United States v. Francisco Gasca-Ruiz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 14-50342

Plaintiff-Appellee, 14-50343

v. D.C. Nos.

3:14-cr-00958-GPC-1

FRANCISCO JAVIER GASCA- 3:12-cr-01124-GPC-1

RUIZ,

Defendant-Appellant. OPINION

Appeals from the United States District Court

for the Southern District of California

Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted En Banc January 12, 2016

Pasadena, California

Filed April 5, 2017

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.

O’Scannlain, M. Margaret McKeown, William A. Fletcher,

Ronald M. Gould, Jay S. Bybee, Carlos T. Bea, N. Randy

Smith, Paul J. Watford, Andrew D. Hurwitz, and

Michelle T. Friedland, Circuit Judges.

Opinion by Judge Watford;

Concurrence by Judge Hurwitz

2 UNITED STATES V. GASCA-RUIZ

SUMMARY*

Criminal Law

The en banc court affirmed the district court’s sentencing

determination in a case this court took en banc to resolve an

intra-circuit conflict over the standard of review that applies

when this court reviews a district court’s application of the

United States Sentencing Guidelines to the facts of a given

case.

The en banc court held that, as a general rule, a district

court’s application of the Sentencing Guidelines to the facts

of a given case should be reviewed for abuse of discretion.

The en banc court wrote that there is at least one exception to

the general rule: the determination whether a defendant’s

prior conviction is for a “crime of violence,” as required

under some provisions of the Guidelines, remains subject to

de novo review.

Reviewing de novo whether the district court identified

the correct legal standard in applying U.S.S.G.

§ 2L1.1(b)(7)(A) in this case, the en banc court concluded

that it did. The en banc court held that in applying

§ 2L1.1(b)(7)(A) to the undisputed facts of this case, the

district court did not abuse its discretion in concluding that

the standard for bodily injury had been met.

Judge Hurwitz, joined by Judge W. Fletcher, concurred in

part and concurred in the result. He wrote that whether

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. GASCA-RUIZ 3

reviewed de novo or with deference, the district court’s

determination was plainly correct, and he would therefore

leave for another day the issue of appropriate standard of

review.

COUNSEL

Vincent J. Brunkow (argued) and Ryan V. Fraser, Federal

Defenders of San Diego, Inc., San Diego, California, for

Defendant-Appellant.

Peter Ko (argued), Chief, Appellate Section, Criminal

Division; Benjamin J. Katz, Assistant United States

Attorney; Laura E. Duffy, United States Attorney; United

States Attorney’s Office, San Diego, California; for

Plaintiff-Appellee.

OPINION

WATFORD, Circuit Judge:

We took this case en banc to resolve an intra-circuit

conflict over the standard of review that applies when we

review a district court’s application of the United States

Sentencing Guidelines to the facts of a given case. We

conclude that as a general rule such decisions should be

reviewed for abuse of discretion.

I

The defendant in this case, Francisco Gasca-Ruiz, pleaded

guilty to transporting undocumented immigrants in violation

4 UNITED STATES V. GASCA-RUIZ

of 8 U.S.C. § 1324. The facts relevant to his sentencing

proceeding are undisputed, as they are drawn solely from a

Presentence Report whose accuracy neither party challenged.

Gasca-Ruiz was arrested by Border Patrol officers

conducting surveillance operations near the United States-

Mexico border. They spotted him driving suspiciously and

saw him pick up five passengers. Some time later, after

Gasca-Ruiz pulled over, two of the passengers got out of the

car and climbed into the trunk. When the officers tried to

stop Gasca-Ruiz’s car, he led them on a high-speed chase

during which he ran a red light, almost struck another vehicle,

and drove airborne over a drainage ditch. The chase ended

when Gasca-Ruiz blew out the passenger-side tires while

attempting to drive over a curb. Officers apprehended Gasca-

Ruiz after a brief foot chase and detained him along with the

five passengers in the car.

The sentencing issue raised on appeal centers on the

extent of the injuries suffered by one of the passengers

trapped in the trunk. What we know on this subject comes

from two paragraphs in the Presentence Report, which we

will simply quote in full:

13. The MWs [material witnesses] in the

trunk reported their bodies were bouncing

around in the trunk compartment. They

further said it was difficult to breathe because

the trunk began to fill with different types of

fumes burning from the vehicle. One of the

MW’s reported he was screaming it was too

hot inside and stated he was getting burned.

