In the

United States Court of Appeals

For the Seventh Circuit

Nos. 00-2269 & 00-2723

United States of America,

Plaintiff-Appellee,

v.

Mark Bogan and Tony F. Calhoun,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 99 CR 91--Barbara B. Crabb, Chief Judge.

Argued April 10, 2001--Decided September 25, 2001

 Before Coffey, Rovner, and Diane P. Wood,

Circuit Judges.

 Coffey, Circuit Judge. On September 16,

1999, a federal grand jury returned a

two-count indictment charging the

appellants Mark Bogan and Tony Calhoun,

prisoners at FCI-Oxford, a federal prison

in Adams County, Wisconsin, with using a

deadly and dangerous weapon to assault a

corrections officer, 18 U.S.C. sec.

111(a), and assaulting a corrections

officer with the intent to commit murder,

18 U.S.C. sec. 113(a). After a two-day

jury trial, the jury returned a verdict

of guilty on both counts. Bogan and

Calhoun appeal their convictions,

alleging a constellation of errors

throughout the proceedings. We affirm.

I. Factual Background

 On September 6, 1999, Corrections

Officer Matthew Degenhardt conducted a

random cell inspection in the Waupaca

Housing Unit at FCI-Oxford, where Bogan

and Calhoun both were confined.

Degenhardt conducted the inspection

shortly after he began his shift at 4:00

p.m. while many inmates in the unit were

away on various work and activity

assignments in order that he might avoid

confrontations with the inmates. Noting

that Bogan was absent from his cell,

Degenhardt proceeded to search it. In the
cell, the corrections officer found three

large coffee-creamer containers filled

with sugar, two one-pound bags of

unopened sugar, and more than two bags of

brown sugar, all of which are commonly

used to make intoxicants in prison and

thus contraband. In addition, Degenhardt

discovered a number of postage stamp

booklets, commonly used as currency or

barter in the purchase of prison-made

intoxicants and also contraband.

Degenhardt seized the contraband listed

and returned to the officer station,

which is located within the common area

of the Waupaca Unit, and proceeded to

inventory the confiscated items.

 Officer Degenhardt commenced counting

the stamps in the station, but before he

could complete the task, he noticed that

it was time for the inmates to return

from their work and activity assignments.

Officer Degenhardt placed the stamps in a

desk drawer, locked the officer station,

and waited near the housing unit’s door,

monitoring the inmates as they returned. 

 After the inmates had returned,

Degenhardt returned to the officer

station, in order to complete the

inventory of the materials seized. Bogan

approached Degenhardt at the station and

told him that he wanted to talk, and at

this time Degenhardt observed that

Calhoun was standing nearby. A nearby

inmate, Miquel Jackson, heard Bogan

remark to another inmate that he was

going to "steal on," or beat, Degenhardt

unless Degenhardt returned the items

seized from his cell.

 Without responding to Bogan’s request,

Officer Degenhardt returned to the

officer station and sat down at the desk.

Bogan followed Degenhardt into the

station. Once within the station, Bogan

asked Degenhardt in a hostile tone,

"where are my stamps?" Degenhardt did not

reply. Bogan then picked up and threw the

office chair across the room and dumped

the seized sugar onto the desk. Concerned

for his safety, Degenhardt activated his

body alarm and twice told the control

center that he needed immediate

assistance. Bogan again demanded his

stamps, and Degenhardt once again

declined to respond. At this time, Bogan

grabbed Degenhardt by the shirt and threw

him to the floor. While ducking his head

in an attempt to protect himself,
Degenhardt was able to observe Calhoun

enter the station. Over the course of the

next minute, Degenhardt received numerous

blows to his head and face, resulting in

cuts, bruises, tooth damage, as well as a

fractured left-eye socket. The

altercation ended when Bogan and Calhoun

abruptly terminated their attack and fled

the scene. Degenhardt later identified

Bogan and Calhoun as the two prisoners

who had violently assaulted him.

