* Pursuant to 5th Cir. R. 47.5, th e court has determ ined th at this opinio n should not be published and is no t precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1 United States Court of Appeals Fifth Circuit 

## FILED November 6, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 05-30999

__________________________ UNITED STATES OF AMERICA, Pl aint iff- Appellee,
versus OTTO HENDRICK HORSTING, III, Defendant-Appellant.

___________________________________________________ Appeal from the United States District Court fo r the Western District of Louisiana (No. 1:05-CR-10006)

___________________________________________________ Before KING, BENAVIDES, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: * Otto Horsting pleaded guilt y to one count of assault wit h a deadly w eapon at the United States penit entiary in Pollack, Louisiana, in violation of 18 U.S.C. § 113(a)(3). The district court sentenced him to 100 month s imprisonment. Horsting appeals two factual findings made in connection wit h th e district court’s calculation of his sentence; he also challenges the reasonableness of th e sentence. For the reasons that follow, we affirm.2 I. FACTS AND PROCEEDINGS Horsting was charged, alo ng wit h William Schro eder and Scott Hudson, with two counts of assault with a deadly weapon in violation of 18 U.S.C. § 113(a)(3). Count one was for the assault of Ty rus Green, and count two was fo r the assault of Timo thy Hall. Horsting pleaded guilty to count two. In support of the guilty plea, FBI Agent Robert Ruby testified that white inmates Horsting, Schroeder, and Hudson were in a cell while black inmat es Green and Hall were being escorted down th e hall. The cell door had been manipulated to appear clo sed but was not. When Green and Hall passed, Horsting, Schroeder, and Hudson exited the cell, armed wit h pri son-made knives th at were crafted from hard plastic and were approximately ten to twelve inches lo ng. Horsting attacked Hall, who sustained defensive type wounds to the arms and facial area, including one of his ears and his
nose. During the assault, Schroeder yelled, “Get their eyes.” Green lost vision in one of his eyes as a result of his injuries, but Hall’s eyes were not injured. According to th e Presentence Investigation Report (“PSR”), Horsting was suspected of being invo lved with a gang known as th e Dirty Whit e Boy s, a group advancing whit e supremacist ideas. Green stated th at th e assailants generally were shouting racial slurs during the assault. The PSR also stated th at Hall, whom Horsting attacked, “received numerous puncture wounds to the head, neck, face and arms” but made a full recovery after treatment at the penitentiary medical facility. The PSR calculated th e base of fense level at fo urteen on the basis of the aggravated assault. Two levels were added because th e assau lt required more than minimal planning; four levels were added fo r use of a dangerous we apon; four levels were added for the degree of bodily injury; and th ree levels were added f

or the selection of the victims based on their race. The resulting offense3

level o f t wenty-seven was reduced by th ree fo r acceptance of responsibility. Based on the offense level of twenty -four and a criminal hist ory category of VI, the sentencing guidelines range was 100 to 125 m onths imprisonment. Horsting filed a mo tion fo r a downward departure on the basis th at he com mit ted the of

fense under coercion and duress. The district court denied the motion, sentenced Horsting to 100 months imprisonment, and concluded th at th ere was “no reason to deviate from the sentence called fo r by application of th e guidelines inasmuch as the facts as found are of a kind contemplated by the Sentencing Com

missio n, and furthe r consideration of the factors in 18 U.S.C. § 3553(a) yields no oth er com

pelling considerations not to appl y t he guidelines in this case.” Horsting timely appeals, challenging the factual findings under U.S.S.G. §§ 2A2.2 and 3A1.1 and the reasonableness of the sentence. II. STANDARD OF REVIEW Aft er Booker as before, th e district court’s application of the guidelines is reviewed de novo. United States v. Smith , 440 F.3d 704, 706 (5th Cir. 2006). Findings of fact used in the calculation of a sentence are reviewed fo r clear error. I d
. “A factual finding is not clearly erroneous as long as it is plausible in light of th e record as a whole.” United States v. Gonzales , 436 F.3d 560, 584 (5th Cir. 2006) (int ernal quotation om it ted). Additionally, we review the district court’s ultimate sentencing decision fo r reasonableness. U nited States v. Caldwell , 448 F.3d 287, 290 (5th Cir. 2006). If th e district court sentences th e defendant wit hin a properl y calculated guidelines range, that sentence is presumptively reasonable. I d
. (citing United States v. Alonzo , 435 F.3d 551, 553–54 (5th Cir. 2006)). III. DISCUSSION4

