USA v. Demetrius Damon Nelson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12511
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUS DAMON NELSON,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:20-cr-00019-HL-TQL-1
____________________
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2 Opinion of the Court 22-12511
Before G RANT, L AGOA , and B RASHER , Circuit Judges.
PER CURIAM:
Demetrius Damon Nelson appeals his 135-month sentence
for forcible motor vehicle theft. On appeal, Nelson argues that the
district court plainly erred in applying a four-level enhancement to
his sentence pursuant to U.S.S.G. § 2B3.1(b)(3)(B) because his vic-
tim’s injuries did not amount to “serious bodily injury” as defined
in Application Note 1(M) to § 1B1.1 of the United States Sentencing
Guidelines. After careful review, we affirm.
I.
Nelson was indicted for two counts of forcible motor vehicle
theft in violation of 18 U.S.C. § 2119(1) (Counts One and Two),
with the conduct associated with Count One taking place on June
29, 2019, and the conduct associated with Count Two taking place
the following day. After Nelson pled not guilty to both counts, he
successfully moved to dismiss Count Two. Nelson subsequently
pled guilty to Count One.
The presentence investigation report (“PSI”) initially calcu-
lated a base offense level of 20, pursuant to U.S.S.G. § 2B3.1(a).
The PSI stated that Nelson pulled the victim from her car and
struck her several times, causing injuries to her face and right knee.
Nelson then dragged the victim along with the car for a short time
as he drove away, resulting in the victim suffering road rash on her
right calf. Neither the government nor Nelson objected to the
PSI’s characterization of the events or injuries sustained by the
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22-12511 Opinion of the Court 3
victim. Based on these facts, the PSI applied an enhancement of
four levels, pursuant to § 2B3.1(b)(3)(B), finding that the victim had
sustained serious bodily injury. The PSI also applied an enhance-
ment of two levels, pursuant to § 2B3.1(b)(5), because the incident
involved a carjacking. Thus, Nelson’s adjusted offense level was
26. Finally, the PSI applied a three-level total reduction for ac-
ceptance of responsibility and timely notifying authorities of his in-
tent to plead guilty, pursuant to U.S.S.G. § 3E1.1(a)–(b). The PSI
thus calculated Nelson’s total offense level to be 23.
The PSI also calculated that Nelson had a criminal history
score of 14. The PSI noted that Nelson had committed the instant
offense while serving a sentence of probation, and the PSI thus ap-
plied an additional two points pursuant to U.S.S.G. § 4A1.1(d) for a
total criminal history score of 16, establishing a criminal history cat-
egory of VI. Based on Nelson’s total offense level of 23 and crimi-
nal history category of VI, the PSI calculated that his guideline im-
prisonment range was 92 to 115 months. Nelson did not object to
the proposed guidelines range in the PSI.
At sentencing, Nelson made various statements to the dis-
trict court renouncing his responsibility and stating that he pled
guilty only to avoid a harsher prosecution. The district court then
asked the probation officer who prepared the PSI why Nelson was
still entitled to the three-level reduction for acceptance of respon-
sibility. The probation officer concluded that he was not. The dis-
trict court recalculated Nelson’s guidelines without the three-point
reduction and found his total offense level to be 26 with a range of
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4 Opinion of the Court 22-12511
120 to 150 months’ imprisonment. Nelson did not object to the
revised guidelines calculation. The district court otherwise ac-
cepted the facts as presented in the PSI and sentenced Nelson to
135 months’ imprisonment to run concurrently to any probation
revocation sentence to be imposed by the state and to be followed
with 3 years’ supervised release. Following the imposition of the
sentence, Nelson objected to its reasonableness.1
II.
While we typically review de novo the district court’s inter-
pretation of the Sentencing Guidelines and its application of the
Guidelines to the facts of a case, United States v. Dougherty, 754 F.3d
1353, 1358 (11th Cir. 2014), we review for plain error a sentencing
challenge raised only for the first time on appeal, United States v.
Henderson, 409 F.3d 1293, 1307 (11th Cir. 2005). To show plain er-
ror, a defendant must establish that (1) there was an error; (2) that
was plain or obvious; and (3) affected his substantial rights. Id.
“Once these three requirements are satisfied, we have the discre-
tion to provide relief if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
1 On appeal, Nelson did not raise a reasonableness argument in either of his
briefs. We therefore deem that argument abandoned on appeal. See
United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). (holding that
an appellant had effectively abandoned his claim when he neglected to “de-
vote[] a discrete section of his argument to [the] claim[]”).
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22-12511 Opinion of the Court 5
An error is plain if “the legal rule is clearly established at the
time the case is reviewed on direct appeal.” United States v. Hesser,
800 F.3d 1310, 1325 (11th Cir. 2015). If the explicit language of a
statute or rule does not resolve an issue, plain error lies only where
our or the Supreme Court’s precedent directly resolves it. United
States v. Moore, 22 F.4th 1258, 1266 (11th Cir. 2022); Hesser, 800 F.3d
at 1325.
III.
