United States v. Bailey ( 2006 )


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  •                                                       United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                           REVISED MAY 23, 2006
                                                               February 13, 2006
                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit             Charles R. Fulbruge III
                                                                    Clerk
    
    
                              No.    04-31138
    
    
    
    
                        UNITED STATES OF AMERICA,
    
                                                    Plaintiff-Appellee
    
    
                                    VERSUS
    
    
                           CHRISTOPHER BAILEY,
    
    
                                                    Defendant-Appellant
    
    
    
              Appeal from the United States District Court
                  For the Western District of Louisiana
                              (03-50041-01)
    
    
    
    Before JONES, Chief Judge, and KING, and DENNIS, Circuit Judges.
    
    PER CURIAM:1
    
         The defendant, Christopher Bailey, appeals his conviction and
    
    sentence for committing cruelty to a juvenile at a place under the
    
    exclusive jurisdiction of the United States, in violation of 18
    
    
    
         1
           Pursuant to 5th CIR. R. 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    this opinion should not be published and is not precedent except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 5th CIR. R. 47.5.4.
    
                                      1
    U.S.C. §§ 7(3) and 13, incorporating La. Rev. Stat. § 14:93.     Mr.
    
    Bailey argues that the evidence was insufficient to support the
    
    jury’s findings that the crime was committed within the confines of
    
    Barksdale Air Force Base, a place under the exclusive jurisdiction
    
    of the United States, and that Mr. Bailey was the perpetrator of
    
    the crime.      Mr. Bailey also argues that the district court’s
    
    imposition of the maximum statutory sentence, 120 months, was
    
    unreasonable.     We find none of Mr. Bailey’s arguments convincing
    
    and affirm his conviction and sentence.
    
                                  Background
    
         In November and December of 2001, the defendant-appellant,
    
    Christopher Bailey, and his wife, Robin Bailey, lived with their
    
    infant son, P. B., on Barksdale Air Force Base near Shreveport,
    
    Louisiana.   Robin, an active duty senior airman, worked nights on
    
    the base.    Christopher, unemployed, stayed at home and cared for
    
    the baby, P.B..    The Baileys did not employ any child care worker,
    
    daycare, or babysitter, or have any relative care for the infant
    
    during this period.
    
         On December 14, 2001, at about 2:00 a.m., Christopher called
    
    his wife from their home on the base and told her that the baby’s
    
    “left arm moved where it shouldn’t move.”       She immediately left
    
    work and the two took the baby to the emergency room of a civilian
    
    hospital in Shreveport, Louisiana.         The emergency room doctor
    
    testified that Robin Bailey told him that the infant had not been
    
    
    
                                      2
    using his left arm for two days.       She also told the doctor that
    
    when she came home at about 5:30 a.m. on December 13, 2001, “she
    
    noticed that the infant was favoring his arm and when she picked
    
    him up, he would cry and he was more irritable.”    In addition, she
    
    had observed that he had switched which fist or thumb he sucked,
    
    from left to right hands, and noticed before leaving for work on
    
    the 13th that he was guarding his left arm.         The baby had no
    
    bruises or external signs of injury or physical abuse, but appeared
    
    to experience pain when the doctor “palpated or pressed on the area
    
    of his upper arm.”    The baby was slightly less than two months old.
    
    At this point in the emergency room visit, neither parent offered
    
    an explanation for the pain nor described any traumatic happening
    
    affecting the baby.
    
         Dr. Bounds, the emergency room doctor, ordered x-rays of the
    
    arm to help determine the cause of the pain.     The x-rays revealed
    
    a fracture of the left humerus, a bone in the upper arm. The
    
    fracture was described as “acute,” meaning recent, “displaced”
    
    meaning the two parts of the bone had moved apart, and painful.
    
    Further x-rays revealed another fracture, this one in the right
    
    ulna, one of two long bones between the wrist and elbow.        This
    
    fracture was non-displaced.
    