 During the attack, inmate Kelly Hilpipre

had been sitting in a phone booth,

approximately ten feet away from the

officer station and observed the assault.

Hilpipre saw the two men beat Degenhardt

with a telephone and a clothes iron,

though at the time of the incident he did

not know the names of the prisoners

involved in the attack. While having a

telephone conversation with his family,

which was tape recorded and later played

for the jury, Hilpipre described the

attack and exclaimed that "they’re trying

to kill him." During the investigation

five photographs of inmates were

exhibited to Hilpipre, one of which was

of Calhoun and two of which were of

Bogan. Hilpipre identified Bogan and

Calhoun as the inmates he had observed

assaulting and beating Officer

Degenhardt. He further identified Bogan

as the inmate who had assaulted Officer

Degenhardt with a clothes iron. During

Bogan’s and Calhoun’s trial, Hilpipre

reaffirmed his identification of Bogan

and Calhoun as the inmates involved in

the attack upon Degenhardt. He went on to

describe the severity of the attack and

explained his tape-recorded exclamation

in more detail, testifying that he

believed that Bogan and Calhoun were

trying to kill Degenhardt:

When I seen [sic] him being struck in the

head and being subdued from the back and

the repeated blows to the head by what I

thought were deadly weapons, in my

opinion that’s when I realized that this

wasn’t just a fight or an ordinary, or if

there is such a thing as an ordinary

assault.

 Other physical evidence corroborated

Hilpipre’s and Degenhardt’s

identifications, including Calhoun’s

wrist watch with a broken wrist band,

which was discovered by investigators in

the officer station immediately following
the attack. Additionally, investigators

found a blood-stained t-shirt bearing

Bogan’s name tag stuffed in a nearby

trash can. DNA analysis confirmed that

the blood on the t-shirt was

Degenhardt’s. 

 Ten days after the attack, a grand jury

sitting in the Western District of

Wisconsin indicted both Bogan and Calhoun

with assaulting a corrections officer

with a deadly weapon and indicted Bogan

also with assaulting a corrections

officer with the intent to kill. Prior to

trial, Bogan and Calhoun moved to

suppress the identification testimony of

Hilpipre on the grounds that the

photographic lineup had been unduly

suggestive./1 Bogan moved to exclude

Hilpipre’s lay opinion testimony that the

defendants were "trying to kill"

Degenhardt, arguing that it did not meet

the requirements of Federal Rule of

Evidence 701. The court overruled the

objection and admitted this testimony,

finding that Rule 701 allowed a lay

witness to provide an opinion regarding a

defendant’s intent. Furthermore, Bogan

and Calhoun moved to exclude evidence

that the sugar seized from their cell was

used to make wine and the postage stamps

were used in the prison as currency to

purchase, among other things, prison-made

wine. The district court also denied this

motion, ruling that the evidence was

relevant to supplying a motive for the

defendants’s assault on Officer

Degenhardt and was not so prejudicial as

to outweigh its significant probative

value. 

 After a two-day trial, a jury convicted

the defendants on all counts. During

sentencing, the district court found,

among other things, that the defendants

had used a dangerous weapon (namely, the

clothes iron), U.S.S.G. sec. 2A2.2(b)

(2)(B), in the assault and had inflicted

serious bodily harm upon Officer

Degenhardt, U.S.S.G. sec. 2A2.1(b)(1)(B).

Each guideline application resulted in a

separate four-level upward adjustment in

offense level, resulting in an eightlevel total adjustment for each

defendant. Based upon Bogan’s and

Calhoun’s resulting adjusted offense

levels and criminal history category, the

court sentenced Bogan to a prison term of

125 months and Calhoun to a term of

imprisonment of 120 months, to be served
consecutively to those terms that they

were presently serving. The

defendantsappeal.

II. Issues

 Bogan raises three issues in this

appeal. Initially he contends that the

trial court abused its discretion in

admitting Hilpipre’s testimony that he

was "trying to kill" Degenhardt as set

forth in Federal Rule of Evidence 701.

