Judge Rosemary S. Pooler, originally assigned to this panel, did not participate in the *

consideration of this appeal. The remaining two members of the panel, who are in

agreement, have determined this matter in accordance with Second Circuit Internal Operating

Procedure E(b).

08-1863-cr; 08-2194-cr

United States v. Wei

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY

PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held

at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of

New York, on the 29 day of April, two thousand ten. th

PRESENT: REENA RAGGI,

PETER W. HALL,

Circuit Judges.

*

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UNITED STATES OF AMERICA,

Appellee,

v. Nos. 08-1863-cr (L)

08-2194-cr (CON)

SHI YONG WEI, LIN GUANG,

Defendants-Appellants.

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APPEARING FOR APPELLANTS: ALAN M. NELSON, Lake Success, New York,

for Defendant-Appellant Shi Yong Wei.

JONATHAN I. EDELSTEIN, New York, New

York, for Defendant-Appellant Lin Guang.

APPEARING FOR APPELLEE: JENNIFER G. RODGERS, Assistant United
2

States Attorney (Miriam E. Rocah, on the brief),

for Lev L. Dassin, Acting United States Attorney

for the Southern District of New York, New York,

New York.

Appeal from the United States District Court for the Southern District of New York

(Richard M. Berman, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on April 10, 2008, is AFFIRMED.

Defendants Shi Yong Wei and Lin Guang were convicted following a jury trial of

conspiracy to commit extortion and multiple counts of substantive extortion. See 18 U.S.C.

§ 1951. Shi and Lin here appeal their amended sentences of 210 months’ and 143 months’

imprisonment, respectively, imposed after remand by this court. See United States v. Guang,

511 F.3d 110, 125 (2d Cir. 2007) (holding that district court erred in imposing six-level

sentence enhancement applicable when extortion victim sustains permanent bodily injury).

Defendants assert (1) error in the district court’s Guidelines calculation on remand, and (2)

substantive unreasonableness in their terms of incarceration. We r e v i ew d e f e n d a n ts’

sentencing challenges under an abuse-of-discretion standard that “incorporates de novo

review of questions of law (including interpretation of the Guidelines) and clear-error review

of questions of fact.” United States v. Legros, 529 F.3d 470, 473-74 (2d Cir. 2008); see also

United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc). For a finding of fact to

be clearly erroneous, we must be “left with the definite and firm conviction that a mistake has

been committed.” United States v. Cuevas, 496 F.3d 256, 267 (2d Cir. 2007) (internal
3

quotation marks omitted). We will set aside a district court’s sentence as substantively

unreasonable “only in exceptional cases where the trial court’s decision cannot be located

within the range of permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal

quotation marks omitted). In applying these principles to this case, we assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

1. The Guidelines Calculation

Defendants submit that the evidence of victim injury was insufficient to support a

three-level Guidelines enhancement pursuant to U.S.S.G. § 2B3.2(b)(4). We disagree.

Section 2B3.2(b)(4) calls for a two-level enhancement for “bodily injury,” defined 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. n. 1(B); see id. § 2B3.2 cmt.

n. 1 (cross-referencing § 1B1.1). The same Guideline calls for a four-level enhancement for

“serious bodily injury,” defined as “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 surgery, hospitalization, or physical rehabilitation.” Id. § 1B1.1, cmt. n.

1(L).

In this case, the district court found that defendants sprayed one of their victims, Zhang

Qing Hai, with a blinding liquid and beat him so severely that he lost consciousness. Upon

Zhang’s arrival at a hospital, his shirt was full of blood and he required stitches. Further, the

district court found, based in part on its own observation, that, as a result of the assault,
 The fact that an ophthalmologist who examined Zhang more than five years after the 1

assault could not conclusively determine the cause of the mild conjunctival scarring still

evident in Zhang’s eyes does not leave us with a definite and firm conviction that the district

court was mistaken in finding it more likely than not that spraying Zhang’s eyes with a

blinding substance impaired his vision. See United States v. Martinez, 525 F.3d 211, 215 (2d

Cir. 2008) (noting “judicial authority to find facts relevant to sentencing by a preponderance

of the evidence” (internal quotation marks and alteration omitted)).

4

Zhang’s ability to read remained impaired for at least two and a half years, through

defendants’ trial. These factual findings, largely based on Zhang’s trial testimony, were not

clearly erroneous. See United States v. Cuevas, 496 F.3d at 267 (observing that factual

findings based on witness testimony “are entitled to particular deference” since credibility

assessment “is distinctly the province of the district court” (internal quotation marks and

citation omitted)). Such findings were sufficient to support “at least a three-level increase” 1

in the offense-level calculation. Sentencing Tr. at 5; see United States v. Guang, 511 F.3d

at 124 (collecting cases indicating that determination of injury level “presents a

predominantly factual issue, which we review for clear error”). Where a victim has been

beaten bloody and unconscious, requiring emergency hospitalization (even briefly) and

stitches, any reasonable person would conclude that the injury caused “extreme physical

pain.” See United States v. Eubanks, 593 F.3d 645, 651 (7th Cir. 2010) (upholding threelevel enhancement for injuries deemed “greater than . . . ‘significant’ but not quite ‘serious’”

where victim required four staples to close head wound and “almost lost consciousness”

(emphasis added)); cf. United States v. Tavares, 93 F.3d 10, 16 (1st Cir. 1996) (observing that

one-inch laceration requiring stitches and accompanied by “great deal of blood loss . . . might

well be thought [sufficiently] serious” to warrant four-level enhancement for “serious bodily
5

injury”). Similarly, where a person who has had a blinding liquid sprayed in his eyes

manifests continued difficulty reading apparent to the district court more than two years later,

a finding of protracted vision impairment is warranted.

Accordingly, we reject defendants’ Guidelines calculation challenge as without merit.

2. Substantive Reasonableness

Equally meritless are defendants’ claims that their sentences are substantively

unreasonable. Shi’s extortionate activities spanning a four-year period involved eight victims

and the use (not simply the threat) of violence. Although Lin’s crimes involved three victims,

he too used actual violence. These circumstances by themselves preclude us from finding that

the challenged sentences – within defendants’ Guidelines ranges – are substantively

unreasonable. See Rita v. United States, 551 U.S. 338, 347 (2007) (noting that Guidelines

sentence “significantly increases the likelihood that the sentence is a reasonable one”); United

States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). Evidence that defendants made efforts

to rehabilitate themselves in prison – e.g., by learning English – does not move the challenged

sentences outside the broad range of reasonable punishments available to the district court.

See United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008).

We have considered defendants’ remaining arguments on appeal and conclude that

they are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, Clerk of Court