         Dr. Bounds suspected abuse because two fractures are unusual
    
    in an eight-week-old child.     The doctor called hospital security,
    
    as a precaution, and went to talk with the Baileys.    The emergency
    
    
    
                                       3
    room nurse described Robin Bailey’s behavior and concern as normal,
    
    she offered only one possible explanation, that perhaps the baby’s
    
    blanket had been wrapped too tight.2      In contrast, Christopher
    
    Bailey offered the initial explanation that he had rolled over on
    
    the baby accidentally while the two were napping on the couch four
    
    days earlier.     He then offered several other explanations to
    
    investigators as follows: “Maybe that he might have dropped or
    
    almost dropped [P.B.] and caught him by his arm when he was
    
    playing.    Maybe he slipped through his arms and he grabbed him by
    
    his arm.”   He also told an investigator that he may have pulled the
    
    child too hard to get him out of a car seat.   Christopher told the
    
    investigators that “[P.B.] had been favoring his left arm and
    
    crying more than normal for 2-3 days.”
    
         The emergency room doctor was required to report suspected
    
    abuse and notified both state and Air Force officials.      The Air
    
    Force and Louisiana Social Services sent investigators to the
    
    emergency room that morning.     The investigators interviewed the
    
    Baileys and the state took the infant into protective custody.
    
         Later in the investigation the government learned that the
    
    Baileys had taken the infant to the pediatric clinic on the Base in
    
    November because of what looked like a rash on his face and a
    
    scratch on his eye.    P.B. was then about a month old. The nurse
    
    practitioner who saw the baby that day also testified at trial.
    
         2
           Expert medical witnesses testified at trial that this
    could not have caused the baby’s injuries.
    
                                      4
    She testified that the rash on the baby’s face was “petechia” which
    
    she described as small bruises under the skin caused by trauma, or
    
    by coughing or vomiting.     The Baileys told her that the baby had
    
    not been either coughing or vomiting.             The nurse practitioner also
    
    noticed   a   “petechial   rash   in       a    linear   patter   on   the   arm.”
    
    Christopher told her that the baby had rolled off the couch.                  The
    
    nurse practitioner thought this was odd because one-month-old
    
    babies are not physically capable of rolling over.                      She also
    
    observed that while Robin was appropriately concerned, Christopher
    
    was increasingly nervous as she asked more questions.
    
          The nurse practitioner ordered a full skeletal x-ray.                  While
    
    nothing was detected at the time, during the investigation expert
    
    examination of those x-rays revealed something called a metaphyseal
    
    fracture in the infant’s right radius, which is the other long bone
    
    between the elbow and the wrist.               This fracture was described at
    
    trial as follows:
    
          It’s a fracture that is seen only in patients 18 months
          and younger. It occurs at the ends of the bone, where
          the bone is still growing. The bones grow in length from
          the ends. And this Fracture occurs transversely across
          this weak bone.    And it can be a very, very subtle
          fracture. It can be over looked without any problem.
    Dr.   Boos, an expert in child abuse, testified that P.B.’s
    
    metaphyseal was a classic metaphyseal fracture and further that:
    
          The classic metaphyseal fracture has been called the
          radiological finding that is most strongly associated
          with abuse, meaning there is no other thing you can find
          in an x-ray that presents stronger evidence -- no other
          single thing that you can find on an x-ray that presents
          stronger evidence of child abuse.        The accidental
    
    
                                           5
         fracture of this type is barely ever seen.
    
    
    Dr. Boos testified that this type of fracture is usually caused if
    
    the bones are “shaken or whipped side to side.”   He also testified
    
    that at his age, P.B. was incapable of inflicting this injury on
    
    himself.
    
         In addition to the testimony about the cause of the injuries
    
    to P.B., Dr. Boos also testified about the Baileys delay in seeking
    
    treatment.   He testified that the x-rays taken on December 14, 2001
    
    revealed that the fractures in both arms had occurred some time
    
    prior to December 14.    He stated that he was concerned about the
    
    delay in seeking treatment because “whenever there is a delay in
    
    care seeking for an injury as severe as this, as painful as this,
    
    then we would worry why someone is not bringing the child in, and
    
    with, that, worry about child abuse.”    He testified:
    
         Now, I would hope that any parent who has a child, a very
         young child, not quite two months, who stops using one
         extremity and has a change in temperament toward
         irritability would go to see the doctor. Certainly a
         parent who knew that onset immediately after a trauma
         event would be on even greater notice to do so.
    
    
    As discussed above, the Baileys told the Emergency Room doctor and
    
    investigators that they noticed at least some of P.B.’s symptoms
    
    two days before they brought him to the hospital or sought any
    
    medical attention.
    