He informed he pounded on the interior of the

trunk, but no one responded. The MWs said

UNITED STATES V. GASCA-RUIZ 5

they were unable to exit the trunk of the

vehicle without the assistance from the law

enforcement officers.

14. One of the MWs in the trunk suffered

mild lacerations to his fingers from trying to

escape and a minor burn on his forearm from

the trunk compartment overheating. His

injuries were treated at the U.S. Border Patrol

station in El Centro; however, he refused to

receive any medical attention.

Based on these facts, the Presentence Report

recommended imposing the sentencing enhancement in

§ 2L1.1(b)(7) of the Sentencing Guidelines. That provision

calls for a two-level increase in the defendant’s offense level

if any person sustained “bodily injury” as a result of the

offense, a four-level increase if “serious bodily injury”

resulted, or a six-level increase if “permanent or life-

threatening bodily injury” resulted. U.S.S.G.

§ 2L1.1(b)(7)(A)–(C). The Presentence Report recommended

the two-level increase for “bodily injury,” which the

Guidelines define 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.” § 1B1.1, comment.

n.1(B). (By way of comparison, the Guidelines define

“serious bodily injury” as “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.” § 1B1.1, comment. n.1(L).)

Over Gasca-Ruiz’s objection, the district court imposed

the two-level increase for bodily injury under

6 UNITED STATES V. GASCA-RUIZ

§ 2L1.1(b)(7)(A). The court explained that it found the

provision applicable because one of the passengers in the

trunk sustained “several lacerations on his body and a small

burn on his right arm.” The court further explained that the

passenger “reported it was difficult to breathe because the

trunk began to fill with differing types of fumes. He was

screaming. It was too hot inside. And he stated he was

getting burned.” The court sentenced Gasca-Ruiz to 37

months in prison, the high end of the resulting advisory

Guidelines range.

On appeal, Gasca-Ruiz contends that the district court

improperly imposed the two-level increase for bodily injury.

In his view, the mild lacerations and minor burn suffered by

the passenger in the trunk are not “significant” injuries, as

§ 2L1.1(b)(7)(A) requires. In his briefs before the three-

judge panel, Gasca-Ruiz urged the court to review the district

court’s application of § 2L1.1(b)(7)(A) to the facts of his case

de novo. The government countered that we should review

the district court’s decision deferentially. Both sides were

able to cite cases supporting their respective positions

because a longstanding intra-circuit conflict exists on this

issue. Some of our cases have said that we review de novo a

district court’s application of the Guidelines to the facts,

while other cases have held that guideline-application

decisions are reviewed deferentially for abuse of discretion.

See United States v. Staten, 466 F.3d 708, 713 n.3 (9th Cir.

2006) (noting the conflict).

In most cases, the standard of review does not affect the

outcome, which is why many three-judge panels in the past

have been able to side-step this issue. See, e.g., United States

v. Tanke, 743 F.3d 1296, 1306 (9th Cir. 2014); United States

v. Garcia, 497 F.3d 964, 969 (9th Cir. 2007). The three-judge

UNITED STATES V. GASCA-RUIZ 7

panel in this case, however, thought that the standard of

review could be dispositive. The panel sua sponte called for

the case to be heard en banc, and a majority of the judges in

active service agreed to do so in order to resolve the intra-

circuit conflict over the proper standard of review.1

II

A district court’s decision to apply (or not apply) a

particular provision of the Sentencing Guidelines involves

three distinct components. First, the district court must

identify the correct legal standard, a task that typically entails

selecting and properly interpreting the right Guidelines

provision. Second, the court must find the relevant historical

facts, meaning the facts that answer primarily “what

happened” types of questions (who, what, when, where, why,

etc.). And third, the court must apply the appropriate

guideline to the facts of the case—that is, decide whether the

set of historical facts as found satisfies the governing legal

standard.

Our cases uniformly hold that we review the district

court’s identification of the correct legal standard de novo and

the district court’s factual findings for clear error. An intra-

circuit conflict has arisen only with respect to the third

component: application of the Guidelines to the facts. Most

of our cases have held that we review guideline-application

1

Gasca-Ruiz also raises a second, completely separate issue

concerning the alleged denial of his right to allocution at sentencing.

