Case: 21-40307 Document: 00516229184 Page: 1 Date Filed: 03/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 8, 2022
No. 21-40307 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Hector Fernando Blanco,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:18-CR-26-1
Before Owen, Chief Judge, and Higginbotham and Elrod, Circuit
Judges.
Jennifer Walker Elrod, Circuit Judge:
Hector Fernando Blanco was charged with forcibly and intentionally
assaulting his then-girlfriend, Morgan Greer, on a Royal Caribbean cruise
ship that departed from Galveston, Texas. Blanco subsequently pleaded
guilty. Based on his presentence report (PSR), which included a three-level
“bodily injury” enhancement and 3 additional criminal history points for a
previous conviction, the district court sentenced Blanco to 36 months of
imprisonment and 2 years of supervised release. Blanco objected to the
bodily injury enhancement and now appeals both the enhancement and the
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criminal history points that factored into his PSR. Because the district court
erred in assessing 3 criminal history points for a stale 2002 conviction, which
affected Blanco’s substantial rights, we VACATE his sentence and
REMAND for resentencing. We AFFIRM the district court’s application
of the bodily injury enhancement.
I.
On November 18, 2018, Blanco intentionally assaulted Greer in a
cabin the pair shared aboard the Royal Caribbean cruise ship “Liberty of the
Seas,” while in international waters approximately 45 miles from Galveston,
Texas. Blanco and Greer were dating at the time of the assault. At
approximately 2:00 a.m. on November 18, Blanco entered the cruise ship
cabin highly intoxicated while Greer was asleep. Blanco searched through
Greer’s cellphone and confronted her about various pictures and text
messages that she allegedly sent to her ex-husband.
The confrontation escalated when Blanco put his hands over Greer’s
mouth, grabbed a bath towel, and told Greer she was going to die or be thrown
overboard. Blanco subsequently twisted the bath towel, wrapped it around
Greer’s neck and began to choke her. Blanco then dragged Greer by the neck
on the floor toward the balcony, threatening to throw her overboard. Fearing
that she would be strangled, knocked unconscious, or thrown overboard,
Greer bit Blanco’s hand in an effort to escape.
Greer ultimately escaped and reported the assault to ship personnel.
Greer asked to see the ship’s doctor and was initially seen by an intake nurse
who documented that Greer experienced pain in her neck, but had no bruises,
visible marks, or wounds. The ship’s doctor also noted that there were no
signs of physical abuse but prescribed pain medication and strongly advised
Greer to see her home physician at the end of the cruise. The ship’s security
office began an investigation, which was completed by the Federal Bureau of
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Investigation once the ship arrived back in Galveston, Texas. FBI Agent
Laura Brunstetter interviewed Greer when the ship docked in Galveston—
eight hours after the assault—and saw bruising on Greer’s neck, chin, the
sides of her face, as well as red marks on her scalp. The FBI also gathered
physical evidence, including a towel that contained human hair with the root
still attached—which was confirmed to belong to Greer.
Blanco was charged and pleaded guilty to one count of “forcibly and
intentionally assault[ing] Morgan Greer, who was then [his] dating and
intimate partner, by attempting to strangle and suffocate her with his hands
and a bath towel,” while “within the special maritime and territorial
jurisdiction of the United States and within the jurisdiction of the [c]ourt,”
in violation of 18 U.S.C. §§ 7, 113(a)(8), 3238.
The district court ordered and adopted the probation officer’s PSR
based on the 2018 version of the Sentencing Guidelines, which calculated an
offense level of 17. This calculation included a base offense level of 14, a
three-level enhancement for strangling or attempted strangling of an intimate
partner, a three-level enhancement for bodily injury sustained by Greer, and
a three-level reduction for acceptance of responsibility. The PSR also
calculated Blanco’s criminal history at a category V based on several previous
convictions, including a 2002 conviction for operating a motor vehicle after
a lifetime forfeiture of his driver’s license. Based on the PSR calculations,
Blanco faced a Guidelines range of 46–57 months of imprisonment.
Blanco objected to the bodily injury enhancement, arguing that the
evidence was insufficient to show that Greer suffered bodily injury as defined
by the Guidelines. In support of his objections, Blanco submitted the report
of the medical examination that took place just after the assault and
photographs taken both before and after the assault. The Government filed
a response asserting that forthcoming sentencing testimony from Greer and
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Agent Brunstetter would establish that Greer suffered bodily injury that was
painful and obvious as a result of the assault.