         During the trial the defense raised the possibility that P.B.
    
    had a condition called osteogenesis imperfecta, “brittle bone”
    
    
                                      6
    disease.      P.B.’s    little   brother   had   been   evaluated   for   that
    
    condition and the results had been equivocal.             If P.B.’s little
    
    brother has the condition, which is genetic, there is a 50 percent
    
    chance that P.B. has it as well.           The radiologist who examined
    
    P.B.’s x-rays at the hospital in September testified that his bones
    
    looked normal for a two-month-old, except for the fractures.              Dr.
    
    Boos testified that P.B. did not have the characteristics of
    
    children with osteogenesis imperfecta (blue sclera, short for his
    
    age, etc.).
    
         An expert for the defense, Dr. Harold Chen, chief of perinatal
    
    genetics at the Louisiana Health Science Center in Shreveport,
    
    Louisiana, testified about the different types of osteogenesis
    
    imperfecta including Type IV, a milder form of the disease, which
    
    was once considered rare but now is “one of the most common
    
    variable forms.”       He testified that a child with Type IV would not
    
    necessarily have blue sclera or be abnormally short.           He, however,
    
    testified that he could not reach a conclusion about whether P.B.
    
    suffers from osteogenesis imperfecta of any type.
    
         Dr. Boos admitted that if a child sustained fractures in a
    
    presumably safe environment it “would suggest that his bones are
    
    more fragile.”    However, P.B.’s foster mother, who has had custody
    
    beginning in May of 2003, testified that since he had been in her
    
    custody P.B. had not suffered any broken bones or other medical
    
    problems.   She testified that she did not take any “special care”
    
    
    
                                          7
    with P.B. and that he engaged in usual activities for a child his
    
    age.
    
           At the conclusion of the trial the jury convicted Christopher
    
    Bailey and acquitted his wife.            At sentencing, the district court
    
    applied the, then mandatory, federal sentencing guidelines. The
    
    court used U.S.S.G. § 2A2.2, the guideline range for aggravated
    
    assault, finding it to be the most analogous guideline.                       The
    
    district court then upwardly departed from that range pursuant to
    
    U.S.S.G. § 5K2.21.
    
           The court’s upward departure was based on uncharged conduct
    
    discussed in the Pre-Sentence Report. Following the injury to P.B.
    
    and his removal from his parents’ custody, the state of Louisiana
    
    awarded custody to his paternal grandmother, who lived in Colorado
    
    Springs, Colorado.       Upon being discharged from the Air Force in
    
    2002, Robin Bailey, together with her husband, moved to Colorado.
    
    The Baileys lived with P.B. and his grandmother. In February 2003,
    
    they had a second child, A.B.. On May 24, 2003, the Baileys brought
    
    A.B.    to   an   emergency   room   in       Colorado.   X-rays   revealed    20
    
    fractures, including fractures to the femur, tibia, left ulna and
    
    ribs.    The fractures were in different states of healing.                   The
    
    doctors also noted bruising to the infant’s head and cheek.
    
           When asked for an explanation, Robin Bailey told the doctors
    
    that P.B. had osteogenesis imperfecta, even though physicians had
    
    already ruled it out as the cause of P.B.’s injuries, and opined
    
    
    
                                              8
    that it could be the cause of A.B.’s injuries as well.                        The
    
    attending physician found that the injuries were non-accidental,
    
    and thus, inconsistent with osteogenesis imperfecta.                 As noted at
    
    trial,   testing    of    A.B.    for   the    disease    was   equivocal.    The
    
    sentencing judge noted that A.B. had suffered no further injury
    
    once removed from his parent’s care.
    
         In addition, Christopher told the doctor that on the morning
    
    of May 24, at about 10:00 a.m., he noticed that A.B.’s leg appeared
    
    to be dislocated, but he and his wife left the baby with his
    
    grandmother in order to go house hunting and did not seek medical
    
    care until taking the child to the hospital at 5:00 p.m.                A.B. was
    
    removed from his parent’s custody.
    
          At sentencing the defendant argued that this uncharged crime
    
    or crimes had not been proven at trial, but offered no further
    
    evidence attempting to disprove the facts as reported in the PSR.
    
