The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4759
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIN ALEXANDER BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:05-cr-00027-jpj)
Submitted: July 23, 2008 Decided: September 25, 2008
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Joel C. Hoppe, Assistant
Federal Public Defender, Abingdon, Virginia, for Appellant. John
L. Brownlee, United States Attorney, Zachary T. Lee, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Darin Alexander Brown was
convicted of assaulting a correctional officer and causing bodily
injury, in violation of 18 U.S.C.A. §§ 111(a)(1) (West 2000 & Supp.
2008) and 111(b) (West 2000 & Supp. 2008) (Count One) and engaging
in conduct that was more than simple assault, in violation of 18
U.S.C. § 111(a)(1) (Count Two). During Brown’s sentencing hearing,
the district court denied Brown’s Fed. R. Crim. P. 29 motion,
sustained a portion of Brown’s objections to the calculation of his
guidelines range, and sentenced Brown to two concurrent sixty-month
sentences. Brown timely noted his appeal.
On appeal, Brown first contends that the district court
erred in denying his Rule 29 motion for judgment of acquittal
because the evidence was insufficient to support the finding that
the correctional officers sustained “bodily injury”. This court
reviews a district court’s decision to deny a Rule 29 motion de
novo. United States v. Midgett, 488 F.3d 288, 297 (4th Cir. 2007).
Where, as here, the motion was based on a claim of insufficient
evidence, “[t]he verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S. 60,
80 (1942); Midgett, 488 F.3d at 297. “[S]ubstantial evidence is
evidence that a reasonable fact finder could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond a
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reasonable doubt.” United States v. Delfino, 510 F.3d 468, 471
(4th Cir. 2007) (quoting United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc)). This court “can reverse a conviction
on insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006)
(en banc).
Prior to submitting the case to the jury, the district
court instructed the jury that the term bodily injury “means any
cut, abrasion, bruise, burn or disfigurement, physical pain,
illness, impairment of a bodily . . . member, organ, or mental
faculty, or any other injury to the body no matter how temporary.”
Assuming that the district court properly instructed the jury,* the
evidence, viewed in the light most favorable to the Government,
established the correctional officers suffered “bodily injury”
sufficient to sustain Brown’s conviction on Count One. At trial,
Correctional Officer Bolling testified that when Brown punched him
in the face he was dazed and stunned to the point that he did not
know what happened. Additionally, he had pain, redness, and a
headache that lasted for a few days for which he took Tylenol.
Also, Correctional Officer Meade testified that he had pain when
*
Although Brown challenged the accuracy of the jury
instructions in the district court, he has not raised this issue on
appeal. Rather, on appeal, we read his brief on this point as
contending only that the evidence adduced at trial was insufficient
to permit the jury to find that the definition of “bodily injury”
contained in the jury instructions had been satisfied.
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hit by Brown and had noticeable redness on his jaw. In
interpreting 18 U.S.C. § 242 (2000), this court has stated that
“physical pain alone or any injury to the body, no matter how
fleeting, suffices” to establish bodily injury. United States
v. Perkins, 470 F.3d 150, 161 (4th Cir. 2006). Accordingly, the
district court did not err in denying Brown’s Rule 29 motion as the
evidence was sufficient to sustain his conviction on Count One.
Brown next argues that the district court erred in
enhancing his sentence two levels for bodily injury pursuant to
U.S.S.G. § 2A2.4. A determination by a district court concerning
whether a victim sustained bodily injury is a factual finding
reviewable under a clearly erroneous standard. United States
v. Isaacs, 947 F.2d 112, 114 (4th Cir. 1991). This deferential
standard of review requires reversal only if this court is “left
with the definite and firm conviction that a mistake has been
committed.” United States v. Stevenson, 396 F.3d 538, 542 (4th
Cir. 2005)(quoting Anderson v. Bessemer City, 470 U.S. 564, 573
(1985)).
The U.S. Sentencing Guidelines Manual defines “bodily
injury” as “any significant injury; e.g., any injury that is
painful and obvious, or is of a type for which medical attention
ordinarily would be sought.” U.S.S.G. § 1B1.1 cmt. n.1(B). In
United States v. Lancaster, 6 F.3d 208 (4th Cir. 1993), this court
stated that:
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whether an injury is “significant” thus should not be
determined by a precise standard meted out at the
appellate level and mechanically applied by the district
court. Rather, it should be determined by a very
factually-specific inquiry which takes into account a
multitude of factors, some articulable and some more
intangible, that are observable in hearing the evidence
presented on the injury. Because the district court
hears this evidence, it is by far best-situated to assess
these myriad factors and determine whether a “significant
injury” has occurred.
Lancaster, 6 F.3d at 210.
After reviewing the record, we cannot conclude that the
district court committed clear error in enhancing Brown’s sentence.
According to the evidence presented at trial, Meade experienced
pain when hit by Brown and had redness where he was struck.
Similarly, Bolling was dazed when hit by Brown and experienced
pain, redness and a headache that lasted for several days. These
injuries were sufficient to meet the definition of “bodily injury”
found in U.S.S.G. § 1B1.1 cmt. n.1(B). See United States
v. Isaacs, 947 F.2d 112, 114-15 (4th Cir. 1991). Accordingly, we
affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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