Summary Calendar UNITED STATES OF AMERICA v. Deon James Shamburger, also known as Devon Lamont Wilson

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-50319
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DEON JAMES SHAMBURGER, also known as Devon Lamont Wilson
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:06-CR-206-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Deon James Shamburger appeals the sentence imposed following his
guilty plea conviction for assault of a federal officer. Shamburger argues that
the district court erred by applying the enhancement pursuant to U.S.S.G.
§ 2A2.4 based on a finding that the victim suffered bodily injury. Shamburger
contends that the evidence does not show that the injury was significant.
Section 2A2.4(b)(2) of the Sentencing Guidelines provides for a two-level
increase when an offense involves bodily injury to the victim. Bodily injury is
United States Court of Appeals
Fifth Circuit
F I L E D
April 18, 2008
Charles R. Fulbruge III
Clerk

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No. 07-50319
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defined by reference to U.S.S.G. § 1B1.1 and is “any significant injury; e.g. an
injury that is painful or obvious, or is of a type for which medical attention
ordinarily would by sought.” § 2A2.4(b)(2), comment. (n.1), citing § 1B1.1,
comment. (n.1(B)). Because the recent Supreme Court decisions of Gall v.
United States, 128 S. Ct. 586 (2007), Rita v. United States, 127 S. Ct. 2456
(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), did not alter this
court’s review of the district court’s construction of the Guidelines or findings of
fact, see United States v. Cisneros-Guiterrez, ___ F.3d ___, 2008 WL 383024 at *8
(5th Cir. Feb. 13, 2008), the district court’s interpretation and application of the
sentencing guidelines are reviewed de novo, and its factual findings are reviewed
for clear error. United States v. Juarez Duarte, 513 F.3d 204, 208 (5th Cir. 2008)
(per curiam) (post-Gall and Kimbrough).
The district court viewed a photograph showing a bleeding laceration
sustained by the victim. The victim testified that the injury was painful.
Therefore, there was sufficient evidence for the district court to find that the
victim suffered a painful or obvious injury. The district court did not clearly err
in applying the enhancement under § 2A2.4. Accordingly, the judgment of the
district court is AFFIRMED.

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