    The court sentenced Christopher to the statutory maximum, 120
    
    months imprisonment, to be followed by three years supervised
    
    release.   As noted above, Mr. Bailey appeals both his conviction
    
    and his sentence.
    
                                        Analysis
    
                                       Conviction
    
         Mr.   Bailey        claims   that       the   jury   was    presented   with
    
    insufficient evidence to support his conviction.                He contends that
    
    the government did not prove that the offense occurred in a place
    
    
    
                                             9
    under the exclusive jurisdiction of the United States, in this case
    
    Barksdale Air Force Base, as required by the Assimilative Crimes
    
    Act, 18 U.S.C. §§ 7(3) and 13.        He also argues that there was
    
    insufficient evidence to support the jury’s finding that he was the
    
    perpetrator of any alleged cruelty to a juvenile, including (1)
    
    that his acquitted wife was equally likely to be the perpetrator,
    
    (2) that there was insufficient proof of cruelty or abuse, (3) that
    
    there was insufficient proof that the child suffered unjustifiable
    
    pain or suffering, and (4) that there was insufficient proof that
    
    he intentionally or negligently failed to seek timely medical care
    
    for the child.   We are unconvinced by any, and all, of Mr. Bailey’s
    
    arguments and, therefore, affirm his conviction.
    
                             Standard of Review
    
         The defendant moved for acquittal following the government’s
    
    case-in-chief and at the close of all of the evidence, therefore,
    
    in reviewing the sufficiency of the evidence this court reviews
    
    denial of the motion for judgment of acquittal de novo. United
    
    States v. Greer, 
    137 F.3d 247
    , 249 (5th Cir. 1998).   To do so, the
    
    court determines whether, viewing all of the evidence in the light
    
    most favorable to the government, a rational trier of fact could
    
    have found that the elements of the offense were proven beyond a
    
    reasonable doubt.   Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979);
    
    United States v. Lopez, 
    74 F.3d 575
    , 577 (5th Cir. 1996); United
    
    States v. Meyers, 
    104 F.3d 76
    , 78 (5th Cir. 1997).      “Direct and
    
    
                                     10
    circumstantial evidence are given equal weight, and the evidence
    
    need not exclude every hypothesis of innocence.” United States v.
    
    Dien Duc Huynh, 
    246 F.3d 734
    , 742 (5th Cir. 2001)(citation and
    
    internal quotation marks omitted.)
    
                          Sufficiency of the Evidence
    
          First, Mr. Bailey argues that there was insufficient evidence
    
    to prove that the alleged offense occurred within the confines of
    
    Barksdale Air Force Base. Mr. Bailey assumes without discussion
    
    that the government must prove this ‘jurisdictional’ element beyond
    
    a reasonable doubt.     The government, however, points out United
    
    States v. Bell, a Fifth Circuit case from 1993 that has never been
    
    directly overruled.    
    993 F.2d 427
     (5th Cir. 1993).      Bell held that
    
    the   preponderance    of   the   evidence   standard   applies   to   the
    
    “exclusive or concurrent jurisdiction” element of the federal
    
    Assimilative Crimes Act.     Id. at 429; 18 U.S.C. §13.    This holding,
    
    as the government admits, has been questioned by a subsequent panel
    
    United States v. Perrien, 
    274 F.3d 936
    , 939 n. 1 (5th Cir. 2001).
    
    We share the Perrien court’s concerns and likewise note the Supreme
    
    Court’s discussions of the right to proof beyond a reasonable doubt
    
    afforded by the Due Process Clause and the Sixth Amendment.            See
    
    Apprendi v. New Jersey, 
    530 U.S. 466
    , 476 (2000); In re Winship,
    
    
    397 U.S. 358
    , 364 (“[W]e explicitly hold that the Due Process
    
    Clause protects the accused against conviction except upon proof
    
    beyond a reasonable doubt of every fact necessary to constitute the
    
                                        11
    crime with which he is charged.”); United States v. Gaudin, 
    515 U.S. 506
     (1995); Patterson v. New York, 
    432 U.S. 197
     (1977). Again,
    
    however, we need not resolve the issue because we find that the
    
    government met the higher of the two burdens of proof.3   There was
    
    sufficient evidence for the jury to find beyond a reasonable doubt
    
    that the alleged crime was committed on Barksdale Air Force Base.
    