Second, Bogan claims that the evidence

was insufficient to sustain his

conviction. Finally, Bogan claims that

the trial judge committed error when she

found at sentencing that Bogan had used a

deadly weapon and furthermore that the

court’s finding that Degenhardt had

sustained severe physical injury was also

in error. Calhoun raises only one

issue:/2 that the district court erred

in admitting evidence pursuant to Federal

Rule of Evidence 404(b) of his prior

wine-making activity.

III. Discussion

A. Hilpipre’s Opinion Testimony

 Bogan initially contends that the trial

court abused its discretion in admitting

Hilpipre’s exclamatory statement that he

believed Bogan and Calhoun were "trying

to kill" Officer Degenhardt. The decision

of "’whether to admit testimony under

Rule 701 is committed to the sound

discretion of the trial court and a

ruling will not be reversed absent a

finding that the trial court abused its discretion.’"

United States v. Stormer, 938 F.2d 759,

761 (7th Cir. 1991) (quoting United

States v. Towns, 913 F.2d 434 (7th Cir.

1990)) (internal citations omitted). A

determination made by a trial judge

regarding the admissibility of evidence

"’is treated with great deference because

of the trial judge’s first-hand exposure

to the witnesses and the evidence as a

whole, and because of [her] familiarity

with the case and ability to gauge the

likely impact of the evidence in the

context to the entire proceeding.’"

United States v. Wash, 231 F.3d 366, 371

(7th Cir. 2000) (quoting United States v.

Torres, 977 F.2d 321, 329 (7th Cir.

1992)).

 Rule 701 of the Federal Rule of

Evidences provides:
If the witness is not testifying as an

expert, the witness’ testimony in the

form of opinions or inferences is limited

to those opinions or inferences which are

(a) rationally based on the perception of

the witness, (b) helpful to a clear

understanding of the witness’ testimony

or the determination of a fact in issue,

and (c) not based on scientific,

technical or other specialized knowledge

within the scope of Rule 702.

 Bogan does not contest the fact that

Hilpipre was able to clearly view the

altercation in the officer station and

also that his opinion was rationally

based on his observation of the incident.

Similarly, Bogan also does not challenge

the court’s ruling that Hilpipre’s

exclamation was helpful to the jury.

Bogan’s acknowledgments thus satisfy the

requirements of Rule 701 as previously

stated. Bogan’s claim that the testimony

should have been excluded rests upon a

novel, though unconvincing, argument. The

gist of Bogan’s argument is that

Hilpipre’s statement would be too helpful

to the jury--that Hilpipre himself

concluded that Bogan intended to kill

Degenhardt, and thus did not allow the

jury to draw that conclusion for itself.

 According to Bogan’s theory, then, any

statement describing a third person’s

observations that forms the basis for a

conclusion regarding a defendant’s

thoughts and motivations would be

presumptively inadmissible. Bogan offers

no case law in support of his theory that

lay opinions regarding mental states are

presumptively inadmissible. Indeed, such

an argument runs contrary to case law

precedent. We have previously held that

"lay opinion testimony as to the mental

state of another is indeed competent

under [Rule 701]." United States v.

Guzzino, 810 F.2d 687, 699 (7th Cir.

1987); see also Bohannon v. Pegelow, 652

F.2d 729, 731-32 (7th Cir. 1981).

 Bogan offers another reason in support

of his argument that the experienced and

competent trial judge abused her

discretion in admitting Hilpipre’s

statement. Bogan speculates that while

Hilpipre was speaking on the phone he

realized that his conversation was being

recorded, and that, as he observed the

attack, Hilpipre consciously decided to
proclaim that Bogan was "trying to kill"