A. Bodily Injury Enhancement U.S.S.G. § 2A2.2 provides fo r a base offense level of fo urteen fo r aggravated assault. The provision further permits an increase in the of fense level based on the degree of bodily injury. Specifically, th e of

fense level is t o be increased by three levels for bodily injury and five fo r serious bodily injury. U.S.S.G. § 2A2.2(b)(3)(A),(B). Where the degree of bodily injury falls between that of bodily injury and serious bodily injury, the guidelines pr ovide for an increase of four levels. U.S.S.G. § 2A2.2(b)(3)(D). The PSR calculated Horsting’s offense level using this intermediate fourlevel increase. The guidelines define “bo dily injury” and “serious bodily injury.” S ee U.S.S.G. § 1B1.1. cmt . n.1. “Bodily injury” is defined as “any significant injury; e.g. , an injury th at is painful and obvious,
or is o f a t ype for which medical attention ordinarily would be sought.” U.S.S.G. § 1B1.1. cmt. n.1(B). “Serious bodily injury” is defined as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or ment al faculty; or requi ring medical int ervention such as surgery, hospitalization, or physical rehabilitation.” U.S.S.G. § 1B1.1. cmt. n.1(L). The district court adopted th e PSR’s of fense level calculation, finding the fo ur-level addition “certainly appropri ate in this particular case based on the facts as presented as we all understand them
on th e day of th e incident.” Horsting argues that the facts stated in the PSR do not suggest a degree of injury greater th an bodily injury. Horsting states that facts only show that the wounds were “painful and obvious,” and he point s out th at Agent Ruby testified at the guilt y plea hearing th at Hall’s wounds were defensive and not life-t hreatening. Horsting also references Hall’s Inmate Injury Assessment which described Hall ’s wounds as lacerations, not stab wounds as in the PSR. At5

sentencing, defense counsel suggested that Hall’s hospitalization for the injuries was probably only protocol and did not reflect the seriousness of the injury. If bodily injury is defined as an injury th at is “painful and ob vio us” and requi res medical attention, and if serious bodily injury is defined as an injury th at is “extremely painful” and requires surgery or hospitalization, it is plausible based on the record th at Hall’s injuries fell between these parameters. The record shows that Hall sustained numerous wounds to his face and arms. Whether th ey are described as puncture wounds in the PSR or as lacerations in the Inmate Injury Assessment, medical attention was required, and Hall was taken to the hospital. The district court’s determination th at these wounds were mo re th an merely painful and obvious is plausible since they resulted from a stabbing. Cf. United States v. Jefferson , 258 F.3d 405, 413–14 (5th Cir. 2001) (finding no clear
error when th e district court determ ined th at bruises, scrapes, and a “knot” on the head constituted “bo dily injury” under § 2A2.2); United States v. Le , 178 F. App’x 386, 388 (5th Cir. 2006) (unpublished) (finding no clear error when the district court determ ined th at a stab wound requiring two l ayers of sutures constituted “serious bodily injury” under § 2A2.2). Horsting urges that these wounds were not l

ife t hreatening, but the four-level enhancement does not address life th reatening injury; another provision does. S ee U.S.S.G. § 2A2 .2(b)(3)(C) (providing for a seven-level enhancement where th e injury is life th reatening). The di strict court’s finding was not clearly
erroneous. B. Enhancement for Racially Motivated Attack Under U.S.S.G. § 3A1.1(a), if the district court determines beyond a reasonable doubt that th e defendant int entionally selected a vict im based on the vict im’s race, then the offense level is to be increased by th

ree lev e ls. The district court applied this victim-related enhancement. Horsting6