         Mr. Bailey argues that the government case with respect to the
    
    actual situs of the crime was circumstantial. Mr. Bailey admits
    
    that the government proved that he, and his wife and infant son,
    
    lived on the base during the relevant time period, November and
    
    December 2001.   His brief also admits that at the time of the
    
    alleged crimes his wife worked on the base and that he was
    
    unemployed and the sole care giver during the times that his spouse
    
    was at work, generally between 9:00 p.m. and 5:00 a.m.        It is
    
    reasonable for the jury to infer that a two-month-old baby and his
    
    father would be at home between 9:00 p.m. and 5:00 a.m.   Mr. Bailey
    
    argues that the government produced no eyewitnesses placing the
    
    crime on the base.   It would be extremely unlikely for a parent to
    
    shake an infant, the kind of conduct, doctors testified, that would
    
    cause the kind of injuries suffered by P.B., in the presence of
    
    witnesses, making it reasonable for the jury to infer that such
    
    conduct occurred inside the home. See Perrien, 274 F.3d at 940.
    
    
    
         3
           The jury was instructed to base its finding on this
    element using a beyond a reasonable doubt standard.
    
                                     12
    The defendant’s own statements about when he noticed that the child
    
    was not using his arm and crying also support a jury finding that
    
    the defendant was criminally negligent in failing to seek medical
    
    care for his child while present on the military post.
    
         Second, Mr. Bailey claims that there was insufficient evidence
    
    to prove that he, and not his acquitted co-defendant wife, was the
    
    perpetrator of the abuse.     He argues that the evidence gave equal
    
    or nearly equal support to a theory of guilt or a theory of
    
    innocence, apparently referencing United States v. Lopez, which
    
    held that the court should reverse a conviction where the evidence
    
    “gives equal or nearly equal circumstantial support to a theory of
    
    guilt and a theory of innocence.” 74 F.3d at 577.                Mr. Bailey
    
    suggests that he was convicted while his wife was acquitted because
    
    of   alleged   cultural   stereotypes     holding     that    “stay-at-home
    
    fathers,” or men, in general, are more likely to be violent than
    
    “working mothers,” or women, in general.           He argues that the jury
    
    simply had to pick one of the parents, and they picked him.
    
         We disagree, there are several things in the record that
    
    render the evidence unequal in its support of paternal and maternal
    
    alternative theories of guilt.    Mr. Bailey was the parent with sole
    
    physical custody of the child for long periods of time.                    In
    
    addition, the pediatric nurse practitioner testified that when both
    
    parents brought P.B. into the clinic to have his eye and rash
    
    examined,   Robin   Bailey   behaved    like   a   normal    mother   in   the
    
    
    
                                       13
    situation, while Christopher grew increasingly nervous as she asked
    
    more questions about the cause of the infant’s condition. Further,
    
    Mrs. Bailey offered only one possible explanation for the fractures
    
    to P.B.’s arms.        In contrast, Christopher Bailey made inconsistent
    
    statements to the doctor and investigators. “The evidence does not
    
    need to exclude every reasonable hypothesis of innocence; the jury
    
    is   free       to   choose    among   reasonable       interpretations   of    the
    
    evidence.”        Perrien, 274 F.3d at 939-940 (citations omitted).             The
    
    jury in this case has done so.
    
           Mr. Bailey also contends that the government failed to present
    
    sufficient evidence to prove the unjustifiable pain or suffering
    
    element of the incorporated Louisiana Cruelty to Juveniles statute.
    
    The defendant’s appears to argue both that the infant was not in
    
    pain       or   suffering     and   that   any   pain    or   suffering   was   not
    
    unjustified as medical care was timely sought.                  Common sense and
    
    the x-rays presented to the jury alone make the argument that the
    
    child was not in pain almost ridiculous.                The x-rays together with
    
    the parents’ statements that the child was not using his arm,
    
    guarding his arm, and crying more than usual, and the expert
    
    testimony of three doctors that a fracture like the one in the
    
    infant’s left arm would be painful, are certainly enough to support
    
    a jury verdict as to this issue.4
    
    
           4
            The defendant notes that no pain medication was
    administered in the emergency room and that at the time the
    infant was brought in the child was not crying or outwardly
    
