United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-2549

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the District

v. * of South Dakota.

*

Alvin Ronald Allery, Jr., * [UNPUBLISHED]

*

Appellant. *

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Submitted: November 6, 2002

Filed: November 12, 2002

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Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.

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PER CURIAM.

A jury found Alvin Ronald Allery, Jr. guilty of assaulting Timothy Carl Nelson

with intent to do bodily harm, in Indian Country, in violation of 18 U.S.C. §§ 1153

and 113(a)(3). At sentencing, the district court imposed a 4-level enhancement for

use of a dangerous weapon, see U.S.S.G. § 2A2.2(b)(2)(B); a 6-level enhancement

because the victim had suffered permanent bodily injury, see U.S.S.G

§ 2A2.2(b)(3)(C); a 2-level increase for obstruction of justice, see U.S.S.G. § 3C1.1;

a total offense level of 27; a Category I criminal history; and a resulting Guidelines

range of 70-87 months imprisonment. The district court sentenced Allery to 87

months imprisonment and 3 years supervised release. This appeal followed.
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Allery first argues the district court improperly denied his motion for a

judgment of acquittal, because the evidence did not show Allery used a knife to

assault Nelson. Based on our review of the trial testimony, see United States v. Stroh,

176 F.3d 439, 440 (8th Cir. 1999) (standard of review), we reject Allery's argument.

One eyewitness testified Allery pulled a knife from his sock and cut Nelson, and

another witness testified he saw Allery swing at Nelson with a knife, after which

blood hit the ground. A police investigator testified a knife was recovered from the

car in which Allery had fled the crime scene, and the car had blood on it, both inside

and out. Finally, the emergency room physician who treated the victim testified

Nelson had two facial lacerations consistent with knife wounds. See United States

v. Phelps, 168 F.3d 1048, 1056 (8th Cir. 1999) (elements of conviction under

§ 113(a)(3)). The jury was entitled to discredit Allery's conflicting testimony he only

pushed and did not stab Nelson. See United States v. Balanga, 109 F.3d 1299, 1301

(8th Cir. 1997).

Allery also argues the district court committed error at sentencing by applying

the 2-level obstruction-of-justice enhancement and by determining Nelson had

sustained a permanent or life-threatening injuring warranting the 6-level

enhancement. Contrary to Nelson's view, the district court correctly applied the

obstruction enhancement. The court specifically found Allery's trial testimony was

material and intentionally false, and we conclude these findings are not clearly

erroneous. See U.S.S.G. § 3C1.1, comment. (n.4(b) (perjury is conduct to which

§ 3C1.1 applies); United States v. Simms, 285 F.3d 1098, 1100 (8th Cir. 2002)

(standard of review), petition for cert. filed, (U.S. Oct. 16, 2002) (No. 02-6922);

United States v. Titlbach, 300 F.3d 919, 924 (8th Cir. 2002) (elements of perjury);

United States v. Willis, 997 F.2d 407, 416 (8th Cir. 1993) (sua sponte obstruction

enhancement), cert. denied, 510 U.S. 1050 (1994). The district court also did not

commit clear error in finding Nelson suffered a "permanent" injury given the treating

physician's testimony about the location, depth, and size of the lacerations (one of

which involved multiple skin layers) on Nelson's face, and the 50 stitches that were
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necessary. Further, at trial, the district court saw the victim and observed that the

disfigurement from the knife cut was obvious and likely to be permanent. See

U.S.S.G. §§ 2A2.2, comment. (n.1) (cross-referencing U.S.S.G. § 1B1.1 for definition

of permanent or life-threatening bodily injury), 1B1.1, comment (n.1(g)) (definition);

cf. United States v. Cree, 166 F.3d 1270, 1271-72 (8th Cir. 1999) (district court did

not clearly err in finding injury was permanent where victim suffered broken tooth,

bruises, facial cut requiring 17 stitches, and scar visible at trial 7 months later).

However, we note section 2A2.2(b)(3) expressly limits the cumulative increase

under U.S.S.G. § 2A2.2(b)(2) and (b)(3) to 9 levels. See U.S.S.G. § 2A2.2(b)(3)

("Provided, however, that the cumulative adjustments from (2) and (3) shall not

exceed 9 levels") (emphasis in original). Here, the district court imposed both a 4-

level dangerous-weapon increase under section 2A2.2(b)(2) and a 6-level permanentinjury increase under section 2A2.2(b)(3)(C), for a total of 10 levels. The 9-level

limit would result in a total offense level of 26 rather than 27, which would lower the

Guidelines range to 63-78 months, a range below Allery's 87-month sentence. In

these circumstances, we conclude the mistake is plain error, and we exercise our

discretionary authority to correct it. See Fed. R. App. P. 52(b); United States v.

Maynie, 257 F.3d 908, 919 (8th Cir. 2001), cert. denied, 534 U.S. 1151, and cert.

denied, 122 S. Ct. 1333 (2002); United States v. Montanye, 996 F.2d 190, 192 (8th

Cir. 1993).

Accordingly, we affirm Allery's conviction, and we reject his sentencing

arguments. Having concluded it was plain error to impose a cumulative increase of

10 levels, and on that basis only, we vacate the sentence and remand to the district

court to resentence Allery within a Guidelines range of 63-78 months.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.