UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4759

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARIN ALEXANDER BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Big Stone Gap. James P. Jones, Chief

District Judge. (2:05-cr-00027-jpj)

Submitted: July 23, 2008 Decided: September 25, 2008

Before KING, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Joel C. Hoppe, Assistant

Federal Public Defender, Abingdon, Virginia, for Appellant. John

L. Brownlee, United States Attorney, Zachary T. Lee, Assistant

United States Attorney, Abingdon, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM: 

Following a jury trial, Darin Alexander Brown was

convicted of assaulting a correctional officer and causing bodily

injury, in violation of 18 U.S.C.A. §§ 111(a)(1) (West 2000 & Supp.

2008) and 111(b) (West 2000 & Supp. 2008) (Count One) and engaging

in conduct that was more than simple assault, in violation of 18

U.S.C. § 111(a)(1) (Count Two). During Brown’s sentencing hearing,

the district court denied Brown’s Fed. R. Crim. P. 29 motion,

sustained a portion of Brown’s objections to the calculation of his

guidelines range, and sentenced Brown to two concurrent sixty-month

sentences. Brown timely noted his appeal. 

On appeal, Brown first contends that the district court

erred in denying his Rule 29 motion for judgment of acquittal

because the evidence was insufficient to support the finding that

the correctional officers sustained “bodily injury”. This court

reviews a district court’s decision to deny a Rule 29 motion de

novo. United States v. Midgett, 488 F.3d 288, 297 (4th Cir. 2007).

Where, as here, the motion was based on a claim of insufficient

evidence, “[t]he verdict of a jury must be sustained if there is

substantial evidence, taking the view most favorable to the

Government, to support it.” Glasser v. United States, 315 U.S. 60,

80 (1942); Midgett, 488 F.3d at 297. “[S]ubstantial evidence is

evidence that a reasonable fact finder could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond a
*

Although Brown challenged the accuracy of the jury

instructions in the district court, he has not raised this issue on

appeal. Rather, on appeal, we read his brief on this point as

contending only that the evidence adduced at trial was insufficient

to permit the jury to find that the definition of “bodily injury”

contained in the jury instructions had been satisfied. 

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reasonable doubt.” United States v. Delfino, 510 F.3d 468, 471

(4th Cir. 2007) (quoting United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc)). This court “can reverse a conviction

on insufficiency grounds only when the prosecution’s failure is

clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006)

(en banc). 

Prior to submitting the case to the jury, the district

court instructed the jury that the term bodily injury “means any

cut, abrasion, bruise, burn or disfigurement, physical pain,

illness, impairment of a bodily . . . member, organ, or mental

faculty, or any other injury to the body no matter how temporary.”

Assuming that the district court properly instructed the jury,*

 the

evidence, viewed in the light most favorable to the Government,

established the correctional officers suffered “bodily injury”

sufficient to sustain Brown’s conviction on Count One. At trial,

Correctional Officer Bolling testified that when Brown punched him

in the face he was dazed and stunned to the point that he did not

know what happened. Additionally, he had pain, redness, and a

headache that lasted for a few days for which he took Tylenol.

Also, Correctional Officer Meade testified that he had pain when
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hit by Brown and had noticeable redness on his jaw. In

interpreting 18 U.S.C. § 242 (2000), this court has stated that

“physical pain alone or any injury to the body, no matter how

fleeting, suffices” to establish bodily injury. United States

v. Perkins, 470 F.3d 150, 161 (4th Cir. 2006). Accordingly, the

district court did not err in denying Brown’s Rule 29 motion as the

evidence was sufficient to sustain his conviction on Count One.

Brown next argues that the district court erred in

enhancing his sentence two levels for bodily injury pursuant to

U.S.S.G. § 2A2.4. A determination by a district court concerning

whether a victim sustained bodily injury is a factual finding

reviewable under a clearly erroneous standard. United States

v. Isaacs, 947 F.2d 112, 114 (4th Cir. 1991). This deferential

standard of review requires reversal only if this court is “left

with the definite and firm conviction that a mistake has been

committed.” United States v. Stevenson, 396 F.3d 538, 542 (4th

Cir. 2005)(quoting Anderson v. Bessemer City, 470 U.S. 564, 573

(1985)). 

The U.S. Sentencing Guidelines Manual defines “bodily

injury” as “any significant injury; e.g., any injury that is

painful and obvious, or is of a type for which medical attention

ordinarily would be sought.” U.S.S.G. § 1B1.1 cmt. n.1(B). In

United States v. Lancaster, 6 F.3d 208 (4th Cir. 1993), this court

stated that: 
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whether an injury is “significant” thus should not be

determined by a precise standard meted out at the

appellate level and mechanically applied by the district

court. Rather, it should be determined by a very

factually-specific inquiry which takes into account a

multitude of factors, some articulable and some more

intangible, that are observable in hearing the evidence

presented on the injury. Because the district court

hears this evidence, it is by far best-situated to assess

these myriad factors and determine whether a “significant

injury” has occurred.

Lancaster, 6 F.3d at 210. 

After reviewing the record, we cannot conclude that the

district court committed clear error in enhancing Brown’s sentence.

According to the evidence presented at trial, Meade experienced

pain when hit by Brown and had redness where he was struck.

Similarly, Bolling was dazed when hit by Brown and experienced

pain, redness and a headache that lasted for several days. These

injuries were sufficient to meet the definition of “bodily injury”

found in U.S.S.G. § 1B1.1 cmt. n.1(B). See United States

v. Isaacs, 947 F.2d 112, 114-15 (4th Cir. 1991). Accordingly, we

affirm the judgment of the district court. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process. 

AFFIRMED