                                               14
         As for the argument that the pain and suffering were not
    
    unjustifiable because the Baileys brought the child to the hospital
    
    in a timely fashion, we note that the cause of the injuries is also
    
    relevant to the unjustified nature of the pain.   In any event, the
    
    parents’ testimony indicates that they noticed that the baby was
    
    not using his arm, guarding it, and crying more than usual for two
    
    to three days.     One doctor placed the fractures as happening
    
    anytime between immediately before the x-rays to two or three days
    
    earlier.   Another expert testified that the fractures of the ulna
    
    and humerus had likely occurred some time prior to December 14, the
    
    day the baby was brought to the emergency room.   He explained that
    
    the x-rays supported this finding because generally a few days
    
    after the fracture, the fracture line on a x-ray is widened as the
    
    body cleans up the bone fragments and begins to heal. In the x-rays
    
    of P.B. taken on December 14 the fracture line on his humerus was
    
    “quite wide.”   In combination, the history provided by the parents
    
    and the x-rays provide sufficient evidence for the jury to find
    
    beyond a reasonable doubt that the pain and/or suffering of P.B.
    
    caused by the delay in treatment was unjustified.
    
                                 Sentence
    
         The defendant was sentenced on October 28, 2004, before the
    
    
    
    exhibiting signs of distress. The medical significance of the
    absence of the administration of pain medication was not
    explained at trial, nor was the lack of outward signs of distress
    during that particular time period. The left arm was put in an
    immobilizing sling.
    
                                     15
    United States Supreme Court decided United States v. Booker, 
    543 U.S. 220
     (2005).       The defendant has not, however, raised any
    
    argument before this court based on Booker.5         Instead, the defendant
    
    is arguing that the district court misapplied the sentencing
    
    guidelines, that the district court erred in upwardly departing
    
    from the guidelines on the basis of uncharged conduct, and that the
    
    sentence was, on the whole, unreasonable.
    
                                 Standard of Review
    
         This court reviews a district court’s pre-Booker determination
    
    of the appropriate guideline range de novo.               United States v.
    
    Villegas, 
    404 F.3d 355
    , 359 (5th Cir. 2005)(“We conclude that when
    
    a district court has imposed a sentence under the Guidelines, this
    
    Court    continues   after   Booker   to   review   the   district   court’s
    
    interpretation and application of the Guidelines de novo.”) As
    
    discussed in United States v. Smith and United States v. Saldana,
    
    after Booker, we review an upward departure for reasonableness, but
    
    in doing so we use an abuse of discretion standard.             Smith, 417
    
    
         5
           This is perhaps wise. Mr. Bailey raised a Blakely based
    objection at sentencing and, therefore, review is for harmless
    error. Blakely v. Washington, 
    542 U.S. 296
     (2004); United States
    v. Pineiro, 
    410 F.3d 482
     (5th Cir. 2005). While the burden is on
    the government to prove that the error is harmless, the district
    court did depart from the guidelines and sentence the defendant
    to the statutory maximum. As the defendant has waived the
    argument on appeal, we need not decide whether this is enough,
    standing alone, to prove that the court would not have sentenced
    the defendant differently under an advisory scheme. Cf. United
    States v. Woods, 
    440 F.3d 255
     (5th Cir. 2006); United States v.
    Cunningham, 
    405 F.3d 497
    , (7th Cir. 2005)
    
                                          
    16 F.3d 283
    , 489-90 (5th Cir. 2005); Saldana, 
    427 F.3d 298
    , 308 (5th
    
    Cir. 2005).
    
                           Applicable Guidelines Range
    
         The district court applied U.S.S.G. § 2A2.2 as the most
    
    analogous offense guideline for the conviction for “cruelty to a
    
    juvenile” under the Assimilative Crimes Act.              18 U.S.C § 13; see,
    
    e.g., United States v. Calbat, 
    266 F.3d 358
     362 (5th Cir. 2001);
    
    United States v. Marmolejo, 
    915 F.2d 981
    , 984 (5th Cir. 1990).                 The
    
    defendant argues that the district court should have applied
    
    U.S.S.G. § A2.3 because P.B.’s injuries did not rise to the level
    
    of “serious bodily injury” as the term is defined by the Guidelines
    
    and used in U.S.S.G. § 2A2.2.
    