U.S.S.G. § 2B3.1(b)(3) requires that “[i]f any victim sustained
bodily injury, increase the offense level according to the serious-
ness of that injury,” and lists three levels of severity of injury—bod-
ily injury, serious bodily injury, and permanent or life-threatening
bodily injury—followed by instructions regarding situations where
a victim’s injury falls between levels of severity. § 2B3.1(b)(3)(A)–
(E). Depending on the severity of the victim’s bodily injury, the
defendant’s offense level may be increased by two to six levels. Id.
The text of § 2B3.1(b)(3) does not otherwise provide definitions for
the different levels of injury it lists. See id.
Application Note 1(M) to § 1B1.1 of the Guidelines, how-
ever, provides:
(M) “Serious bodily injury” means 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 sur-
gery, hospitalization, or physical rehabilitation. In ad-
dition, “serious bodily injury” is deemed to have oc-
curred if the offense involved conduct constituting
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6 Opinion of the Court 22-12511
criminal sexual abuse under 18 U.S.C. § 2241 or
§ 2242 or any similar offense under state law.
U.S.S.G. § 1B1.1, comment. (n.1(M)).
On appeal, Nelson argues that the district court plainly erred
in applying the four-level enhancement pursuant to U.S.S.G.
§ 2B3.1(b)(3)(B) because the victim’s injuries did not amount to “se-
rious bodily injury” as defined in Application Note 1(M) to § 1B1.1.2
Nelson argues that, at most, the victim sustained “bodily injury” as
defined in Application Note 1(B), which is subject to a two-point
enhancement under § 2B3.1(b)(3)(A). Nelson argues that the vic-
tim’s injuries did not rise to the level of seriousness that would war-
rant a four-level enhancement. Nelson further argues that this was
plain error and that binding precedent is not necessary. In support
of his argument, Nelson asserts that plain error occurred because a
plain reading of the commentary’s definition of serious bodily in-
jury makes clear that the victim did not experience that level of
pain or protracted impairment. Moreover, he argues that this error
affected his substantial rights because it resulted in his sentence be-
ing 15 to 30 months longer than his maximum sentence would
have been without it.
The government responds that the district court did not err
in its determination that the victim sustained serious bodily injury
2 Nelson incorrectly cites to Application Note 1(F), which defines “departure,”
at several points throughout his brief. See U.S.S.G. § 1B1.1 cmt. n.1(F). This
appears to be a typographical error, as Application Note 1(M) defines “serious
bodily injury.” See § 1B1.1 cmt. n.1(M).
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22-12511 Opinion of the Court 7
within the plain meaning of § 2B3.1(b)(3)(B) and that, even if it did,
that error was not plain. The government argues that, pursuant to
this Court’s recent decision in United States v. Dupree, 57 F.4th 1269
(11th Cir. 2023) (en banc), courts may only consult the Guidelines
commentary to provide definitional gloss for its terms if those
terms remain genuinely ambiguous after exhausting traditional in-
terpretive tools.
In reply, Nelson argues that Dupree does not apply here but
that, even if it did, “serious bodily injury” as it appears in
§ 2B3.1(b)(3)(B) is ambiguous and thus, under Dupree, the district
court should have looked to the Guidelines commentary to guide
its interpretation and application of that phrase. Nelson argues
that, had it done so, the district court would have found that Nel-
son’s victim sustained “bodily injury” worthy of a two-level en-
hancement at most, and therefore plainly erred.
In Dupree, we concluded that courts need not defer to the
commentary unless the text of the Guidelines is genuinely ambig-
uous. Id. We explained that, “[t]o determine whether ambiguity
exists, courts first must exhaust all the traditional tools of construc-
tion.” Id. at 1274 (quoting Kisor v. Wilkie, 139 S. Ct. 2400, 2415
(2019)). Further, if no ambiguity exists after courts have emptied
their legal toolbox, the analysis is complete, and there is “no need
to consider, much less defer to” the commentary. Id. at 1279.
Here, we conclude that the district court did not plainly err
in applying a four-level increase pursuant to § 2B3.1(b)(3)(B). Re-
gardless of whether the district court erred in finding that Nelson’s
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8 Opinion of the Court 22-12511
carjacking victim sustained serious bodily injury, any error could
not have been plain. First, the Guidelines themselves do not define
serious bodily injury. See U.S.S.G. § 2B3.1(b)(3). And even assum-
ing arguendo that “serious bodily injury” under § 2B3.1(b) is ambig-
uous and that we can look to the Guidelines commentary under
Dupree, see 57 F.4th at 1276–77, the commentary definition does not
plainly state that the victim’s injury to her face, right knee, and
right calf are not serious bodily injuries., see § 1B1.1 cmt. n.1(M). It
is therefore not plain that the commentary’s definition, which in-
cludes broad terms like “extreme physical pain,” could not apply to
the injuries to the victim’s face, knee, and calf. See id. Nor is there
any binding precedent from this Court or the Supreme Court spe-
cifically addressing what constitutes serious bodily injury for pur-
poses of § 2B3.1(b). Moore, 22 F.4th at 1266.
Without such authority from the Guidelines or binding
precedent from this Court or the Supreme Court, any error is not
plain. See Henderson, 409 F.3d at 1307. Accordingly, we affirm Nel-
son’s sentence.
AFFIRMED.
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