United States v. Reyes, No. 06-3699-cr (2d Cir. February 19, 2009)(Leval, Cabranes, Livingston, CJJ) (per curiam)
Defendant Reyes participated in the beating of a victim with, amongst other things, a baseball bat. The victim was left with severe brain damage – his wife told the court that he would “never wake up again.”
Reyes pled guilty to assault in aid of racketeering. He faced a sentencing range of ninety-two to 115 months’ imprisonment, which included an enhancement for “permanent or life threatening bodily injury” under U.S.S.G. § 2A2.2(b)(3)(C). At sentencing, however, the district court invoked U.S.S.G. § 5K2.2, which authorizes an upward departure for “physical injury,” and sentenced him to 180 months’ imprisonment.
On appeal, Reyes claimed that the sentence was the result of impermissible “double counting.” The circuit affirmed, reminding that impermissible double counting only occurs when a court acts “in contravention of the applicable statute or Sentencing Guideline.” Here, the defendant could not point to any statutory or guideline language that would preclude the application of both § 2A2.2(b)(3)(C) and § 5K2.2.
Moreover, the two sections, while similar, are “not identical.” The Chapter 2 section covers either permanent or life threatening injuries. An “injury can be permanent, and thus qualify for the increase, even if it is less severe than the injury suffered by the victim in this case.” Alternatively, an injury can be “life-threatening temporarily and yet have no long term effects” after the victim recovers. Here, by contrast, the injury was both permanent and “exceptionally serious” – thus it was “considerably graver than what is necessary to qualify for an increase under U.S.S.G. § 2A2.2(b)(3), making a departure based on § 5K2.2 appropriate.