United States v. Michael Caraballo

                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
            _________________

                  No. 22-1976
               _________________

        UNITED STATES OF AMERICA

                        v.

           MICHAEL CARABALLO,
                               Appellant
             _________________

  On Appeal from the United States District Court
      for the Middle District of Pennsylvania
     (D.C. Criminal No. 3-17-cr-00277-001)
   District Judge: Honorable Robert D. Mariani
               _________________

   Submitted Under Third Circuit L.A.R. 34.1(a)
                 May 17, 2023

Before: SHWARTZ, MONTGOMERY-REEVES, and
            ROTH, Circuit Judges.

            (Filed: December 8, 2023)
Gino A. Bartolai, Jr.
238 William Street
Pittston, PA 18640
    Counsel for Appellant

Gerard M. Karam
Robert J. O’Hara
Office of the United States Attorney
235 N Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
   Counsel for Appellee
                       _____________

                OPINION OF THE COURT
                    _____________

MONTGOMERY-REEVES, Circuit Judge.

       Michael Caraballo appeals his sentence for an
aggravated assault. Caraballo challenges the District Court’s
finding that the injuries sustained by Caraballo’s victim
amounted to serious bodily injury rather than bodily injury
under the United States Sentencing Guidelines (the
“Guidelines”). This finding resulted in a higher guideline
range for Caraballo, which Caraballo contends led to the
District Court erroneously imposing a lengthier sentence for
his role in the aggravated assault. Because the phrase serious
bodily injury as used in the relevant guideline is ambiguous,
we turn to the Sentencing Commission’s interpretation of the
phrase in the commentary to the Guidelines. And we hold that
the reasonableness, character, and context of the Sentencing
Commission’s interpretation entitles it to controlling weight.




                              2
Applying the commentary definition, we hold that the District
Court did not commit clear error by concluding that the
victim’s injuries constituted serious bodily injury rather than
bodily injury. Thus, we will affirm.

I.     BACKGROUND

       On February 6, 2017, Caraballo and his co-defendant,
both inmates at the United States Penitentiary at Canaan (“USP
Canaan”), assaulted a third inmate (“P.R.”) in the prison
gymnasium. Caraballo struck and attempted to strike P.R. with
a five-inch metal shank. After the assault, medical personnel
at USP Canaan assessed P.R. and transferred him to the
emergency room of a local hospital. P.R. stayed in the
emergency room overnight and was released the next day. He
suffered “a number of puncture wounds to his chest, forearm,
[and] triceps area,” a fractured mandible, and abrasions to his
forehead, upper jaw, and left knee.1

       In connection with the attack on P.R., on September 4,
2020, Caraballo pleaded guilty to assault with a dangerous
weapon, aiding and abetting, and possessing contraband in
prison in violation of 

(a)(2)–(3) and 

(a)(2). After Caraballo entered his guilty plea, a U.S.
Probation Officer prepared a Presentence Investigation Report

1
 

. During the sentencing hearing, Caraballo’s counsel
referred to medical records in the case “disclosed during
discovery” that are not included in the record before us.
App. 56. The Government stated that P.R. also had trouble
breathing and speculated that this could be due to one of the
“three stab wounds, particularly, one to the chest, underarm
area, which probably caused the difficulty breathing.”
App. 58.




                              3
(the “Report”) for Caraballo. Using the Guidelines, the
Probation Officer calculated Caraballo’s total offense level as
20. The total offense level included a five-level sentencing
enhancement under Section 2A2.2(b)(3)(B) of the Guidelines
due to a finding that P.R. sustained serious bodily injury.
Based on a total offense level of 20 and Caraballo’s criminal
history category of V, the Probation Officer calculated a
Guidelines range of 63 to 78 months.