Because Gasca-Ruiz was afforded an adequate opportunity to address the

court before the sentence was imposed, we summarily reject his arguments

on this issue. See United States v. Allen, 157 F.3d 661, 666 (9th Cir.

1998).

8 UNITED STATES V. GASCA-RUIZ

decisions for abuse of discretion, but some of our cases state

that we review such decisions de novo.

We conclude that, as a general rule, a district court’s

application of the Sentencing Guidelines to the facts of a

given case should be reviewed for abuse of discretion. To the

extent our prior cases state otherwise, they are overruled. We

will explain in a moment our reasons for reaching this

conclusion, but it will help to clarify at the outset the

distinction between the first and third components mentioned

above—identifying the correct legal standard on the one hand,

and applying that standard to the facts of a given case on the

other.2

A

In most Sentencing Guidelines appeals, the applicable

legal standard is supplied by the Guidelines themselves. So

to determine whether the district court identified the correct

legal standard, we review whether the court selected the right

Guidelines provision in the first instance and whether the

court correctly interpreted the meaning of that provision. To

arrive at the governing legal standard, district courts usually

need to do little more than consult the text of the applicable

guideline and its accompanying commentary. Sometimes,

though, when confronted with a factual scenario not explicitly

2

We have not always been vigilant in keeping these two components

distinct. For example, in many of the cases in which we have stated that

a district court’s “application” of the Guidelines is reviewed de novo, what

we actually reviewed was whether the district court identified the correct

legal standard. See, e.g., United States v. Crawford, 372 F.3d 1048, 1053,

1061–62 (9th Cir. 2004) (en banc) (vacating the defendant’s sentence

because the district court did not apply the legal standard established by

circuit precedent).

UNITED STATES V. GASCA-RUIZ 9

addressed by the guideline’s text or commentary (or by

binding precedent construing them), district courts may need

to engage in further “norm elaboration” before applying the

guideline to the facts of the case at hand. See Henry P.

Monaghan, Constitutional Fact Review, 85 Colum. L. Rev.

229, 236–37 (1985). That occurs when, in the course of

rendering its decision, the district court formulates or adopts

a generalized rule that will apply to an entire class of cases,

not just to the case at hand. We will review the district

court’s formulation or adoption of such rules de novo,

because any error in formulating or adopting a rule of general

application necessarily results in a failure to identify the

correct legal standard.

We can offer a few examples of the sorts of generalized

rules that district courts have formulated in the course of

applying particular provisions of the Guidelines, which we

have then reviewed de novo. In United States v. Latimer,

991 F.2d 1509 (9th Cir. 1993), the district court decided that,

as used in the career offender guideline, “incarceration”

includes confinement in a community treatment center. Id. at

1510–11. In United States v. O’Brien, 50 F.3d 751 (9th Cir.

1995), the district court held that the Guidelines’ vulnerable-

victim enhancement applies regardless of whether the

defendant specifically targeted the victims because they were

vulnerable. Id. at 756. And in United States v. Jennings,

439 F.3d 604 (9th Cir. 2006), the district court concluded that

the statement “I have a gun,” when made during the course of

a robbery without anything more, is insufficient as a matter

of law to trigger the Guidelines’ threat-of-death enhancement.

Id. at 607–08. The rules formulated by the district courts in

each of these cases were rules of general application not

limited to the specific facts of the cases before them. We

properly reviewed the rule-formulation aspect of the district

10 UNITED STATES V. GASCA-RUIZ

courts’ decisions de novo as part of the inquiry into whether

the courts had correctly interpreted the Guidelines and thus

identified the correct legal standard. When, in the course of

rendering its decision, the district court formulates or adopts

a broad general rule—such as deciding that confinement in a

community treatment center is always or never

incarceration—de novo review of that aspect of the decision

is appropriate.

We can now shift to the component of the district court’s

decision at issue in this appeal: the decision to apply (or not

apply) a particular guideline to the facts of a given case.