Degenhardt in order that it might later

help him to strike a bargain with the

government to reduce his sentence in

exchange for his testimony. Bogan’s

speculation borders on the fantastic. To

suppose that in the midst of an

observation of a violent altercation

where two inmates are observed savagely

attacking a prison guard, the observing

witness would have the presence of mind

to think calmly and rationally not about

the attack itself, but rather about how

he might manipulate the system in an

attempt to reduce his sentence simply

lacks even a scintilla of substantiation

in the record. Ultimately, the decision

as to admissibility of Hilpipre’s

statement lies within the sound

discretion of the trial judge. Wash, 231

F.3d at 371. We are confident that had

Hilpipre truly been attempting to

manipulate the system, as Bogan

speculates, that the trial judge would

have uncovered the ruse because she had

the opportunity and ability (gained from

years of trial experience) to gauge

Hilpipre’s credibility by hearing his

answers as well as observing his "facial

expressions, tone of voice, eye contact,

posture and body movements," all of which

are not contained in the cold pages of an

appellate record. United States v. Woods,

233 F.3d 482, 484 (7th Cir. 2000).

Accordingly, Bogan’s contention is

meritless and we hold that the trial

judge did not abuse her discretion in

admitting Hilpipre’s statement.

 

B. Evidence of Wine-Making Activity

 Calhoun argues that the district court

committed error in permitting Degenhardt

to testify about the defendants’s winemaking activities. Calhoun objected not

only to Degenhardt’s testimony that he

seized intoxicants from their cell in May

1999, but also evidence of the September

1999 seizure that precipitated the

beating as well as Degenhardt’s

explanation that the sugar seized is

commonly used by inmates to make

intoxicants and that postage stamps, in

the amount seized, are commonly used by

inmates as barter to purchase

intoxicants. We examine each argument in

turn, keeping in mind that we review the

trial judge’s ruling to admit the

disputed evidence under an abuse of
discretion standard. United States v.

Denberg, 212 F.3d 987, 992 (7th Cir.

2000). 

1. Evidence of the May 1999 Seizure

 Under Federal Rule of Evidence 404(b),

"evidence of other misconduct is not

admissible to demonstrate that the

defendant acted in conformity therewith,

but may be admissible for other purposes,

such as proof of motive, opportunity,

intent, preparation, plan, knowledge, or

identity." United States v. Lloyd, 71

F.3d 1256, 1264 (7th Cir. 1995). In

determining the admissibility of Rule

404(b) evidence we utilize the familiar

four-part test and examine whether:

(1) the evidence is directed toward

establishing a matter in issue other than

the defendant’s propensity to commit the

crime charged, (2) the evidence shows

that the other act is similar enough and

close enough in time to be relevant to

the matter in issue, (3) the evidence is

sufficient to support a jury finding that

the defendant committed the similar act,

and (4) the evidence has probative value

that is not substantially outweighed by

the danger of unfair prejudice. 

Denberg, 212 F.3d at 992-93.

 Calhoun has failed to support his

contention that the district court abused

its discretion in admitting Officer

Degenhardt’s testimony about the May 1999

seizure with case law, much less citation

to the record. Calhoun contends that

there is "no identity of the seizure of

the wine-making material with the

assault." But this statement defies

reasonable explanation. The government’s

theory of the case was that Bogan and

Calhoun were cellmates at the time Degen

hardt seized the intoxicants in May 1999

and were upset that Degenhardt had once

again thwarted their underground winemaking and selling enterprise. According

to the government’s theory, Bogan and

Calhoun hoped to prevent future

interference by Degenhardt with a violent

assault upon him. In other words, the May

1999 seizure explains Calhoun’s motive

for beating Degenhardt, for after all,

the September 1999 seizure was from only

Bogan’s cell, not Calhoun’s. Accordingly,

Degenhardt’s testimony regarding the May

1999 seizure satisfies the first prong of
the test.

 Calhoun also alleges that the probative

value of the evidence was substantially

outweighed by its prejudicial effect.

Again, Calhoun offers little in the way

of case law in support of his conjecture.