         “Aggravated assault” is defined in the application notes to
    
    U.S.S.G. §2A2.2 as: “[F]elonious assault that involved (A) a
    
    dangerous weapon with intent to cause bodily injury (i.e., not
    
    merely to frighten) with that weapon; (B) serious bodily injury; or
    
    (C) an intent to commit another felony.”           Subsections (A) and (C)
    
    are not at issue, and thus the definition of “serious bodily
    
    injury” is key.        The Sentencing Guidelines define the term 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.”              U.S.S.G. § 1B1.1.
    
         Mr. Bailey argues that P.B.’s injuries were not this severe.
    
    
                                          17
    He argued, as discussed above, that P.B. suffered no pain.   He also
    
    argues that no surgery, or physical rehabilitation was necessary
    
    and that P.B. was not “hospitalized,” but merely treated in the
    
    emergency room and admitted to the pediatric intensive care unit
    
    for security reasons and not for medical treatment. The definition
    
    of severe bodily injury, however, also includes the “protracted
    
    impairment of a function of a bodily member.”      This Circuit has
    
    noted that severe bodily injury includes temporary severe injury.
    
    See United States v. Price, 
    149 F.3d 352
     (5th Cir. 1998).         A
    
    displaced fractured humerus is impairment of the function of a
    
    bodily member. The baby’s arm was placed in an immobilizing sling,
    
    and had stopped using the arm even before the emergency room visit.
    
    In addition, at least one other circuit has held a fracture to be
    
    a serious bodily injury. United States v. Reese, 
    2 F.3d 870
    , 897
    
    (9th Cir. 1993)(“‘Serious’ injury is defined in relevant part to
    
    include “injury involving   . . .    the impairment of a function of
    
    a bodily member. . . .” U.S.S.G. § 1B1.1 at Application Note 1(j).
    
    [The victim] was diagnosed with a fractured elbow and ordered to
    
    wear a sling, and testified that he was unable to write out the
    
    complaint he wished to file with the OHA police because of his
    
    injury. His injury thus unquestionably falls within the definition
    
    set forth by the Guidelines.”). We find no error in the district
    
    court’s use of   U.S.S.G. § 2A2.2 as the most analogous guideline
    
    offense.
    
    
                                    18
                                Upward Departure
    
           The district court upwardly departed from a guidelines’ range
    
    of forty-six (46) to fifty-seven (57) months and sentenced Mr.
    
    Bailey   to   the   statutory   maximum   of   120   months.   The   upward
    
    departure was based on U.S.S.G. § 5K2.21, which provides:
    
           The court may increase the sentence above the guideline
           range to reflect the actual seriousness of the offense
           based on conduct (1) underlying a charge dismissed as
           part of a plea agreement in the case, or underlying a
           potential charge not pursued in the case as part of a
           plea agreement or for any other reason; and (2) that did
           not enter into the determination of the applicable
           guideline range.
    
    
    The district court expressly adopted the findings of the U.S.
    
    Probation Office as contained in the Pre-Sentence Report and as
    
    discussed above based the departure on uncharged conduct described
    
    therein, specifically injuries sustained by P.B.’s younger brother
    
    A.B.     The court found that the behavior of the defendant with
    
    respect to A.B. was not charged or included in relevant conduct.
    
    He also found that both children were removed from Mr. Bailey’s
    
    custody and placed in foster care.        He also found that the injuries
    
    to both children were severe and involved multiple fractures.           He
    
    further noted that after being removed from the custody of the
    
    defendant and his wife the children had “flourished” and that
    
    neither had since suffered physical injury of any kind.
    
           Mr. Bailey objected to the upward departure at sentencing and
    
    renews his objections here.      First, he argues that the court heard
    
    
    
                                        19
    no evidence about the extent of A.B.’s injuries.         At sentencing,
    
    however, he couched his objection in terms of a failure to prove
    
    the facts to a jury, and when the court asked if he was contesting
    
    the accuracy of the information his attorney said “No, sir.”          It
    
    appears the “information” being discussed was the fact of the
    
    injuries and the removal of the children, and not the defendant’s
    
    responsibility for those injuries and consequent removal.            This
    
    seems to be the most reasonable interpretation of the exchange
    
    because later in the sentencing hearing Mr. Bailey argues the
    
    possibility,   discussed   at   trial,   that   A.B.   has   osteogenesis
    
    imperfecta and that it was this disease, and not any abuse, that
    
    caused the twenty broken bones A.B. suffered as an infant.
    
