UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. WAMBLI MILLS, Defendant - Appellant. No. 19-1472 (D.C. No. 1:18-CR-0 0415-REB-JMC-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , HOLMES , and EID , Circuit Judges.

________________ _________________ Wambli Mills was convicted by a jury of one count of Sexual Abuse Committed Within Indian Country and one count of Aggrav ated Sexual Abuse Committed Within Indian Country. See 18 U.S.C. §§ 1153, 2241, 2242(2)(B). At sentencing, and over Mr. Mills’ objection, the district court applied a two-level enhancement under United States Sentencing Guideline § 2A3.1(b)(4)(B) (U.S. Sent’g Comm’n 2018) based on what it found was the “credible testimony of

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 15, 2020 Christopher M. Wolpert Clerk of Court2 the victim that she experi enced extreme physical pain, 10 on a scale of 1 to 10, caused by [Mr. Mills’] repeated anal penetration.” R., Vol. VII at 554. 1 Mr. Mills argues that the court’s finding was clearly erroneous. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I Mr. Mills and his victim, J.H., knew each other from school and J.H. considered him a friend. On the day of the assault, J.H. bou ght some alcohol and

invited Mr. Mills to drink with her. Th e two met up and walked to Mr. Mills’ house where they proceeded to drink outside on the porch. A few hours later, J.H. asked Mr. Mills if she coul d use the bathroom and he agreed. By this time J.H. was very dr unk. Upon leaving the bathroom, J.H. and

Mr. Mills walked to his bedroom wh ere J.H. passed out on the bed. When J.H. awoke, she observed that Mr . Mills was crying and so she stroked

his hair. J.H. then asked Mr . Mills if she could sleep on his bed for a while longer. The last thing J.H. remembered before pa ssing out again was Mr . Mills standing next

to the bed. The next time J.H. woke up, she said that Mr. Mills pulled off her clothes (leggings and underwear) and turned her over onto her stom ach. At the same time, she began to scream and told Mr. Mills “ don’t” and “stop.” R., Vol. VII at 84.

1 Mr. Mills was sentenced to 200 mont hs in prison on each count, to run concurrently, followed by a seven-year term of supervised release.3 But Mr. Mills did not stop; instead, he forced his penis, more than once, into J.H.’s anus before she got up and ran for help. Law enforcement officer Anthony Garcia was investigating an unrelated crime nearby when he heard a female screaming for help. That female was J.H., whom Lt. Garcia observed running fro m a field without any clothi ng below her waist. “She was looking past me. She ju st had this lost look and—but she was crying. She had a lot of mucus coming from her nose.” Id. at 140. A day later, J.H. felt pain a nd “didn’t feel like moving.” Id. at 91. Defecating was “really painful.” Id. at 92. Two days after the as sault, J.H. underwent a sexual assault examination, including an examination of her “vag inal region” and her “anal region.” Id. at 299. The examining nurse did not identify an injury to J.H.’s anal region; however, she testified that because the anal sphincter allo ws for stretching an anal injury cannot always be de tected. At trial, J.H. desc ribed the anal penetrations as physically “[p]ainful.” Id. at 84. When asked “[o]n a scale of 1 to 10, 10 being the worst, how badly di d it feel?” J.H. responded “[l]ike a 10.” Id. Mr. Mills raises one issue on appeal—whe ther the district court’s finding that J.H. suffered extreme physical pain was clearly erroneous because it was “based only on the victim’s vague and subjective asse ssment of her pain caused by the anal penetration and in the absen ce of any physical injury fo und by [the examining nurse]4 and in the absence of any contemporaneous complaints of extr eme pain.” Aplt. Opening Br. at 11. 2

II “When reviewing the district court’s calculation of the guidelines, we review legal questions de novo and factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts.” United States v. Cortes-Gomez , 926 F.3d 699, 707-08 (10th Cir. 2019) (internal quotation marks omitted). “Factual findings are clearly err oneous only if they are without factual support in the record or if this court, considering all th e evidence, is left with a

definite and firm conviction that a mistake has been made.” Id . at 708.

III Section § 2A3.1(b)(4)(B) of the Se ntencing Guidelines provides for a

two-level enhancement when the sexual assault “victim su stain[s] serious bodily injury.” Relevant here, a “serious bodily injury” is defined as an “injury involving extreme physical pain.” U SSG § 1B1.1 app. 1(M). At the outset, we note that the distri ct court did not impose the enhancement “just on the fact that cr iminal sexual abuse occurre d,” which would be an “impermissible double-counting.” United States v. Jim , 786 F.3d 802, 816 (10th Cir. 2015). As we explained in Jim , the “injuries described [i n § 1B1.1] fall outside

2 Mr. Mills briefly mentions, but then waives, other alleged errors, either because there was no plain error or no good faith argument can be made to pursue them.5 the standard or heartland range of injuri es that could be expected in a baseline offense of criminal sexual abuse,” and th erefore, do not implicate “impermissible double-counting.” Id. Here, separate from the act of criminal sexual abuse, the court considered whether J.H. suffered extreme physical pain. The question then becomes whether J.H. ’s testimony was adequate to support the district court’s finding th at she experienced extreme physi cal pain. In this regard, Mr. Mills’ first argument is th at J.H.’s testimony was vague. It was not; instead, J.H. provided context by appl ying a scale. Next, Mr. Mills maintains J.H.’s te stimony was subjective, and therefore inadequate. But as the gove rnment points out, pain is subjective. Here, J.H. testified that she experienced extreme pain. More to the point, th e court was the fact-finder at sentencing and it found that J.H’s testimony wa s credible. Because a district court’s “credibility determination commands even greater deference to the trial court’s findings than do other findings of fact[, w]e . . . especially defer to a district court’s findings on witness credibility.” United States v. Jordan , 806 F.3d 1244, 1252 (10th Cir. 2015) (citation, brackets, and internal quotation marks omitted). Last, Mr. Mills argues that something more than the victim’s testimony is needed to establish extreme physical pain. But the cases he re lies on are inapposite. For example, United States v. Guang , 511 F.3d 110 (2d Cir. 2007), concerned a different type of “serious bodily injury” that the govern ment attempted to use to support an enhancement—perman ent or life-threatening injuri es. In this context, the court recognized that “[w]here substan tial impairment is not obvious, something6 more than the generalized and subjective im pression of the victim is required in the way of proof.” Id. at 125. But neither Guang nor any of the other authorities Mr. Mills cites require such additional ev idence when it comes to evaluating pain. In sum, the district court’ s finding that J.H. experien ced extreme physical pain is not clearly erroneous. 3

IV The judgment of the dist rict court is affirmed.

Entered for the Court

Jerome A. Holmes Circuit Judge

3 In his reply brief, Mr. Mills raises fo r the first time an argument that he did not make in either the district court or his opening brief, which is that “the pain scale method of determining whether a victim suffe red ‘extreme physical pain’ is arbitrary and unreliable, and . . . it vi olates due process to enhan ce a sentence on that basis.” Aplt. Reply Br. at 1. “In th is Circuit, we generally do not consider arguments made for the first time on appeal in an appellant ’s reply brief and deem those arguments waived.” United States v. Leffler , 942 F.3d 1192, 1197 (10th Cir. 2019). While “we have left open the door for a criminal defe ndant to argue error in an opening brief and then allege plain error in a reply brie f after the Government asserts waiver,” id. at 1198, the door still has hinges, and it does not swing so wide as to allow Mr. Mills to raise an entirely new argumen t for the first time in his reply brief, particularly without any mention of plain error. As such, we cons ider the argument waived.