       Caraballo made several objections to the Report,
including to the five-level sentencing enhancement under
Section 2A2.2(b)(3)(B) for causing serious bodily injury. At
Caraballo’s May 12, 2022 sentencing hearing, the District
Court overruled the objection to the five-level enhancement:

              As [the Government] has pointed
              out, [P.R.] was stabbed three
              times, once in the anterior chest,
              which is an injury that’s difficult
              for me to characterize as just
              bodily injury rather than serious
              injury, and in addition to that, he
              had a broken jaw.

                     Now, the case law that I’ve
              looked at, for example, [United
              States v. Snider, 

 (9th Cir. 1992)], holds that a
              broken jaw is serious bodily injury
              under the applicable guideline of
              [2A2.2(b)(3)(B)], and I’m inclined
              to agree with that case and the
              others that I’ve looked at that what
              happened here is that [P.R.] had




                               4
              inflicted upon him serious bodily
              injury.

                      It’s hard for me to look past
              the fact that a shank was used, in
              connection with this injury, it’s
              hard for me to look past the fact
              one of the stab wounds was to the
              anterior chest, which, I think,
              everyone would agree, to the
              extent that there’s a penetration of
              that area of the body, you are, at
              least, exposing the victim to the
              prospect of serious bodily injury or
              death.

                     And as far as what was
              actually sustained here, there’s no
              question that, beyond the bruises
              and cuts, there were puncture
              wounds, three, and a broken jaw,
              so, again, while I respect your
              argument, I think that the facts
              support a finding that the
              Probation Office’s assessment that
              there was serious bodily injury
              here is correct. And on that basis,
              I’ll have to overrule your
              objection.

App. 59–60.

      After ruling on Caraballo’s various objections to the
Report, the District Court noted for the record that the




                               5
Guidelines range for imprisonment purposes was 63 to 78
months. The District Court then considered the various 

(a) sentencing factors and determined that
Caraballo should be sentenced on the low end of the range, or
63 months. The District Court entered the judgment on May
13, 2022. This timely appeal followed.

II.    JURISDICTION & STANDARD OF REVIEW

       The District Court had subject-matter jurisdiction over
this case pursuant to 

. This Court has
appellate jurisdiction pursuant to 

 and 

(a).

       Two different standards of review are applicable to this
appeal.2 First, we exercise plenary review over legal questions,
including the interpretation of the Guidelines. See, e.g., United
States v. Poulson, 

 (3d Cir. 2017) (collecting
cases); United States v. Nasir, 

 (3d Cir. 2021)
(en banc) (citing United States v. Wilson, 

 (3d
Cir. 2018)). Thus, we exercise plenary review over the
meaning of the phrase serious bodily injury in the relevant
guideline.

      Plenary review requires us to review the question anew
without giving deference to the District Court’s assessment or

2
 As a general matter, a third standard of review could also be
applicable, because we review a district court’s factual
findings for clear error. United States v. Kirschner, 

 (3d Cir. 2021) (citing United States v. Grier, 

 (3d Cir. 2007)). But here neither party
challenges the District Court’s factual findings; thus, this
standard of review is not implicated.




                               6
interpretation. See, e.g., Kengerski v. Harper, 

(3d Cir. 2021) (“Our review on appeal is plenary, which means
we review each element anew.”); Metromedia Energy, Inc. v.
Enserch Energy Servs., Inc., 

, 579 (3d Cir. 2005)
(“Thus, we owe no deference to the District Court’s analysis,
and instead we exercise plenary review over the District
Court’s decision . . ..”).

