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w . v i l l a no v a . e du/thir dc ir c uit_2015/300NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 14-3153

_____________ UNITED STATES OF AMERICA

v. JOSE MONTALBAN, Appellant

_____________ Appeal from the United States District Court for the Middle Distri ct of Pennsylvania

(D.C. Crim. No. 3: 13-cr-00001-001) District Judge: Malachy E. Mannion

______________ Submitted Under Third Ci rcuit L.A.R. 34.1(a) February 13, 2015

______________ Before: CHAGARES, JO RDAN, and VANASKIE, Circuit Judges

. (Opinion Filed: March 26, 2015)

______________ OPINION *

______________ VANASKIE, Circuit Judge

. Appellant Jose Montalban was convi cted and sentenced to 180 months’ imprisonment for assaulting a correctional o fficer with a plastic shank at the United

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 States Penitentiary, Canaan (“U.S.P. Canaan” ). On appeal, Montalban challenges two of the District Court’s evidentiary rulings and its conclusion that the assault resulted in “serious bodily injury” for purposes of cal culating his sentencing offense level under U.S.S.G. § 2A2.2( b)(3). For the reasons discussed be low, we will affirm the District Court’s judgment of conviction and sentence. I. The cafeteria at U.S.P. Canaan is staffed by inmate workers—like Montalban— whose activities are monitored by correctional officers designated “cook supervisors.” After dinner was served on December 28, 2012, Montalban attacked Cook Supervisor Andrew Wisniewski in an office adjoining the cafeteria. Montalba n repeatedly struck Wisniewski in the face with a sharpened plastic shank. Witnessing the assault, Cook Supervisor Mark Brennan activated a body al arm worn by officers at U.S.P. Canaan and rushed to Wisniewski’s aid. Additional offi cers responded and were eventually able to pin Montalban and put him in restraints. In the ensuing search, the officers recovered the shank from underneath Montalban’s body. Wisniewski, bleeding from his facial wo unds, was sent to the prison’s health services department for a medical assessment . Patricia Burgerhoff, a registered nurse, examined Wisniewski and clean ed his wounds before sending him to a local hospital for further treatment. At the hospital, Wisniewski received a total of nine stiches for three puncture wounds he sustained to the right side of his face during the attack.3 A grand jury in the Middle District of Pennsylvania subsequently indicted Montalban on one count of assa ulting a federal correctional officer, in violation of 18 U.S.C. § 111(a)(1) and (b), and one count of possessing contraba nd (the shank) in prison, in violation of 18 U.S.C. § 1791(a)(2). During the course of a three-day trial in February 2014, Wisniewski, Brennan, an d other responding officers testified about the attack, and Burgerhoff testified about her treatment of Wi sniewski. The Government also introduced the recovered shank into evidence. The District Court made two evidentiary rulings during trial th at are pertinent to this appeal. First, while Montalban’s coun sel sought to impeach Brennan’s credibility pursuant to Federal Rule of Evidence 609(a) by introducing evidence of a prior indecent assault conviction, the District Court limite d counsel’s questioning on the subject to: (1) the fact that Brennan had a prior conviction; and (2) the sentence he received. Second, the Court permitted Burgerhoff to testify that Wisniewski’s wounds were “consistent” with a sharp-ended object like the shank intr oduced into evidence , despite Montalban’s objection that such testimony went beyond the scope of permissible lay testimony under Rule 701. (App. at 321.) Following deliberation, th e jury convicted Montalba n on both the assault and contraband charges. At sentencing, the Dist rict Court concluded that Montalban caused “serious bodily injury” with in the meaning of U.S.S.G. § 2A2.2(b)(3), and ultimately imposed a 180-month term of impris onment. Montalban timely appealed. II.4 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review a district court’s rulings as to the admissibility of evidence for abuse of discretion, but, to the extent such decisions are based on an interpretation of the Federal Rules of Evidence, our review is plenary. United States v. Serafini , 233 F.3d 758, 768 n.14 (3d Ci r. 2000). “We apply clear error review to the District Court’s factual findings relevant to the Guidelines and exercise plenary review over the District Court’ s interpretation of the Guidelines.” United States v. Boney , 769 F.3d 153, 158 (3d Cir. 2014). III. A. Montalban argues that the District Court improperly limited his ability to impeach a testifying witness through the introduction of evidence of a prior criminal conviction. Admissibility of a prior conviction for impe achment purposes is go verned by Federal Rule of Evidence 609. This rule “is premised on the common sense proposition that one who has transgressed society’s norms by committi ng a felony is less lik ely than most to be deterred from lyi ng under oath.” Walden v. Georgia-Pacific Corp. , 126 F.3d 506, 523 (3d Cir. 1997) (citation and in ternal quotation marks omitte d). Accordingly, evidence that a testifying witness (otherthan the defendant in a crim inal case) was convicted of a crime “punishable by death or by imprisonment for more than one year . . . must be admitted, subject to Rule 403 . . . .” Fed. R. Evid. 609(a)(1)(A). Rule 403, in turn, allows a district court to exclude releva nt evidence if its potential to cause unfair5 prejudice substantially outweighs its pr obative value. Fed. R. Evid. 403. In this case, Montalban sought to im peach Brennan’s cred ibility by questioning him regarding a Pennsylvania conviction for i ndecent assault, a crime punishable by up to two years’ imprisonment. 1 Following a thorough discussion with counsel, the District Court limited questioning on the s ubject to the fact that the witness had a prior conviction punishable by a term of imprisonment of more than one year, and the sentence he received (six months’ probation). The Cour t forbade counsel from mentioning the name of the conviction or delving into the specific s of the crime, concluding that the potential for prejudice stemming from th is information substantia lly outweighed its limited probative value regarding Brennan’s characte r for truthfulness. Montalban’s counsel questioned Brennan according to these parameters, and, in delivering its jury instructions, the Court stated that the jury was allowed to consider the evidence of the conviction in deciding whether or not to believe Brennan a nd how much weight to give his testimony. The District Court appropriately applied Rule 609, conducted the required Rule 403 balancing, and instructed the jury on the proper purpos e for which it could consider Brennan’s conviction. Even if the District Court should have allo wed defense counsel to elicit the name of the criminal statute that formed the basi s for Brennan’s conviction, the error was harmless. There was abundant evid ence that Montalban attacked Wisniewski