Instead, Calhoun merely argues that the

evidence of prior wine making was

prejudicial without ever offering an

explanation for his assertion. United

States v. McClellan, 165 F.3d 535, 550

(7th Cir. 1999) ("We repeatedly have made

clear that perfunctory and undeveloped

arguments . . . are waived [on appeal]")

(citation omitted). In any event, we note

that relevant evidence is inherently

prejudicial. Lloyd, 71 F.3d at 1265. In

this instance, the evidence of

Degenhardt’s seizure of the defendants’s

wine-making materials was exceedingly

probative of Calhoun’s motive to assist

Bogan in the attack upon Officer

Degenhardt. We remain unconvinced (as did

the trial judge) that the evidence of the

wine-making activity would serve to

induce a jury to decide the case upon

emotion, rather than upon the evidence

presented. Accordingly, we are satisfied

that the trial court carefully considered

the admissibility of the May 1999 seizure

and did not abuse her discretion in

admitting Degenhardt’s testimony. 

2. Evidence of the September 1999 Seizure

and Degenhardt’s Explanations 

 Calhoun also asserts that evidence of

the September 1999 seizure and

Degenhardt’s corresponding explanation of

the importance of sugar and stamps in

Bogan’s and Calhoun’s enterprise should

have been excluded. We see no need to

engage in our standard Rule 404(b)

analysis to resolve Calhoun’s meritless

argument because it is clear from the

record that the evidence of the September

1999 seizure was "intricately related" to

the assault upon Officer Degenhardt. See

United States v. Ryan, 213 F.3d 347, 349

(7th Cir. 2000) (dispensing with 404(b)

analysis when evidence was intricately

related to the offense charged in the

indictment). This circuit has a wellestablished line of precedent that allows

evidence of uncharged acts to be

introduced at trial if the evidence is

"intricately related" to the acts charged

in the indictment. United States v.

Gibson, 170 F.3d 673, 680 (7th Cir.
1999). Under the "intricately related"

doctrine, the admissibility of Bogan’s

and Calhoun’s wine-making turns on:

whether the evidence is properly admitted

to provide the jury with a complete story

of the crime on trial, whether its

absence would create a chronological or

conceptual void in the story of the

crime, or whether it is so blended or

connected that it incidentally involves,

explains the circumstances surrounding,

or tends to prove any element of, the

charged crime.

United States v. Ramirez, 45 F.3d 1096,

1102 (7th Cir. 1995) (emphasis added)

(internal quotations and citations

omitted).

 In the factual situation before us, the

evidence of the wine-making activity of

Bogan and Calhoun serves to complete and

answer a conceptual void in the history

of the crime. To the lay juror, most

likely unfamiliar with the manufacturing

of prison intoxicants and the currency of

the prison black market, it would seem

less than reasonable and likely that the

mere confiscation of a small quantity of

sugar and a few postage stamps would

serve to provoke a violent assault and

reaction of the magnitude testified to at

trial. Indeed, a pall of incredibility

might be cast upon the government’s case

if it claimed that two prisoners severely

assaulted and beat a prison guard merely

for confiscating such ordinary household

items (sugar and stamps). It is only when

the juror is informed of the panorama of

events and past history of the entire

picture of the production and sale of

liquor in a prison setting that the

violent attack after the confiscation of

the sugar and stamps makes sense. In

other words, the testimony of Degenhardt

regarding Bogan’s and Calhoun’s winemaking activity completed the story of

the crime charged and was "necessary to

enable the jury to fully understand and

make sense of" their vicious attack upon

Officer Degenhardt. Gibson, 170 F.3d at

682.

 Calhoun further argues that their winemaking scheme was so different from the

act of the charged crime that it should

have been excluded. But we have never

held that the uncharged criminal activity

under the intricately related doctrine
must be identical to the charged

activity. Indeed, in a similar case, we

held that evidence of a previous sexual

exploitation conviction was intricately

related to the prosecution of an arson

case because it was essential to tell a

complete story and explain the

defendant’s motive. See United States v.

Menzer, 29 F.3d 1223, 1233 (7th Cir.

