from the United States District Court for the Western
District of Louisiana
STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
E. STEWART, Chief Judge
a guilty plea for misprision of a felony, the district court
applied a four-level sentencing enhancement for use of a
dangerous weapon- shoes in conjunction with the "solid
prison floor"-to Defendant-Appellant Rafael
Velasco's sentence. Velasco appeals the enhancement.
Finding no error, we AFFIRM.
is an inmate at the Federal Correctional Complex in Oakdale,
Louisiana. While there, he and Alonzo Deleon witnessed fellow
inmate Christian Sanchez attack Gonzalo Esquivel with a
sharp-edged object, leaving Esquivel with a severe cut along
the side of his face and down his neck. Instead of reporting
the incident, Velasco, Esquivel, and Deleon attacked Sanchez,
stomping, kicking, and beating him. As a result of this
attack, Sanchez sustained serious injuries, including:
comminuted and mildly displaced fractures, bilaterally, of
the nasal bones; comminuted and non-displaced fractures,
bilaterally, of the anterior aspect of the maxilla (upper
jaw); comminuted mildly displaced fractures of the nasal
septum; prominent facial soft tissue swelling; and multiple
bruises, contusions, and lacerations to the face and head
the men did not cooperate with investigators and provided
little to no information regarding the assault on either
Esquivel or Sanchez.
13, 2015, Esquivel, Velasco, and Deleon were charged in a
one-count superseding indictment with assault resulting in
serious bodily injury, in violation of 18 U.S.C. §§
2, 113(a)(6). Velasco ultimately pleaded guilty to a bill of
information for misprision of a felony in violation of 18
U.S.C. §§ 4, 113(a)(6). The presentence
investigation report ("PSR") set Velasco's
total offense level at eight, with a criminal history
category of V, which resulted in a Guidelines range of
fifteen to twenty-one months. The Government objected to the
PSR, arguing that the shoes Velasco used to "stomp"
Sanchez's head against the "solid prison floor"
were dangerous weapons, requiring a four-level enhancement
pursuant to U.S.S.G. § 2A2.2(b)(2)(B).
district court issued a memorandum ruling, granting the
Government the opportunity to introduce evidence of the
assault on Sanchez. At the subsequent hearing, the Government
presented the testimony of Jasmine Melbert, a corrections
officer at the prison. She described the incident, explaining
that Deleon, Velasco, and Esquivel took turns
"stomping" Sanchez's head into the floor with
"the bottom of their feet." She gave them
"direct orders to stop, " which the men ignored.
She went on to explain that Sanchez was defenseless, as
Deleon, Velasco, and Esquivel were holding his arms back
"punching him in the facial area as he hit the floor and
. . . stomp[ing and] kick[ing] him."
district court noted that under § 2A2.2(b)(2)(B),
"[d]angerous weapons can be almost anything depending on
the manner in which they are used." Finding
Melbert's testimony "clear [and] unequivocal, "
and accepting it "as fact, " the district court
concluded that the event involved the use of a dangerous
weapon and sustained the Government's objection to the
PSR. Applying the four-level enhancement, Velasco's
revised Guidelines range was twenty-seven to thirty-three
months. The district court sentenced Velasco to an
above-Guidelines sentence of thirty-six months to "run
consecutively to any undischarged term of imprisonment"
and to be followed by a one year term of supervised release.
Velasco timely appealed.
defendant objects to the Guidelines calculation in the
district court, this court "review[s] the application of
the Guidelines de novo and the district court's
factual findings-along with the reasonable inferences drawn
from those facts-for clear error." United States v.
Alcantar, 733 F.3d 143, 146 (5th Cir. 2013) (citing
United States v. Harris, 702 F.3d 226, 229 (5th Cir.
2012)). Whether an item is a dangerous weapon is a finding of
fact. United States v. Estrada-Fernandez, 150 F.3d
491, 497 (5th Cir. 1998) (per curiam) (citing United
States v. Schoenborn, 4 F.3d 1424, 1433 (7th Cir. 1993)
("Whether or not an object constitutes a dangerous
weapon . . . is a question of fact and necessarily depends on
the particular circumstances of each case.")).
Therefore, we review this finding for clear error. See
United States v. Ortegon, No. 01-51202, 2002 WL 1860281,
at *1 (5th Cir. June 17, 2002). Under the clear error
standard, a factual finding is clearly erroneous only where,
in light of the record, "the court is left with the
definite and firm conviction that a mistake has been
committed." United States v. Malone, 828 F.3d
331, 337 (5th Cir.) (quotation and citation omitted),
cert. denied, 137 S.Ct. 526 (2016).
2A2.2(b)(2)(B) provides a four-level enhancement if a
dangerous weapon, including "any instrument that is not
ordinarily used as a weapon, " was used in more than
just a threatening manner or simply brandished or discharged.
§ 2A2.2(b)(2)(B) & cmt. n.1. Thus, whether an item
is a dangerous weapon turns on whether "such an
instrument is involved in the offense with the intent to
commit bodily injury." Id. The intent to do
bodily harm is not measured by the actor's subjective
motivation, but rather, it is measured objectively, by what
someone in the victim's position might reasonably
conclude from the assailant's conduct. United States
v. Perez,897 F.2d 751, 753 (5th Cir. 1990); compare
United States v. Nunez-Granados, 546 F.App'x 483,
486-87 (5th Cir. 2013) (per curiam) (finding the enhancement
did not apply, because the defendant kicked the officer with
the intent to escape, not to cause the officer serious