NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 16

- 3068

___________ UNITED STATES OF AMERICA

v. DARIAN TENSLEY,

Ap pellant

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Crim. No. 3:15

- cr - 00108

- 001 ) District Judge: Honorable James M. Munley

____________________________________ S ubmitted Pursuant to Third Circuit LAR 34.1(a)

February 10, 2017
Before: M C KEE , RENDELL, and FUENTES, Circuit Judges

(Opinion filed : February 13 , 2017 )

_________ OPINION *

_________ FUENTES, Circuit Judge In August 2013, w hile serving a lengthy f ederal drug sentence at Schuylkill FCI , 1

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Darian Tensley became agitated during a routine pat

- down conducted by Officer Jim
Siedel. During a brief scuffle, Tensley spun around and punched Siedel in the face. 2
A lmost two years later , Tensley was indicted u nder 18 U.S.C. § 111 (“ Assaulting, resisting, or impeding certain officers or employees ”), entered an open plea of guilty , and
was sentenced to 33 additional months in prison . The only issue now on appeal is
whether the District Court correctly overruled Tensley’s objection to a two

- level sentencing enhancement for causing Siedel “bodily injury , ” a decision we review for
clear error. 3
The relevant definition of “bodily injury” is found in the Application Notes to
U.S.S.G. § 1B1.1 : “ any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought. ” Whether an injury is “significant” is a fact

- and record

- dependent inquiry that looks to whether the injury was
more than trivial or mino r
. R elevant factors include the degree and duration of the pain and discomfort experienced by the victim, as well as the character of any medical

1 See M.D. Fl. Crim. No. 8:03

- CR
- 00227 ; see also Pre

- Sentenc e Report (“PSR”) ¶ 60 (reflecting a 327

- month sentence for selling 53.8 grams of crack cocaine).

2 The PSR says that Tensley threw and landed two punches, see PSR ¶ 5, but the sentencing transcript reflects only a single punch, see App’x 29

. 3 See United States v. Harris , 44 F.3d 1206, 1217 (3d Cir. 1995) ; see also United States v. Richards , 674 F.3d 215, 220

– 22 (3d Cir. 2012) (discussing clear error review in the context of Guidelines determinations). We have jurisdiction to answer this question under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.3

intervention

. 4
T he government submitted two exhibits to the District Court in support of the proposed enhance ment. The first was a contemporaneous incident report that briefly described Officer Siedel’s injuries: “ Suffered contusion to [his] upper and lower lips / swelling, small laceration, interior lower lip

. . . . ” 5 Siedel was “instructed” to “follow

- up with the local hospital. ” 6 The second exhibit was a set of full

- color photos of Siedel’s face, time

- stamp ed within five minutes of the attack

. They show Siedel with a bloody nose and a cut inside lower lip. 7 No formal medical report was introduced into
the r ecord.
T he government then called Officer Siedel to the stand during Tensley’s sentencing hearing, which was held almost three years after the incident. At the hearing,
Siedel discussed his injuries, which he described as “very” painful. 8 With regard to medical intervention, he testified that the emergency - room doctors had examined his
mouth ( to ensure his teeth were not loose ) a nd X

- rayed his arm. H e was told that he would probably have headaches for a few days (he did) and to treat them with over

- the

-

4 See Harris , 44 F.3d at 1217

– 19.

5 App’x 57. Siedel also sustained an injury to his elbow and left hand while restraining Tensley after the attack. See App’x 38.

6 App’x 57.

7 See App’x 56. The copy in the appendi x is in black and white; the color photographs are available on the District Court’s docket at ECF No. 46.

8 App’x 38

– 39.4

counter pain medications . Siedel returned to work the next day

— “psychologically, it was a little tough”

— and experienced some swelling that affected his ability to smile. 9 He later clarified that he required no follow

- up medical attention and that his tee th were fine. Moreover, o n cross, he candidly conceded that he received no treatment for his lip injuries and that th e X

- rays revealed nothing amiss. And h e agreed with defense counsel that it was “fair” to say “there was no treatment at the hospital, ot her than X

- rays and an
evaluation that there was no damage done.” 10 Relying on two out

- of

- Circuit cases, Tensley argues on appeal that the injuries Siedel sustained were not “significant” and thus could not support the “bodily injury” sentencing enhanceme nt

. T he first case, the Tenth Circuit’s 2006 decision in United States v. Mejia

- Canales , 11 has similar facts: a federal inmate struck a guard in the face and head, was indicted under 18 U.S.C. § 111, and received the bodily

- injury
enhancement in District C ourt

. The successful appellate challenge to the enhancement in Mejia

- Canales , however, grew out of the government’ s failure to provide a n adequate
factual basis for applying it . The guard’s injuries were minor , consisting of a head
wound and a small oral cut ; the record contained only thre e poor - quality photographs and the PSR’s brief description of the wounds. Moreover, t he guard did not testify. 12 The

9 App’x 40

. 10 App’x 43.

11 467 F.3d 1280 (10th Cir. 2006)

. 12 Id. at 1281, 1283

– 84.5

Fifth Circuit reached much the same conclusion , for much the same reason, in United States v. Zuniga , 13 the other decision Tensley relies on . There, the Fifth Circuit described evidence of the injury

— a single eyewitness statement about the victim being “trampled” and experiencing pain in her arm

— as “sparse.” 14
We believe the record here is sufficient to s upport the application of the
enhancement under our deferential review for clear error. U nlike in Mejia

- Canales and Zuniga , the victim here testified about his injuries , saying that they were painful and had aftereffects that lasted for days

— both factors that can support a finding of bodily injury. 15
The full

- color photographs, meanwhile, show Siedel bleeding from his mouth and nose.
While the medical attention revealed nothing serious and the testimony about psychological trauma might not bear on the enh ancement , 16 the record was such that the

13 720 F.3d 587 (5th Cir. 2013) (per curiam).

14 Id. at 593.
15 See, e.g. , United States v. Maiden , 606 F.3d 337, 338, 340 (7th Cir. 2010) (affirming enhancement when PSR contained victim’s statement that, after being sprayed in the eyes with pepper spray, she felt a burning sensation that pre vented her from wearing contact lenses ).

16 I t is unclear whether the District Court took this part of Siedel’s testimony into account

. W e do not appear to have decided whether mental anguish alone , such as trauma arising from the fact of the attack itself

— as distin guished from mental distress that illuminates or arises from a n injury and bears upon its significance

— can be a component of a “bodily injury” determination. See, e.g. , United States v. Lanzi , 933 F.2d 824, 827 (10th Cir. 1991) (finding no clear error whe n “psychological injury” was deemed not to amount to “bodily injury”); cf. United States v. Spinelli , 352 F.3d 48, 58 (2d Cir. 2003) ( finding psychological injury could constitute “serious” and “permanent or life

- threatening” bodily injuries, whose definit ions in the Application Notes to § 1B1.16

District Court could reasonably find that Siedel suffered a “ significant ” injury. And

w hen there are two reasonable views of the evidence, a choice between them cannot be clearly erroneous

. 17 In sum, we find no clear error in the District Court’s judgment of sentence. It will
be affirmed.

include damage to “mental faculty”). The record here was sufficient to apply the enhancement without that testimony, so w e leave the question for another day.

17 United States v. Waterman , 755 F.3d 171, 174 (3d Cir . 2014)

.