United States v. Webster, Bronson L. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4430
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRONSON L. WEBSTER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06-CR-173—William C. Griesbach, Judge.
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ARGUED AUGUST 8, 2007—DECIDED AUGUST 30, 2007
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Before EASTERBROOK, Chief Judge, and COFFEY and
MANION, Circuit Judges.
EASTERBROOK, Chief Judge. Bronson Webster punched
Leah Tourtillott in the face five times and, after she
collapsed, kicked her in the face five times. The attack
broke her nose and the bone around her right eye; it
also caused lacerations that a physician concluded
would leave prominent facial scars. Because the attack
occurred on an Indian reservation, it came within federal
jurisdiction. 18 U.S.C. §1153. Webster pleaded guilty to an
assault that caused serious bodily injury. 18 U.S.C.
§113(a)(6). His criminal history category of VI and offense
level of 18 (after a reduction for accepting responsibility)
produced a range of 57 to 71 months under the Sentencing
2 No. 06-4430
Guidelines. The district judge imposed a sentence of
68 months.
Webster maintains that the offense level should have
been 16 rather than 18. The range corresponding to
an offense level of 16 would have been 46 to 57 months’
imprisonment. The two-level difference depends on the
application of U.S.S.G. §2A2.2(b)(3), which prescribes
seven offense levels for battery that produces “permanent
or life-threatening bodily injury” but only five levels for
an attack that causes “serious bodily injury”. According
to Webster, Tourtillott’s injuries were “serious” but not
“permanent or life-threatening”.
They aren’t “life-threatening”, but they are “permanent”,
the district court found. Application Note 1 to U.S.S.G.
§1B1.1 defines “permanent or life-threatening bodily
injury” (a phrase used throughout the Guidelines, though
oddly not the subject of many published opinions) as
“injury involving a substantial risk of death; loss or
substantial impairment of the function of a bodily member,
organ, or mental faculty that is likely to be permanent; or
an obvious disfigurement that is likely to be permanent.”
The district judge concluded that Tourtillott’s scars are
“obvious disfigurement” even if her eye and nose bones
will mend without degrading her appearance.
Enhancement for a permanent disfigurement is appro-
priate, Webster maintains, only if the prosecution can
prove that the condition cannot be corrected by plastic
surgery. Webster contends that these scars may be cor-
rectable (or, if permanent, may be ameliorated so that
they are not “obvious”). No evidence in the record would
allow a judge to find this; the most that any of the sur-
geons whose evaluations are in this record would venture
is that correction “may” be possible. These physicians
opined that the prospects for cosmetic surgery could not
be evaluated until Tourtillott’s condition had stabilized
in a year or so.
No. 06-4430 3
Like the district judge, we think that this line of argu-
ment misunderstands U.S.S.G. §2A2.2(b)(3)(C) and the
application note. Uncertainty does not preclude a finding
of permanence. Instead of asking whether a victim’s
future might be brighter, a district court should act on
the basis of the victim’s current condition and current
medical information. If an impairment has not been
corrected by the time of sentencing, and will last for life
unless surgically corrected in the future, then it should
be treated as “permanent” under the Guidelines unless
future correction would be a straightforward procedure.
(By this we mean that the possibility of correction would
be straightforward; the fact that any particular victim may
decline to undergo surgery does not justify increasing a
sentence compared with the punishment for someone
whose victim is more tolerant of medical procedures. The
less serious the scar, the less likely that the victim will
favor surgical correction; it would invert appropriate
principles of deterrence and desert to impose the higher
sentence on the person whose crime caused the lesser
injury.)
This understanding makes the physical-injury rules
parallel to the financial-injury rules. An amount taken
from a victim counts as “loss” even if an offender promises
to repay in the future. An offender is entitled to full credit
against the financial loss only for sums repaid before the
crime is detected, U.S.S.G. §2B1.1 Application Note 3(E),
and thereafter to partial credit through a reduction for
acceptance of responsibility if more is paid by the date of
sentencing. The date on which the wrongdoer is sen-
tenced represents the end of predictions; only what has
happened by then need be taken into account. Talk is
cheap, and it is easy to foresee (or purport to foresee) that
victims will be repaid, or their bodily injuries repaired. A
judge should rely on what is known at the time of sentenc-
ing rather than on predictions of doubtful accuracy.
4 No. 06-4430
Prominent facial scars are a form of “obvious disfigure-
ment.” See United States v. Phillips, 239 F.3d 829, 848
(7th Cir. 2001); United States v. Cree, 166 F.3d 1270,
1271–72 (8th Cir. 1999). The physician who treated
Tourtillott at the emergency room testified that the
scarring will be permanent. Webster does not deny that
her scars, if permanent, are obvious disfigurement.
Correction by plastic surgery is not a sure thing. No
more is required to support an enhancement under
U.S.S.G. §2A2.2(b)(3)(C).
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-30-07