1994) (defendant burned down dwelling

where his wife slept to prevent her from

reporting his ongoing sexual abuse of his

children). As in Menzer, the evidence of

Bogan’s and Calhoun’s wine-making

activities (and prior confiscation of

wine-making paraphernalia and proceeds)

are "exceedingly probative as to [their]

motive" to violently assault Officer

Degenhardt, who had on two separate

occasions thwarted their underground

entrepreneurial scheme. Id. at 1234. 

 Calhoun also offers a weak and

unconvincing argument in his attempt to

demonstrate that the district judge

abused her discretion in admitting the

evidence of the defendants’s wine-making.

In his argument, Calhoun reaching for

straws suggests that the government could

have shown their motive to beat Officer

Degenhardt simply by informing the jury

that he had confiscated contraband from

their cells, leaving out the details of

what he confiscated and for what purpose

the inmates used it. In short, he

contends that while the evidence of their

wine making might be relevant, it was too

prejudicial. But, as we noted earlier,

"’relevant evidence is inherently

prejudicial . . . . Rule 403 was never

intended to exclude relevant evidence

simply because it is detrimental to one

party’s case; rather, the relevant

inquiry is whether any unfair prejudice

from the evidence substantially outweighs

its probative value.’" Lloyd, 71 F.3d at

1265 (quoting Cook v. Hoppin, 783 F.2d

684, 689 (7th Cir. 1986)) (emphasis in

original). "’Evidence is unfairly

prejudicial only if it will induce the

jury to decide the case on an improper

basis, commonly an emotional one, rather

than on the evidence presented.’"

Denberg, 212 F.3d at 994 (quoting United

States v. Long, 86 F.3d 81, 86 (7th Cir.

1996)). In this instance, the evidence of

Bogan’s and Calhoun’s wine-making "gave

the jury a more, not less, accurate

picture of the circumstances" surrounding

the charged crime, and the trial judge
did not abuse her discretion to admit it.

Ramirez, 45 F.3d at 1103.

C. Sufficiency of the Evidence

 At the conclusion of the government’s

case in chief and also at the conclusion

of the trial, Bogan moved for judgement

of acquittal, contending that the

evidence was insufficient to establish

his guilt. Bogan renews his argument

here. A challenge to the sufficiency of

the evidence to support a conviction

poses a "nearly insurmountable burden."

United States v. Frazier, 213 F.3d 409,

415 (7th Cir. 2000). When reviewing a

sufficiency of the evidence claim, we

view the evidence and all reasonable

inferences that can be drawn from it in

the light most favorable to the

government. Id. Only where the record

contains no evidence, regardless of how

it is weighed, from which the jury could

find guilt beyond a reasonable doubt, may

an appellate court overturn the verdict.

United States v. Lundy, 809 F.2d 392, 396

(7th Cir. 1987).

 Bogan’s argument fails before it can get

off the ground. Bogan contends that "so

many varying stories were presented to

the jury regarding the altercation . . .

that no reasonable juror could have

concluded from the evidence that Bogan

forcibly assaulted Degenhardt through the

use of deadly or dangerous weapons."

Bogan points out that another inmate,

Miquel Jackson, also allegedly witnessed

the altercation and testified that he

never saw Bogan strike Degenhardt with a

weapon, contrary to Degenhardt’s and

Hilpipre’s testimony. Obviously this is a

credibility determination, which is

solely within the province of the jury.

United States v. Jefferson, 252 F.3d 937,

942 (7th Cir. 2001); United States v.

Pulido, 69 F.3d 192, 205 (7th Cir. 1995).

 In this case overwhelming evidence

existed linking Bogan to the attack.

Degenhardt testified that Bogan threw him

to the floor and violently assaulted him

when he was down. Degenhardt’s testimony

was corroborated by the testimony of an

inmate who observed the attack from ten

feet away, Hilpipre. Furthermore, both

Degenhardt’s and Hilpipre’s testimony was

corroborated by the physical evidence

found by the investigators, which

included a broken iron found in the
officer station, Bogan’s t-shirt covered

with Degenhardt’s (DNA identified) blood

found in a trash can shortly after the

incident, and Calhoun’s broken wrist band

and watch found in the officer station.