         “Presentence reports generally bear indicia of reliability
    
    sufficient to permit reliance thereon at sentencing.”              United
    
    States v. Cabrera, 
    288 F.3d 163
    , 172 (5th Cir. 2002); accord United
    
    States v. Huerta, 
    182 F.3d 361
    , 364 (5th Cir. 1999).
    
         Although a district court must resolve disputed issues of
         fact if it intends to use those facts as a basis for
         sentencing, see Fed.R.Crim.P. 32(c)(3)(D), the court can
         adopt facts contained in a PSR without inquiry, if those
         facts had an adequate evidentiary basis and the defendant
         does not present rebuttal evidence. United States v.
         Rodriguez, 
    897 F.2d 1324
    , 1328 (5th Cir.), cert. denied,
         
    498 U.S. 857
    , 
    111 S. Ct. 158
    , 
    112 L. Ed. 2d 124
     (1990).
         Furthermore, the defendant has the burden of showing that
         information that the district court relied on in
         sentencing is materially untrue.
    
    
    United States v. Puig-Infante, 
    19 F.3d 929
    , 943 (5th Cir. 1994).
    
    In this case, the defendant failed to put on any rebuttal evidence
    
                                       20
    at sentencing.    At best, he referred to evidence introduced at
    
    trial about the possibility that his son A.B. has osteogenesis
    
    imperfecta.   As discussed above, a skin biopsy performed on A.B. to
    
    test for the disease was equivocal and no doctor testified that
    
    A.B. had been diagnosed with the disease.       The sentencing judge
    
    specifically noted that A.B. had flourished since being removed
    
    from his father’s custody and apparently remained unconvinced by
    
    Mr. Bailey’s argument that his son suffered from osteogenesis
    
    imperfecta and not child abuse. The uncharged conduct described in
    
    the PSR adopted by the trial court and which the court specifically
    
    discussed in its sentencing decision is sufficient to support an
    
    upward departure under U.S.S.G. § 5K2.21.       We find no abuse of
    
    discretion in the district court’s decision to upwardly depart from
    
    the applicable guidelines’ range.
    
         Finally, Mr. Bailey argues that his 120-month sentence, as a
    
    whole, is unreasonable. See 18 U.S.C. § 3553(a).   He argues that he
    
    is not the worst kind of offender for whom the statutory maximum
    
    punishment should be reserved.    He points out that he was a first
    
    time felony offender, a new parent, and only twenty-one at the time
    
    of the offense.    He also argues that the crime had no pecuniary
    
    motive and did not entail planning or forethought.       Finally, he
    
    emphasizes that the incorporated Louisiana cruelty to juveniles
    
    statute includes not only intentional conduct, but also criminally
    
    negligent treatment or neglect.       The defendant asserts that the
    
    jury could have found him guilty based only on a finding of neglect
    
                                     21
    or criminal negligence, and thus, a sentence at the statutory
    
    maximum is unreasonable.          We disagree.      We address Mr. Bailey’s
    
    last argument first.         The statutory maximum for this criminal
    
    statute is specific to the crime.              The statutory maximum applies
    
    equally to intentional and criminally negligent mistreatment or
    
    neglect. La.       Rev.   Stat.   §   14:93.     The   Louisiana     Legislature
    
    apparently concluded that some instances of criminally negligent
    
    mistreatment could warrant ten years imprisonment.              In this case,
    
    it is possible that the jury convicted based only on a finding of
    
    criminal negligence. The sentencing judge, however, appears to have
    
    found that the mistreatment was intentional.            He also specifically
    
    noted the severity of the injuries to both children.                  Given the
    
    vulnerability and defenselessness of the infants, the severity of
    
    the injuries, the failure to timely seek medical attention, the
    
    repeated instances of abuse, and the lack of any expressed remorse,
    
    we   find   that    the   sentence     imposed    by   the   trial    court   was
    
    reasonable.
    
          AFFIRMED.
    
    
    
    
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