argues that Schroeder and Hudson orchestrated the attack because of the victims’ race but that his
mo tivation was only self-preservation; he contends th at he participated in the attack due to coercion
and duress. He point s to Schroeder’s sentencing hearing, a transcript of which he attached as an exhibit to his objections to th e PSR, during which Schroeder stated th at Horsting would participate “period.” Horsting also emphasizes that nothing in the record suggests that he would have carried out the attack in t he absence of the two co-attackers. At sentencing, the government conceded that, among the three defendants, “the case o f p rovi ng intent or the racial motivation is weakest” for Horsting. The government continued, however, noting th at th e evidence was clear that the attack was racially mo tivated and th at, as the video showed, Horsting actively participated in the racially -moti vated event. The district court recognized th at th e attack was “entirely a racially mo tivated incident from it s beginning planning to it s end result.” The district court found Horst ing’s argum ent that he was coerced unpersuasive because th e video showed th at th e attack lasted a “substantial period of time” and th at at no point did Horsting wit hdraw from th e attack. The district court stated, “[Horsting] could have stopped sooner. He could have done a number of things th at would indicate he did not int end the consequences of the planning and the execution of this assault.” We conclude th at th e district court’s finding th at Horsting’s attack was racially mo tivated beyo nd a reasonable doubt was plau sible in light of the record as a whole. Horsting and the other attackers were likely invo lved wit h a gang called the Dirty White Boys, and the attackers were shouting racial slurs during th e assault. According to the PSR, Horsting was aware of the mo tivation fo r th e assault. Horsting does not dispute th at the attack was planned fo r retal iat ory reasons against black inmat es. As the parties discussed at sentencing, the prison video showed that Horsting actively7

participated in the attack. The district court emphasized th at Horsting did not retreat or put down his weapon even while th e guards called fo r additional security as reinforcement to stop the attacks. The district court’s finding th at Horsting’s attack was racially mo tivated did not amo unt to clear
error. C. Reasonableness of Sentence Horsting argues th at his sentence is unreasonable in light of the 18 U.S.C. § 3553(a) factors, particularly noting the characteristics of the defendant and circumstances of the of fense. Horsting dis c usses his hist ory of ment al health problems; he also point s out th at Schroeder, at Schroeder’s sentencing, credited Horsting and Hudson wit h preventing the attacks from becoming worse because Schroeder admit ted th at he would have killed the vict ims were he able. Horsting quotes the provision of 18 U.S.C. § 3553(a) inst ructing a court to “impo se a sentence sufficient , but not greater than necessary” to com

ply wit h th e purposes set fo rth in the statute. He argues that a sentence under 100
mo nt hs imprisonment would be sufficient to com ply wit h the purposes of the statute, suggesting th at his ment al health hist ory and his role in the of fense provide reasons fo r a belo w-guidelines sentence. As discussed under th e fir st two issues, Horsting has not demonstrated th at the sentence was improperly calculated, and, where th e district court sentences a defendant wit hin a properl y calculated guidelines range, th e sentence is presumptively reasonable. U nited States v. Candia , 454 F.3d 468, 473 (5th Cir. 2006). Where a sentence is imposed within a properly calculated range, it will be rare fo r this court to say th at a sentence is unreasonable. United States v. Johnson , 445 F.3d 793, 798 (5th Cir. 2006). Horsting’s case is not one of the rare instances where we will find the sentence, which falls wit hin a properl

y calculated guidelines range, to be unreasonable. At sentencing, the district court8

stated th at it fo und no reason to deviate from the sentence called fo r by application of the guidelines and th at consideration of th e § 3553(a) factors also of fered no reason to deviate from the guidelines. The sentence was at th e lo w end of the range at 100 months. Horsting’s argument that the district court insufficient ly considered his ment al health hist ory and role in the of fense does not overcom

e the presumption of reasonableness where the di strict explicitly stated that it considered the § 3553(a) factors and exercised reasonable discretion in the weight afforded to those factors. IV. CONCLUSION The district court’s factual findings were not clearly erroneous, and the ult imat e sentencing decision was reasonable. The judgment of the district court is AFFIRMED.