Guideline-application decisions, in the sense we refer to them

here, arise only after the district court has identified the

correct legal standard and properly found the relevant

historical facts. At that point, there is often room for

judgment in deciding whether the specific constellation of

facts at issue meets the governing legal standard. As is true

in other contexts, the more general the standard set by the

Guidelines, “the more leeway courts have in reaching

outcomes in case-by-case determinations.” Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004); see also Monaghan,

supra, 85 Colum. L. Rev. at 236 (“The more general the rule,

the larger the domain for judgment.”). Under the standard of

review we adopt today, this last component of the district

court’s decision—deciding whether a specific set of facts

satisfies the correctly identified legal standard—will

generally be subject to review for abuse of discretion.

B

Having clarified what we mean by guideline-application

decisions, we can explain why we believe such decisions

should be reviewed deferentially rather than de novo.

UNITED STATES V. GASCA-RUIZ 11

In deciding which standard of review should govern, the

most important consideration is whether district courts or

courts of appeals are better situated to make guideline-

application decisions in the first instance. See Miller v.

Fenton, 474 U.S. 104, 114 (1985). If district courts are better

situated to do so, and we believe they are, then adopting a

deferential standard of review is the most prudent course.

That conclusion is supported by Buford v. United States,

532 U.S. 59 (2001), which held that one particular guideline-

application decision—deciding whether two prior convictions

are “related” for purposes of the career offender

guideline—should be reviewed deferentially on appeal. Id.

at 60. We think the Court’s reasoning in Buford applies with

equal force to guideline-application decisions more generally.

The defendant in Buford pleaded guilty to armed robbery

and faced sentencing under the career offender provisions of

the Guidelines, which apply if the defendant has at least two

prior convictions for violent or drug-related felonies.

U.S.S.G. § 4B1.1(a). The Guidelines provided that if prior

convictions were “related” to one another, they would be

treated as a single conviction for purposes of the career

offender guideline. Buford, 532 U.S. at 60–61. The

accompanying commentary stated that convictions would be

deemed “related” if they were consolidated for sentencing.

Id. at 61. The Seventh Circuit, the jurisdiction in which the

case arose, had established a specific standard for

determining whether prior convictions were consolidated for

sentencing called “functional consolidation.” Id. The

defendant did not dispute that the district court had identified

the correct legal standard—the Seventh Circuit’s “functional

consolidation” standard. Nor did she contest any of the

relevant historical facts. She challenged only the district

12 UNITED STATES V. GASCA-RUIZ

court’s application of the governing legal standard to the facts

of her case. Id. at 63.

The Supreme Court held that the district court’s

consolidation determination—an “application of the

Guidelines to the facts”—should be reviewed deferentially on

appeal rather than de novo. Id. That rule made sense, the

Court reasoned, because “the district court is in a better

position than the appellate court to decide whether a

particular set of individual circumstances demonstrates

‘functional consolidation.’” Id. at 64. District courts make

far more functional consolidation determinations than

appellate courts do and thus are likely to be more familiar

with the nuts and bolts that go into making such

determinations. And deciding whether the standard for

functional consolidation has been satisfied “depend[s] heavily

upon an understanding of the significance of case-specific

details,” a matter over which district courts again have an

institutional advantage. Id. at 65.

