where Lewis struck him, felt "dizzy" afterwards, and sought medical "treatment." J.A. 39, 42, 44. Though the Government conceded it did not have any of the manager's medical records, it argued the hospital "must have done something while he was there" since he was charged over $3, 600. J.A. 39.
The district court found the applicability of the bodily injury enhancement to be "a close case." J.A. 44. The court recognized that even if a defendant "hit somebody three times in the head," it "doesn't matter how hard [they] hit them" if the victim suffered no significant injury. J.A. 51. Nevertheless, "[a]fter hearing the type of violence involved in [Lewis's] assault" of the manager, the court "guess[ed]" that the manager had suffered a "mild concussion." J.A. 52-53. Because the manager "just has to have an injury that caused him to seek medical attention, and he did," the enhancement applied. J.A. 53.
Lewis then pivoted to a series of arguments in support of a five-month downward variance. But the court denied his request and sentenced Lewis to a total of 130 months' imprisonment: 46 months for Counts I and II, to be served concurrently, followed by 84 months for Count III, to be served consecutively. Lewis timely filed a notice of appeal.
II.
On appeal, Lewis challenges only the procedural reasonableness of his sentence. This Court "review[s] a defendant's sentence 'under a deferential abuse-of-discretion standard.'" United States v. Lynn, 912 F.3d 212, 216 (4th Cir.) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)), cert. denied, 140 S.Ct. 86 (2019).
5
We review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Davis, 679 F.3d 177, 182 (4th Cir. 2012). In determining whether a sentence is procedurally reasonable, we consider "whether the district court properly calculated the defendant's advisory guidelines range, gave the parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) factors, and sufficiently explained the selected sentence." United States v. Ross, 912 F.3d 740, 744 (4th Cir. 2019) (citing Gall, 552 U.S. at 49-51).
Lewis argues that his sentence is procedurally unreasonable because the district court (1) erroneously calculated his Guidelines range when it applied the bodily injury enhancement, and (2) failed to address some of his nonfrivolous arguments for a below-Guidelines sentence. We reach only the first argument because we conclude that the district court erred in applying the bodily injury enhancement and vacate and remand on that basis.
A.
We begin with the legal background for the bodily injury enhancement. The Sentencing Guidelines prescribe a two-level increase to a defendant's offense level for a robbery if "any victim sustained bodily injury." U.S.S.G. § 2B3.1(b)(3)(A) (2016). "Bodily injury" is defined in the Guidelines commentary as "any significant injury." Id. § 1B1.1 cmt. n.1(B). The term "significant injury" is not defined, but the Guidelines commentary provides two nonexhaustive examples of qualifying injuries: "an injury that is painful and obvious," or an injury "of a type for which medical attention ordinarily would be sought."
6
Id. This commentary is binding on us. See United States v. Lancaster, 6 F.3d 208, 209 (4th Cir. 1993) (per curiam) (citing Stinson v. United States, 508 U.S. 36, 41-44 (1993)).
This Court carefully considered the meaning of "significant injury" in United States v. Lancaster.3 Because this term, "by its open-ended nature, cannot be defined with exactitude," we held that "[w]hether an injury is 'significant' . . . should not be determined by a precise standard meted out at the appellate level and mechanically applied by the district court." Id. at 210. The trial judge is "far be[tter]-situated" to determine whether the "multitude" of "articulable" and "intangible" factors presented add up to a "significant injury." Id. However, we did provide some "general guidance" for district courts applying this standard. Id.
To start, though a significant injury "need not interfere completely...
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