* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

May 2, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40233

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SON VAN LE,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:04-CR-472-ALL

--------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Son Van Le appeals from one count of assault with a dangerous

weapon within maritime and territorial jurisdiction in violation of

18 U.S.C. §§ 7(1), 113(a)(3).

Le argues that the district court committed clear error by

increasing his offense level by five based upon a “serious bodily

injury” inflicted on the victim, Hieu Thanh Nguyen. We review the

district court’s § 2A2.2(b)(3)(B) five-level increase for clear
No. 05-40233

-2-

error. See United States v. Villanueva, 408 F.3d 193, 203 & n.9

(5th Cir.), cert. denied, 126 S. Ct. 268 (2005). 

Section 2A2.2(b)(3)(B) requires a five-level increase to a

base offense level if the victim of the offense sustained serious

bodily injury. “‘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 surgery, hospitalization, or physical

rehabilitation.” § 1B1.1 cmt. n.1(L); see § 2A2.2 cmt. n.1. 

The record reflects that Nguyen required medical treatment for

the stab wound inflicted by Le. See § 1B1.1 cmt. n.1(L); see

§ 2A2.2 cmt. n.1. Testimony from a treating physician revealed

that two layers of sutures were necessary and a Coast Guard medical

technician testified that there was a great deal of blood down

Nguyen’s back and front side. The district court noted that Nguyen

informed the probation officer that the stab wound was the most

extreme pain he had ever felt. See United States v. Puig-Infante,

19 F.3d 929, 943 (5th Cir. 1994). Accordingly, from the record as

a whole, the district court did not commit clear error in applying

the five-level increase. See Villanueva, 408 F.3d at 203 & n.9. 

Le argues that the district court erred in applying a 

four-level increase for the use of a dangerous weapon. He contends

that the element of a dangerous weapon was already accounted for in

the statute of conviction, therefore the district court did not

need to count it again as part of his offense level. We review
No. 05-40233

-3-

this issue for plain error as Le raises it for the first time on

appeal. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005).

Le cannot demonstrate plain error as the relevant guideline

does not prohibit double-counting. See United States v. Box, 50

F.3d 345, 359 (5th Cir. 1995); § 2A2.2. 

Le finally argues that the district court’s five-level

increase for “serious bodily injury” constituted a departure from

the guidelines. Le further argues that the court’s departure was

compounded by the court’s failure to articulate its reasons and its

reliance on outside factors such as Le’s criminal history, racial

motivations, and prior encounters with Nguyen, to increase Le’s

sentence.

The district court’s sentence was reasonable as the record

reflects that the district court acknowledged that the guidelines

were advisory, considered the 18 U.S.C. § 3553 factors, and

sentenced Le within the guideline range. See Mares, 402 F.3d at

519; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

AFFIRMED.