The Court recognized that adopting a deferential standard

of review would sacrifice a measure of uniformity in

application of the career offender guideline. But the Court

concluded that concerns with ensuring uniformity, which

ordinarily weigh in favor of de novo review, did not carry

significant weight in this context. The guideline-application

aspect of the district court’s decision did not involve

establishment of a rule of general application; it involved

only an issue that “grows out of, and is bounded by, case-

specific detailed factual circumstances.” Id. Fact-bound

determinations of that sort limit the uniformity-producing

value of de novo appellate review. Id. at 65–66. (The Court

has elsewhere noted that “[f]act-bound resolutions cannot be

made uniform through appellate review, de novo or

UNITED STATES V. GASCA-RUIZ 13

otherwise.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,

405 (1990) (internal quotation marks omitted).) And to the

extent greater uniformity is necessary, the Court stated, the

Sentencing Commission can provide it by making

adjustments to the Guidelines or the accompanying

commentary. Buford, 532 U.S. at 66.3

The Court’s reasoning in Buford, although offered with

respect to one guideline-application decision in particular,

extends in our view to guideline-application decisions more

generally. District courts are better situated than appellate

courts to make the fact-specific determinations inherent in

virtually all guideline-application decisions. District courts

make far more guideline-application decisions of all sorts, see

Koon v. United States, 518 U.S. 81, 98 (1996), and thus are

likely to be more familiar with the nuances that go into

applying Guidelines provisions across the board. Guideline-

application decisions, as we have defined them, almost

always “depen[d] heavily upon an understanding of the

significance of case-specific details,” Buford, 532 U.S. at 65,

because once the district court has identified the correct legal

standard and properly found the relevant historical facts, all

that remains is the fact-bound judgment as to whether a

3

We are aware that Buford relied in part on 18 U.S.C. § 3742(e),

which states that courts of appeals “shall give due deference to the district

court’s application of the guidelines to the facts.” The circuits are divided

on whether the “due deference” provision of § 3742(e) survived the

Supreme Court’s subsequent decision in United States v. Booker, 543 U.S.

220, 259 (2005). See, e.g., United States v. Richards, 674 F.3d 215, 219

n.2 (3d Cir. 2012) (holding that § 3742(e)’s “due deference” provision

survives Booker); United States v. Lopez-Urbina, 434 F.3d 750, 763 n.1

(5th Cir. 2005) (holding that it does not). Because we conclude that

guideline-application decisions should be reviewed deferentially anyway,

we need not decide which side of the circuit split to join.

14 UNITED STATES V. GASCA-RUIZ

specific set of facts satisfies the governing legal standard. In

the Sentencing Guidelines context in particular, that is a

judgment district courts are uniquely qualified to make. Each

guideline-application decision is ultimately geared toward

assessing whether the defendant before the court should be

viewed as more or less culpable than other offenders in a

given class. In light of their experience sentencing

defendants on a day-in-and-day-out basis, district courts

possess an institutional advantage over appellate courts in

making such culpability assessments. See Koon, 518 U.S. at

98.

Finally, the case-specific determinations inherent in

guideline-application decisions have limited precedential

value, a factor that ordinarily cuts against requiring de novo

appellate review. See Thompson v. Keohane, 516 U.S. 99,

114 & n.14 (1995). Independent review of fact-bound

determinations seldom yields an adequate return on the

investment of appellate resources required, because such

review will generally “fail to produce the normal law-

clarifying benefits that come from an appellate decision on a

question of law.” Pierce v. Underwood, 487 U.S. 552, 561

(1988).

Adopting abuse of discretion as the standard of review for

guideline-application decisions will not result in a dramatic

change in our circuit’s law. As noted earlier, in many of the

cases in which we stated that the district court’s “application”

of the Guidelines would be reviewed de novo, what we

actually reviewed was whether the district court had

identified the correct legal standard. De novo review will

continue to apply in such cases under the rule we adopt today.

And while some of our decisions have classified particular

guideline-application decisions as “factual” determinations

UNITED STATES V. GASCA-RUIZ 15

subject to clear error review, see, e.g., United States v.

Hurtado, 760 F.3d 1065, 1068 (9th Cir. 2014); United States

v. Miguel, 368 F.3d 1150, 1156 (9th Cir. 2004), those cases

would not come out any differently. The guideline-

application determinations in those cases would now be

reviewed for abuse of discretion rather than clear error, but in

this context the two standards are functionally the same. See

Cooter & Gell, 496 U.S. at 401.