At sentencing, the district court considered arguments from counsel
related to Blanco’s objection and the testimony from Greer and Agent
Brunstetter. Overruling Blanco’s objection, the district court acknowledged
the Guidelines range of 46–57 months of imprisonment, granted Blanco’s
request for a downward variance, and imposed a below-Guidelines sentence
of 36 months of imprisonment and 2 years of supervised release. Blanco
timely appealed.
II.
For the first time on appeal, Blanco challenges the PSR calculation for
his criminal history category that was adopted by the district court. He
argues that the district court erred in assessing three criminal history points
for a stale 2002 conviction, thereby affecting his substantial rights because
the district court used a higher imprisonment range as a starting point. We
agree.
Blanco contends that—based on this Court’s precedent and the plain
language of the criminal history calculations in the Guidelines—his 2002
sentence was too old to receive criminal history points. Blanco claims that
the sentence imposed on his 2002 conviction for operating a motor vehicle
after forfeiture of his driver’s license for life did not total more than 13
months and was originally imposed more than 10 years before the
commencement of the assault. He further argues that this improper
assessment affected his substantial rights and the fairness of his judicial
proceedings because the district court incorrectly used a higher Guidelines
range as a starting point to apply its downward variance.
The government concedes that the district court committed clear
error in assigning three criminal history points for Blanco’s 2002 conviction.
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However, the government contends that the error did not affect Blanco’s
substantial rights because the district court’s sentencing decision was based
on factors independent of the Guidelines. We agree with Blanco.
Because Blanco did not raise this objection in district court, we review
this issue for plain error. United States v. Johnson, 943 F.3d 735, 737 (5th Cir.
2019). To prevail, Blanco “must show a forfeited error that is clear or
obvious and that affects his substantial rights.”
Id. Even if Blanco makes the
requisite showing, we may exercise our discretion to correct the error “only
if it seriously affects the fairness, integrity or public reputation of judicial
proceedings.”
Id. (internal quotation marks and citation omitted).
The Sentencing Guidelines direct district courts to calculate a
defendant’s criminal history score in part by assessing points for each of the
defendant’s prior sentences of imprisonment. U.S.S.G. § 4A1.1. Three
criminal history points are added for each sentence of imprisonment
exceeding one year and one month. Id. § 4A1.1(a). Further, to qualify as a
sentence of imprisonment, the defendant must actually serve a period of
imprisonment. Id. § 4A1.2, cmt. 2.
Blanco was assigned three criminal history points for a 2002
conviction for operating a motor vehicle after a lifetime forfeiture of his
driver’s license. This conviction resulted in a four-year prison term, but two
years were suspended to at home confinement and two years were probated.
Blanco’s probation was ultimately revoked, and he was sentenced to a one-year prison term. 1
1
When computing criminal history points after a defendant’s probation is revoked,
as here, the original term of imprisonment is added to any term of imprisonment imposed
upon revocation. See U.S.S.G. § 4A1.2(k)(1).
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Because Blanco’s original sentence was probated, the term of
imprisonment used to calculate his criminal history points should have been
the one-year term after revocation of his probation. See Id. § 4A1.2(k)(1) &
cmt. 11; see also United States v. Rodriguez-Parra, 581 F.3d 227, 229–30 (5th
Cir. 2009) (noting that the suspended part of a sentence is not part of the
sentence of imprisonment). Blanco’s PSR also indicates that the sentence
for his 2002 conviction was originally imposed more than ten years prior to
the assault of Greer.
When “a straightforward application of the [G]uidelines” reveals the
error in applying a defendant’s criminal history points, the error was clear
and obvious. United States v. Torres, 856 F.3d 1095, 1099 (5th Cir. 2017).
Thus, Blanco should not have been assessed any points for the 2002
conviction because he did not receive a term of imprisonment that exceeded
one year and one month and his sentence was imposed over ten years before
the assault. See U.S.S.G. § 4A1.2(e); see also United States v. Arviso-Mata,
442 F.3d 382, 385 (5th Cir. 2006) (explaining that if criminal history points
are to be assessed for a term of imprisonment less than one year and one
month, the term must have been imposed within ten years of the instant
offense); U.S.S.G. § 4A1.2(k)(2)(C) (explaining that when a new term of
imprisonment is imposed following revocation of probation and the total
term is less than one year and one month, the date of the original sentence is
used to determine the ten-year period). This is a clear and obvious error by
the district court.