1 Pennsylvania’s statute for indecent assault provides, in relevant part, that “[a] person is guilty of indecent assault if the person has indecent contact with the complainant . . . and the person does so with out the complainant’s consent[.]” 18 Pa. Cons. Stat. § 3126(a)(1).6 with a shank, and Brennan’s credibility was not essential to the Government’s case. See United States v. Johnson , 302 F.3d 139, 151 (3d Cir. 2002) (“A no n-constitutional trial error does not warrant reversal in circumstances where it is hi ghly probable that the error did not contribute to the judgment.”) (interna l citation and quotation marks omitted). B. Montalban next asserts that the District Court erred by letting a lay witness offer impermissible opinion testimony. Under Rule 701, a lay witness may offer testimony in the form of an opinion that is: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 [governing expert te stimony].” Fed. R. Evid. 701. Here, Montalban objected at trial and ma intains on appeal th at Burgerhoff, the treating nurse, should not have been permitted to opine th at the type and width of the wounds she observed on Wisniewski’s face we re “consistent” with a sharp-ended object like the shank introduced as ev idence by the Government. (App. at 321.) However, we agree with the District Court that this testimony hewed to th e constraints of Rule 701. Burgerhoff’s opinion was rationally based on, and provided a clear understanding of, the wounds she personally treated a nd photos of the shank she obser ved. It seems likely that no specialized knowledge was n eeded to conclude that a sharpened instrument of a particular size was “consistent” with the punctu re wounds she treated, but, even if such knowledge were needed, “we ha ve allowed professionals to give lay opinions when the7 opinions are based on personal knowledge of the issues, alon g with specialized experience.” United States v. DeMuro , 677 F.3d 550, 562 (3d Cir. 2012). Burgerhoff made a reasonable inference based on her own personal observations, and the District Court did not abuse its discre tion in admitting her testimony. 2
C. Pursuant to U.S.S.G. § 2A2.2(b)(3), the offense level applicable to an assault conviction under 18 U.S.C. § 111(a)(1) a nd (b) may be increased depending on the severity of the injury cause d. On appeal, Montalban ch allenges the District Court’s finding of “serious bodily injury” and resultant five-level increase of his offense level. Montalban contends that only the three-level increase fo r “bodily injury ” was warranted. 3 The commentary to the Gu idelines defines both “bodily injury” and “serious bodily injury.” Bodily injury is “any signific ant injury; e.g., an inju ry that is painful and obvious, or is of a type for which medica l attention ordinarily would be sought.” U.S.S.G. § 1B1.1 cmt. n.1(B). Serious bodily injury, by contrast, “means injury involving extreme physical pain or the protra cted impairment of a function of a bodily

2 Even if the District Court erred by admitting the testimony, we are convinced that any such error was harmless in light of the other evidence introduced against Montalban.

3 With the five-level increase the Dist rict Court imposed, Montalban’s total offense level was 31 and his corresponding se ntencing range under the Guidelines was 151-188 months. (App. at 607.) Had the Di strict Court instead imposed the three-level increase, Montalban would have faced an advi sory Guidelines range of 121-151 months.8 member, organ, or mental faculty; or requi ring medical intervention such as surgery, hospitalization, or physical rehabilitati on.” U.S.S.G. § 1B 1.1 cmt. n.1(L). After considering these competing definiti ons, the District Court stated “there is no question in my mind that b odily injury alone is insufficient and not called for by the presentation of evidence at the trial from whic h I sat and listened and saw the victim.” (App. at 605.) In applying the serious bod ily injury enha ncement, the District Court reasoned that multiple stab wo unds to the face “fits with in the category of extreme physical pain.” ( Id. at 606.) The District Court al so noted that Wisniewski was hospitalized (albeit not admitted overnight), and received medical in tervention in the form of nine stitches. As the Government no ted, Wisniewski “[o]bviously . . . receive[d] surgery. You can see them when he smiles, these scars.” ( Id. at 603.) Under these circumstances, the District C ourt did not clearly err in applying the serious bodily injury enhancement. See United States v. Corbin , 972 F.2d 271, 272 (9th Cir. 1992) (per curiam) (affirming serious b odily injury enhancement where victim was struck twice in the h ead, causing a laceration that required a two-layer closure using more than 25 sutures).
IV. For the aforementioned reasons, we will a ffirm the District Court’s judgment of conviction and sentence, ente red on June 23, 2014.