FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 July 29, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-16033

Non-Argument Calendar

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D. C. Docket No. 04-00016-CR-6

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ALBERT YOUNG, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Georgia

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(July 29, 2005)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

Albert Young appeals his 199-month sentence imposed for robbing a bank
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and using a firearm during the commission of a robbery, in violation of 18 U.S.C.

§ 2113(a), (d) and 18 U.S.C. § 924(c). Young raises two issues on appeal.

I.

First, Young argues that his Sixth Amendment rights were violated because

the district court enhanced his sentence on the basis of facts that were found only

by a preponderance of the evidence, instead of by the beyond-a-reasonable-doubt

standard required by United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). 

Young’s argument is misplaced, however, because he waived his Sixth

Amendment rights pursuant to his plea agreement.

A defendant is permitted to waive certain constitutional rights through a plea

agreement, so long as the agreement was made knowingly and voluntarily. Parke

v. Raley, 506 U.S. 20, 28–29, 113 S. Ct. 517, 523 (1992); United States v. Brown,

117 F.3d 471, 476 (11th Cir. 1997). In Blakely v. Washington, 542 U.S. __, 124 S.

Ct. 2531 (2004), the Supreme Court specifically stated that a defendant may waive

his Sixth Amendment right to be sentenced only on the basis of facts found by the

jury or admitted by him. “[N]othing prevents a defendant from waiving his

Apprendi rights. When a defendant pleads guilty, the [government] is free to seek

judicial sentence enhancements so long as the defendant either stipulates to the

relevant facts or consents to judicial factfinding.” Blakely, 124 S. Ct. at 2541. 
 There are two types of Booker error. The first is the constitutional error, which Bennett 1

waived his right to challenge in his plea agreement. The second is the statutory error of

“misappl[ing] the guidelines by considering them as binding as opposed to advisory.” United

States v. Shelton, 400 F.3d 1325, 1330–31 (11th Cir. 2005). Because Bennett filed his brief after

the Supreme Court issued its decision in Booker and he argues only constitutional error,

however, we need not consider whether there was statutory error in this case. See United States

v. Silvestri, 409 F.3d 1311, 1338 n.18 (11th Cir. 2005) (“[A]n issue not raised in a party’s initial

appellate brief is considered waived . . . .”). 

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Here, the plea agreement signed by Young and his counsel specifically

stated that Young “consent[ed] to being sentenced under the United States

Sentencing Guidelines, waive[d] any right to have a jury resolve and decide

sentencing issues, including possible enhancements to his sentence, waive[d] any

right to have sentencing issues, including possible enhancements to his sentence

presented to a grand jury, [and] expressly confer[red] upon the court the right to

decide any and all sentencing issues by a preponderance of the evidence standard.” 

Young does not contend that his waiver was uninformed or involuntary. 

Therefore, Young waived his Sixth Amendment rights and his Booker argument is

foreclosed.1

II.

Second, Young contends that the district court erred in applying a six-level

enhancement pursuant to U.S.S.G. § 2B3.1(b)(3)(C) because one of the robbery

victims sustained a permanent or life-threatening injury. The court applied the

enhancement because Beverly Conner, one of the bank tellers present during the
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robbery, suffered a heart attack immediately afterward. Young argues that the

district court erroneously enhanced his sentence because there was no evidence in

the record to suggest that Conner’s injury was either permanent or life-threatening. 

“This Court reviews the district court’s application of the sentencing

guidelines de novo and its findings of fact for clear error.” United States v. Grant,

397 F.3d 1330, 1332 (11th Cir. 2005). “The severity of a victim’s injuries is a

factual determination and thus reviewed for clear error.” United States v. Price,

149 F.3d 352, 353 (5th Cir. 1998). “[W]e will not find clear error unless our

review of the record leaves us with the definite and firm conviction that a mistake

has been committed.” United States v. White, 335 F.3d 1314, 1319 (11th Cir.

2003) (internal marks omitted).

The sentencing guidelines provide for a six-level enhancement if any victim

of a robbery sustained a “[p]ermanent or life-threatening bodily injury.” U.S.S.G.

§ 2B3.1(b)(3)(C). “Permanent or life-threatening bodily injury” is defined as

“injury involving a substantial risk of death; loss or substantial impairment of the

function of a bodily member, organ, or mental faculty that is likely to be

permanent; or an obvious disfigurement that is likely to be permanent.” Id.

§ 1B1.1, cmt. n.1(J). We have said that this language “encompasses injuries that

may not be terribly severe but are permanent, hence the disjunctive: ‘permanent or
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life-threatening injuries.’” United States v. Torrealba, 339 F.3d 1238, 1246 (11th

Cir. 2003). 

We discern no clear error in the district court’s determination that Conner’s

injury was “permanent or life-threatening,” as defined by the guidelines. The

record shows that immediately following the robbery Conner suffered a heart

attack and had to be taken by ambulance to the hospital. She was hospitalized for

four days and had to undergo a cardiac catheterization. Conner’s treating

physician indicated that her injuries are permanent; she will require a lifetime of

medical care as a result of her heart attack. Conner stated that, because of the heart

attack, she has to take four different medications and will have to continue doing

so for the rest of her life. 

Although Conner’s heart attack was (fortunately) not as serious as it may

have been, it has permanently affected her health. Furthermore, given that heart

attacks are often fatal, we see no error in the district court’s conclusion that even a

relatively minor heart attack is an “injury involving a substantial risk of death.” 

See U.S.S.G. § 1B1.1, cmt. n.1(J). Therefore, we conclude that it was not clearly

erroneous for the district court to apply the six-level enhancement for causing a

permanent or life-threatening injury under § 2B3.1(b)(3)(C). 

AFFIRMED.