Blanco must also show that the error affected his substantial rights and
“seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings.” Johnson, 943 F.3d at 737. The substantial rights prong of our
plain error review requires the appellant to “show a reasonable probability,
that but for the error, the outcome of the proceeding would have been
different.” Molina-Martinez v. United States,
578 U.S. 189, 194 (2016)
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(internal quotation marks and citation omitted). The district court’s reliance
on an incorrect Guidelines range will usually suffice to show an effect on the
defendant’s substantial rights where “the record is silent as to what the
district court might have done had it considered the correct Guidelines
range.” Id. at 201. “Even if the sentencing judge sees a reason to vary from
the Guidelines, if the judge uses the sentencing range as the beginning point
to explain the decision to deviate from it, then the Guidelines are in a real sense
the basis for the sentence.”
Id. at 199 (internal quotation marks and citations
omitted).
Further, “[i]n the ordinary case . . . the failure to correct a plain
Guidelines error that affects a defendant’s substantial rights will seriously
affect the fairness, integrity, and public reputation of judicial proceedings.”
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018). Because of “the
role the district court plays in calculating the range and the relative ease of
correcting the error,” the potential deprivation of liberty from a Guidelines
error undermines “the fairness, integrity, or public reputation of judicial
proceedings.”
Id. at 1908. As we have also stated, exercising our discretion
in correcting a “plain procedural error in sentencing proceedings” is not
based upon Blanco’s criminal history. United States v. Sanchez-Arvizu,
893
F.3d 312, 317–18 (5th Cir. 2018). Thus, where the first three prongs are met,
the Supreme Court “expects relief to ordinarily be available to defendants in
sentencing cases.” United States v. Urbina-Fuentes,
900 F.3d 687, 699 (5th
Cir. 2018) (internal quotation marks and citation omitted).
The government argues that the district court imposed a downward
variance based on Blanco’s “history and other characteristics” and other 18
U.S.C. § 3553(a) sentencing factors—independent of the Guidelines. The
district court noted Blanco’s “long criminal history”—though many of his
offenses were traffic-related—and expressed concerns about deterrence
based on his repeated driving without a license although he had been
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“banned from driving for life.” However, in its decision to grant a downward
variance from the original Guidelines range, the district court considered
Blanco’s criminal history as “overrepresented.”
While Blanco’s criminal history and other characteristics were factors
in his below-Guidelines sentence, the Guidelines were still the starting point
and basis for his sentence. The record reflects that, at sentencing, the district
court expressly and repeatedly mentioned that it considered the Guidelines
in its decision. In granting Blanco’s request for a downward variance, the
court stated that it “considered the [G]uidelines, and based upon the totality
of factors . . . sentence[d] the defendant to 36 months.” The district court
further noted that it “considered the Guidelines” to find that a variance was
“consistent with” and had “take[n] into account the purposes of 18 U.S.C.
§ 3553(a).” Although the district court ultimately varied from the Guidelines
range it originally calculated, a defendant’s substantial rights are affected if:
(1) a district court uses the Guidelines as a starting point; (2) the Guidelines
calculation is incorrect; and (3) the record is silent as to what the district
court might have done had the Guidelines range been correct. See Molina-Martinez, 578 U.S. at 199–200. All three are present in this case.
Had Blanco’s PSR been calculated correctly, his resulting criminal
history category would have been IV and not the category V score he was
originally assessed. See U.S.S.G. ch. 5 pt. A. A category IV score combined
with a total offense level of 17 would have produced a Guidelines range of 37
to 46 months rather than the 46 to 57 months the district court calculated.
U.S.S.G. ch. 5 pt. A. The record further reflects that the district court’s
reliance on the Guidelines as a basis for his sentence—although it ultimately
departed from them—shows a reasonable probability that his sentence would
have been different. See Molina-Martinez, 578 U.S. at 194. The failure to
correct this error in the Guidelines calculation affected Blanco’s substantial
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rights and seriously affected the fairness, integrity, and public reputation of
his judicial proceedings. 2
Because the district court erred in assessing three criminal history
points for Blanco’s 2002 conviction, we therefore vacate his sentence and
remand for resentencing.
III.
Blanco also argues that the district court erred by assessing a three-level bodily injury enhancement under U.S.S.G. § 2A2.2(b)(3)(A). We
disagree.
Blanco contends that the district court’s assessment of the three-level
bodily injury enhancement was in error because there was insufficient
evidence that Greer sustained a bodily injury as defined by the Guidelines. In
particular, he maintains that the evidence failed to show that Greer’s injuries
were painful and obvious or were the type for which medical care ordinarily
would be sought.
The government argues that, in light of the record, it was plausible for
the district court to find Greer sustained a bodily injury under
§ 2A2.2(b)(3)(A). Specifically, the government points to: (1) Greer’s
testimony related to the pain she sustained during the assault; (2) the forensic
evidence of Greer’s hair with the root still attached recovered from the bath
towel; and (3) Agent Brunstetter’s testimony related to her observation and
photographing of bruising on Greer’s face, neck, and knee and red marks on
her scalp.
