United States v. McDaniel ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-20610
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEON TARRAL MCDANIEL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CR H-95-235-1)
_________________________________________________________________
April 16, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Deon Tarral McDaniel appeals his guilty-plea
conviction and sentence for bank robbery and carrying a firearm
in connection with the robbery. Finding no error, we affirm.
I. BACKGROUND
In August 1995, McDaniel, along with his three codefendants
Samora Ahmed-Hafam Edwards, Louis Bernard Davis, and Howard Earl
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Thomas, entered Bank One in Missouri City, Texas, yelling
obscenities, making threats, and announcing a hold up. Present
during the robbery were bank manager Elva Vasquez, tellers Kim
Mullen and Sunita Kalsi, financial sales representative Jill
Sheppard, contract maintenance man Gregory Martin, and customers
Tamara Curvey and Herman Gillman. When the robbery began,
Vasquez activated the silent alarm and got under her desk along
with one of the customers. Two of the defendants threw Mullen
and Kalsi to the floor and then screamed for someone to open the
vault. One of the men asked Kalsi for the key to the vault,
grabbing her by the hair and hitting her in the head with his
fist as he made the request. When Kalsi informed the robber that
the manager had the keys, the robber dragged Curvey by the hair
from her hiding place under Vasquez’s desk and shoved her to the
floor. The defendants threatened to kill someone if keys were
not produced. Vasquez told the defendants that she had the keys
to the vault. Upon learning this, one of them grabbed Vasquez by
the hair and dragged her to the vault. Meanwhile another
defendant bound the hands of the tellers and of Martin with duct
tape. Martin was hit in the back of the head and neck with a
pistol butt. When the defendants discovered that Vasquez did not
have the combination to the vault, one of them struck her on the
left side of her face, dislocating her jaw, and threatened to
kill her. Kalsi was then dragged by the hair to the vault to
provide the combination. Kalsi was hit on the head and had the
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duct tape ripped from her hands. The robbers were told that the
vault could not be opened because of a time delay. Upon learning
this, the defendants again struck Vasquez and Kalsi in the head.
The defendants took money from the tellers’ drawers and fled as
police arrived.
The defendants entered a waiting car and left the bank’s
parking lot with the police in pursuit. As they sped away, they
fired upon Missouri City police officer J. H. Lemerond. The
chase proceeded to a residential neighborhood where the
defendants continued their gunfire. When two officers
established a roadblock, defendants, firing approximately two
rounds, drove past the road block, onto a curb, over a mailbox,
and down a residential road.
Neighborhood resident Kim Vo was out in her yard and had to
run inside to avoid gunfire. After passing Vo, the car cut
between two houses that border a golf corse. The car slowed;
Thomas and Edwards jumped out of the vehicle and into a water
hazard where they were apprehended. McDaniel and Davis continued
their flight in the car. When the car drove past resident
Jennifer Marie Burkhalter and her sixteen month old son, one of
them opened the door and pointed a gun.
The car stopped after a near-collision with a police car
forced it into a nearby yard. Davis immediately surrendered, but
McDaniel continued his flight on foot before he was apprehended.
Lab reports showed that Thomas and McDaniel’s hands contained
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trace metals consistent with firing a weapon, handling a fired
weapon, or being in immediate proximity to a fired weapon.
All four defendants pleaded guilty. McDaniel received 355
months imprisonment, five years of supervised release on count
one (robbery), two concurrent years supervised release on count 2
(use of a firearm during a crime of violence), a fine of $10,000,
restitution in the amount of $5403.51, and a special assessment
of $100.
McDaniel timely appealed. On appeal, McDaniel argues that
the district court erred in increasing his offense level under
section 2B3.1 of the Sentencing Guidelines based on serious
bodily injury to a victim -- Vasquez -- because Vasquez’s
injuries were not “serious” and because that section of the
Sentencing Guidelines is unconstitutionally vague. McDaniel also
argues that the district court failed to follow the requirements
of Rule 11 of the Federal Rules of Criminal Procedure when it
took his plea. We reject each of these arguments.
II. DISCUSSION
A. The trial court did not clearly err in determining that
Vasquez suffered serious bodily injury.
The Sentencing Guidelines provide for a two level increase
if, during a robbery, a victim sustained bodily injury or a four
level increase if a victim suffered serious bodily injury. U.S.
SENTENCING GUIDELINES MANUAL § 2B3.1(b)(3) (1995) [hereinafter USSG].
McDaniel argues that the district court erred in applying the
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adjustment because the injuries Vasquez suffered were not serious
and so he should thus only be subjected to a two-level increase
for bodily injury.