The general rule we have established is subject to a

proviso, as most general rules are. Guideline-application

decisions should almost always be reviewed deferentially for

abuse of discretion, but there is at least one situation in which

de novo review is appropriate: determining whether a

defendant’s prior conviction is for a “crime of violence,” as

required under some provisions of the Guidelines. See, e.g.,

U.S.S.G. §§ 2L1.2(b)(1)(A)(ii), 2S1.1(b)(1)(B)(ii). We have

consistently held that such determinations are reviewed de

novo, see, e.g., United States v. Grajeda, 581 F.3d 1186, 1188

(9th Cir. 2009), and we see no reason to change that rule,

even if we view the crime-of-violence determination as a

guideline-application decision. Viewed from that

perspective, the Guidelines provide a definition of “crime of

violence” and the categorical approach used to make that

determination is now well settled, so the correct legal

standard will not be in dispute. All the district court must

decide is whether a particular conviction satisfies the

standard. But the categorical approach requires the crime-of-

violence determination to be made on a categorical

basis—either all convictions under a particular statute qualify

or none do. See Descamps v. United States, 133 S. Ct. 2276,

2287 (2013). Nothing turns on the particulars of the

defendant’s own prior offense. In that sense, determining

whether a particular conviction qualifies as a crime of

16 UNITED STATES V. GASCA-RUIZ

violence is akin to formulating a rule of general application,

a matter properly reviewed de novo. We need not determine

at this juncture whether there are any other limited exceptions

to the general rule that guideline-application decisions are

reviewed for abuse of discretion.

III

The resolution of this appeal is straightforward under the

standard of review discussed above. We review de novo

whether the district court identified the correct legal standard,

and we conclude that it did. The court expressly referred to

the applicable provision of the Guidelines, § 2L1.1(b)(7)(A),

which establishes the governing legal standard—“bodily

injury” sustained as a result of the offense. The district court

did not, it is true, make an explicit reference to § 1B1.1,

whose commentary supplies the definition of “bodily injury,”

or to the terms used in that definition: “any significant

injury,” an injury that is “painful and obvious,” an injury that

is “of a type for which medical attention ordinarily would be

sought.” U.S.S.G. § 1B1.1, comment. n.1(B). As a matter of

best practices, district courts should make explicit reference

to the section number of the applicable Guidelines provision

or alternatively use the language of the provision in rendering

their decisions. That is the simplest way to ensure that the

record shows the court had in mind the correct legal standard.

But absent some indication that the district court had in mind

a different definition of “bodily injury,” and here there is

none, we will not assume that the court applied the wrong

legal standard when assessing the injuries sustained by the

passenger in Gasca-Ruiz’s car.

In the course of applying the legal standard established by

§ 2L1.1(b)(7)(A) to the facts of this case, the district court did

UNITED STATES V. GASCA-RUIZ 17

not formulate any rules of general application. The court

merely explained why, in its judgment, the specific set of

facts involved here satisfied the legal standard for “bodily

injury.” All that remains, then, is for us to determine whether

the district court abused its discretion in making that

judgment. (We would ordinarily review the district court’s

factual findings for clear error, but in this case the facts were

undisputed, so there is nothing for us to review on that front.)

The court abused its discretion only if its conclusion that the

passenger in the trunk sustained bodily injury is “illogical,

implausible, or without support in inferences that may be

drawn from facts in the record.” United States v. Hinkson,

585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

The district court did not abuse its discretion in

concluding that the standard for bodily injury had been met.

The passenger in the trunk sustained mild lacerations to his

fingers while trying to escape and a minor burn on his

forearm from contact with the overheated trunk compartment.

The inference that the passenger’s injuries were painful and

obvious is supported by facts in the record. The passenger

screamed that it was too hot inside the trunk and that he was

getting burned. Those facts support the inference that the

burn, at least, was painful. And the fact that both the burn

and the lacerations were noticed by the officers on the scene

supports the inference that the injuries were obvious.

Moreover, the fact that the officers offered the passenger

medical attention after treating the injuries as best they could

at the Border Patrol station supports the inference that the

injuries were of a type for which medical attention would

ordinarily be sought. That the passenger declined, for

whatever reason, to receive medical attention does not render

illogical or implausible the conclusion that the injuries were

18 UNITED STATES V. GASCA-RUIZ

of a type for which one ordinarily would seek medical

treatment.

AFFIRMED.

HURWITZ, Circuit Judge, with whom FLETCHER, Circuit

Judge, joins, concurring in part and concurring in the result:

As the court today correctly notes, “[i]n most cases, the

standard of review does not affect the outcome.” That is

true here. The district court found that the injuries suffered

by the victim—“several lacerations . . . and a small

burn”—warranted imposition of the bodily injury

enhancement in U.S. Sentencing Guidelines Manual

§ 2L1.1(b)(7)(A). Whether reviewed de novo or with

deference, the district court’s determination was plainly

correct. See U.S.S.G. § 1B1.1 cmt. n.1(B) (defining bodily

injury as any significant injury). I would therefore leave for

another day, and in a case where it matters to the outcome,

the interesting issue of the appropriate standard of review.