2
We also reject the government’s additional argument that because Blanco’s
sentence was below both the correct and incorrect Guidelines range his substantial rights
were not affected.
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We review the “district court’s interpretations of Guidelines de novo
and its factual findings for clear error.” United States v. Williams, 610 F.3d
271, 292 (5th Cir. 2010); see also United States v. Lister,
229 F. App’x 334, 339
(5th Cir. 2007) (involving bodily injury enhancement). Whether Greer
sustained a bodily injury under U.S.S.G. § 2A1.2 is a factual finding that is
reviewed for clear error. United States v. Douglas,
957 F.3d 602, 607 (5th Cir.
2020); see also Lister,
229 F. App’x at 340. A factual finding is not clearly
erroneous if it is plausible in light of the whole record. United States v. Ruiz-Hernandez,
890 F.3d 202, 211 (5th Cir. 2018).
“Sentencing enhancements must be proven by a preponderance of the
evidence.” Id. (internal quotation marks and citations omitted). Section
2A2.2(b)(3)(A) applies a three-level enhancement in cases of aggravated
assault if the victim sustained bodily injury. The Guidelines define bodily
injury 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.”
U.S.S.G. § 1B1.1, cmt. 1.B; see also § 2A2.2, cmt. 1 (stating that, for purposes
of § 2A2.2, the term “bodily injury” has the meaning given that term in
§ 1B1.1). The enhancement turns on the injury sustained by Greer and not
on the actions of Blanco. United States v. Guerrero,
169 F.3d 933, 946 (5th
Cir. 1999). Further, testimony from the victim about the injury sustained
provides strong evidence to support the bodily injury enhancement.
Id. at
947.
Blanco does not dispute that Greer suffered pain; rather, he contends
that her injuries were not sufficient to satisfy § 2A2.2. He argues that Greer
only sought medical attention for security purposes and that an evaluation by
the ship’s doctor and nurse noted neck pain but no visible marks or wounds.
Further, he contends that, although photographs taken after the assault
appear to show bruises on Greer’s neck, cheek, and leg as well as red marks
on her neck, cheek, and scalp, they are similar to marks presented in other
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photographs taken before the assault took place. This argument not only
contradicts properly credited witness testimony, but it also downplays the
record’s reflection of the brutal nature of the assault.
The district court properly credited Greer’s sentence hearing
testimony that she experienced pain as a result of the assault; that she had
trouble breathing, was dizzy, and saw black spots when she was choked; that
her neck was sore for a week; that she had trouble breathing on the second
day after the assault; and that she asked to see a doctor while still on the ship.
In addition, both Greer and Agent Brunstetter testified that Greer suffered
bruises from the assault. In fact, Agent Brunstetter testified that she could
still see bruising on Greer’s face at the November 21, 2018 initial
appearance—which Greer tried to cover with makeup.
The PSR and its Addendum provide further evidence of bruising.
Agent Brunstetter also testified that the lighting was poor in the original
photographs taken shortly after the assault, so some of the photographs did
not accurately portray what she observed during her interview with Greer.
The district court was entitled to credit Agent Brunstetter’s testimony and
the information in the PSR Addendum explaining the lack of obvious bruising
in the photographs. See United States v. Harris, 740 F.3d 956, 968 (5th Cir.
2014). In addition, the record contains evidence of Greer’s hair loss from the
root that was found on a towel in the cabin.
We have indicated that the bodily injury enhancement may apply even
if the injury is not both painful and obvious and that the absence “of bruising,
swelling, or bleeding is not dispositive.” United States v. Washington, 500 F.
App’x 279, 283 (5th Cir. 2012) (affirming the bodily injury enhancement
when the victim was punched in the nose, although there was no evidence of
physical injury and the victim did not seek medical care); see also United States
v. Smith,
822 F.3d 755, 765 (5th Cir. 2016) (affirming bodily injury
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enhancement where a bank customer was thrown to the ground from a chair
and kicked, and a bank employee sustained bruising and a small amount of
hair loss).
In light of this evidence, it is plausible that Greer suffered bodily injury
as defined by the Guidelines. See Ruiz-Hernandez, 890 F.3d at 211.
Therefore, we affirm the district court’s application of the bodily injury
enhancement
IV.
Because the district court erred in assessing three criminal history
points for a stale 2002 conviction, which affected Blanco’s substantial rights,
we VACATE his sentence and REMAND for resentencing. We
AFFIRM the district court’s application of the three-level bodily injury
enhancement.
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