There is more than sufficient evidence to

support the jury’s verdict, and Bogan’s

argument that this evidence is

insufficient is without merit.

D. Sentencing Enhancement

 Bogan lastly appeals two sentencing

enhancements imposed in the trial court.

Initially, Bogan argues that the district

court erred in adjusting his offense

level upward by four levels for the use

of a dangerous weapon during the assault.

U.S.S.G. sec. 2A2.2(b)(2)(B) & sec. 1B1.1

cmt. n. 1(d) & (g). We review the

district court’s factual findings in

support of sentencing determinations for

clear error. United States v. Baker, 227

F.3d 955, 964 (7th Cir. 2000). Bogan

again points to the testimony of inmate

Jackson that Bogan only used his fists in

the assault, instead of the iron. But

Hilpipre clearly testified that Bogan

used a clothes iron to beat Officer

Degenhardt, and a broken clothes iron was

found at the scene. The sentencing judge

resolves credibility questions that arise

during the sentencing hearing, and in

this case she chose to believe Hilpipre

and Degenhardt and not Jackson. The

district court was entitled to

creditHilpipre’s version of the event

rather than that of Jackson, and we see

no reason to upset that credibility

determination. What is more, the

government charged Bogan with the use of

a dangerous weapon as an element of the

crime, and given the jury’s determination

of guilt beyond a reasonable doubt, the

court’s finding to the same at sentencing

cannot be clearly erroneous. 

 Bogan also argues that the sentencing

judge erred in concluding that Degenhardt

suffered "serious bodily injury" within

the meaning of the guidelines, and

therefore the district court erred in

imposing a four-level upward adjustment

in his offense level. U.S.S.G. sec.

2A2.1(b)(1)(B). Because Bogan argues that

the district court misinterpreted the

Sentencing Guidelines, our review is de

novo. United States v. Phillips, 239 F.3d

829, 847 (7th Cir. 2001). The Guidelines

define "serious bodily injury" in
pertinent part as an "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." U.S.S.G. sec. 1B1.1,

cmt. n. 1(j). The government submitted

reports of Degenhardt’s medical

treatment, and Bogan admits that

Degenhardt suffered lacerations requiring

sutures, a fractured eye-socket bone,

nerve damage to the left side of his

face, ongoing emotional distress and

migraine headaches, and the potential

loss of three teeth, but contends that

because Degenhardt did not "undergo a

prolonged hospital stay . . . or surgical

intervention" that he did not suffer a

serious bodily injury. In the past we

have held that where a defendant

inflicted facial scars on the victim, the

imposition of a six-level upward

adjustment in offense level for

"permanent or life-threatening bodily

injuries" was warranted. See Phillips,

239 F.3d at 848. Given the undisputed

nature of Degenhardt’s injuries, we are

convinced that Bogan’s argument that the

district court erred in finding that

Degenhardt suffered "serious bodily

injury" is without merit.

IV. Conclusion

 We hold that the district court did not

err in admitting either Hilpipre’s lay

opinion testimony or evidence of Bogan’s

and Calhoun’s wine-making activity.

Further, we hold that the evidence was

more than sufficient to support the

verdict against Bogan. Finally, we hold

that Bogan’s challenges to the trial

court’s sentencing determinations are

without merit. Bogan’s and Calhoun’s

convictions and sentences are AFFIRMED.

FOOTNOTES

/1 Before submitting their briefs, the defendants’s

attorneys notified the magistrate judge that they

were withdrawing this motion, and the magistrate

entered an order confirming the motion as being

withdrawn and striking the briefing schedule. 

/2 In his brief, Calhoun also raised the issue of

whether the district court erred in admitting

Hilpipre’s identification of the defendants from

a photographic lineup. At oral arguments, counsel

admitted that Calhoun’s trial counsel had waived
this issue when he withdrew his objection to the

identification. Therefore, we need not address

this issue.