The seriousness of Vasquez’s injuries “is a fact inquiry
reviewable only for clear error.” United States v. Davis, 19
F.3d 166, 171 (5th Cir. 1994). “Bodily injury” is defined 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 commentary at 1(b). In contrast,
“serious bodily injury” is an “injury involving extreme physical
pain or the impairment of a function of a bodily member, organ,
or mental faculty; or requiring medical intervention such as
surgery, hospitalization, or physical rehabilitation.” Id. at
1(j).
The probation officer described Vasquez’s injury in the
following manner:
Following the robbery, Vasquez went to her dentist
. . . who advised that her jaw had been dislocated.
She was referred to an oral surgeon [who] . . . .
verified the dislocated jaw, but indicated that the jaw
had worked its way back into a normal position and no
surgery would be required. . . . Vasquez stated that
she was unable to fully open her mouth or eat “regular”
food for 90 days. She also experienced severe
headaches, sleeplessness, nightmares and anxiety for
approximately 90 days following the robbery.
Vasquez returned to work the next day.
McDaniel concedes that such an injury is a bodily injury but
denies that it is a serious one. Although Vasquez did not
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require hospitalization or rehabilitative service, the use of her
jaw was impaired, as described in n.1(j), for ninety days. As
the First Circuit recently noted, “[t]o impair, generally, means
to diminish or decrease,” and there is no requirement of
duration. United States v. Page, 84 F.3d 38, 43 (1st Cir. 1996).
The evidence shows that Vasquez’s dislocated jaw prevented normal
use of her mouth for ninety days. Based on this evidence, the
district court did not clearly err in determining that the
dislocation diminished the functioning of her mouth and jaw,
therefore meeting the definition of “serious bodily injury.”
B. The Sentencing Guideline is not unconstitutionally
vague.
McDaniel argues that the definition of “serious bodily
injury” is unconstitutionally vague because it does not provide
an objective criteria to aid the fact-finder in determining
whether an injury involves extreme pain and, thus, constitutes a
serious bodily injury. McDaniel contends that the resulting
subjective analysis used by the fact-finder will produce
disparate results and, as a result, the definition will not
provide an offender fair warning of proscribed conduct.
We find McDaniel’s argument meritless because the district
court’s finding that Vasquez’s injuries were serious can be
supported under the bodily function impairment prong without
reference to the extreme pain prong of the serious bodily injury
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definition. Thus, McDaniel’s vagueness contention has no bearing
on this case.
C. The district court did not commit any harmful error
under Rule 11 in taking McDaniel’s plea.
McDaniel pleaded guilty, and at his plea hearing, the court
advised him of the applicable sentencing guidelines for count 2
in the following manner:
The Court: Count 2, violation of Title 18,
United States Code, Section 924(c)(1), which
is use of a firearm during and in relation to
a crime of violence. The penalty range is a
consecutive sentence of five years. And if
the firearm used is a short barreled rifle,
short barreled shotgun or a semi-automatic
assault weapon, a consecutive sentence of 10
years. Sentencing Guidelines will apply to
that Count also. There is a supervised
release period not to exceed three years.
And on each Count, Count 1 and Count 2,
there’s a $50 Special Assessment for a total
of $100.
Now, “consecutive sentence,” for those
of you who may be familiar or not familiar
with the term, means a stacked sentence.
That’s a different slang term that we use in
the legal system. Make sure you understand.
That sentence is going to be stacked on top
of the one I give you in Count 1. That’s
what “consecutive” means. You serve the term
on Count 1, whatever term you end up getting,
and then you have to serve five years on
Count 2.
(emphasis added). McDaniel argues that the trial court erred in
the last statement by telling him that he would be subject to a
five year minimum penalty on count 2 when he was really subject
to a ten year minimum penalty. McDaniel claims this violates
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Rule 11, which requires the trial court to inform the defendant
of the mandatory minimum and maximum penalties before accepting a
guilty plea.
It is unclear if the trial court actually committed an error
in the plea colloquy because the court initially told McDaniel
the correct penalty range. While the court later may have made a
misstatement, it was in the context of defining what
“consecutive” means, not in informing McDaniel of the penalty
range.
Assuming arguendo that the trial court did err, we conclude
that the error is not reversible because McDaniel was not harmed.
The circumstances indicate that McDaniel knew the correct penalty
to which he was subject. The probation officer recommended ten
years for count 2, and not once did McDaniel complain that he had
misunderstood the potential penalty or seek to withdraw his
guilty plea. McDaniel never even argues that if he had received
the correct information, it would have impacted his decision to
plead guilty. A Rule 11 error is not harmful unless “the
defendant’s knowledge and comprehension of the full and correct
information would have been likely to affect his willingness to
plead guilty.” United States v. Johnson, 1 F.3d 296, 302 (5th
Cir. 1993)(en banc). Thus, any Rule 11 error the trial court may
have committed is harmless.
III. CONCLUSION
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For the forgoing reasons, we AFFIRM McDaniel’s guilty-plea
conviction and sentence.
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