        Second, the standard of review for the District Court’s
application of the Guidelines to the facts “depends on the
nature of the question presented.” Buford v. United States, 

 (2001) (quoting Koon v. United States, 

 (1996)). “[A] more deferential standard of review is
appropriate where, as here, we consider a district court’s
application of the Guidelines to a specific set of facts, that is,
where the district court determined whether the facts ‘fit’
within what the Guidelines prescribe.” United States v.
Richards, 

 (3d Cir. 2012). “[W]hen the legal
issue involves ‘a “strictly factual test,” such that once the test
is stated no legal reasoning is necessary to the resolution of the
issue,’” the determination should be reviewed for clear error.

 at 221 (quoting United States v. Brown, 

(3d Cir. 2011)); see also, e.g., United States v. Perez-Colon, 

 (3d Cir. 2023) (“Finally, like in Richards ‘our
role is more appropriately described as determining whether
the District Court clearly erred in its determination that the
facts fit within the meaning of [the relevant Guideline], rather
than whether it abused its discretion by adopting one set of
factual findings instead of another.’” (quoting Richards, 

)). The question presented here is whether the
victim suffered bodily injury or serious bodily injury based on
how P.R.’s injuries fit within the meaning of those terms in the




                                7
Guidelines. Therefore, the standard of review for the District
Court’s application of the Guidelines to the facts is clear error.

        “We find clear error if, when reviewing the entire
record, we are ‘left with the definite and firm conviction that a
mistake has been committed.’” United States v. Napolitan, 

 (3d Cir. 2014) (quoting United States v. Kulick,

 (3d Cir. 2010)). “If the district court’s
account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse it
even though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently. Where
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”
Anderson v. Bessemer City, 

, 573–74 (1985).

III.   DISCUSSION

       Appellate review of a criminal sentence is, at the
broadest level, a two-step process. First, the appellate court
must ensure that the district court made no significant
procedural errors, and second, assuming no significant
procedural errors occurred, the appellate court must consider
the sentence’s substantive reasonableness. Gall v. United
States, 

, 49–51 (2007). Failure to properly
calculate the Guidelines range constitutes a significant
procedural error. Rosales-Mireles v. United States, 

 (2018) (quoting Peugh v. United States, 

 (2013)); Gall, 

.

      Caraballo challenges his sentence on a single ground:
the District Court failed to properly calculate his Guidelines
range by applying a serious bodily injury sentencing
enhancement rather than a bodily injury enhancement. To




                                8
determine whether the District Court erred, we consider the
District Court’s finding that P.R.’s injuries constituted serious
bodily injury rather than bodily injury under the Guidelines.
Both Caraballo and the Government recite the definitions of
bodily injury and serious bodily injury found in the
commentary of the Guidelines, but Caraballo argues that
instead of relying on the definitions in the commentary, we
should give “bodily injury” and “serious bodily injury” their
“ordinary and contemporary common meaning.” Appellant
Br. 10. And based on the ordinary and contemporary common
meaning, Caraballo argues that the District Court erred by
concluding that the injuries suffered by P.R. constitute serious
bodily injury rather than bodily injury.

       Prior to 2019, “[c]ommentary interpreting or explaining
a specific guideline ‘[was] authoritative unless it violate[d] the
Constitution or a federal statute, or [was] inconsistent with, or
a plainly erroneous reading of, that guideline.’” United States
v. Metro, 

 (3d Cir. 2018) (quoting Stinson v.
United States, 

 (1993)). This authority
stemmed from the interaction between the Stinson rule,
whereby the Sentencing Commission’s commentary
interpreting the Guidelines (the “Commentary”) is treated as
the equivalent of an agency’s interpretive rules, and Auer
deference, whereby “controlling weight [was given] to an
agency’s interpretation of its own regulation unless the
interpretation was ‘plainly erroneous or inconsistent with the
regulation.’” United States v. Adair, 

 (3d Cir.
2022) (quoting Stinson, 

).

      In Kisor v. Wilkie, 

 (2019), however, the
Supreme Court “reprised Auer deference.” Adair, 

. This Court addressed the effect of this reprisal on the




                                9
deference due to the Commentary in United States v. Nasir, 

 (3d Cir. 2021) (en banc), and expanded this
discussion in Adair. In Nasir, this Court explained that “[i]n
short, the degree of deference to be given an agency’s
interpretation of its own regulations[, including the
Commentary,] is now context dependent.” 

.
Thus, courts must apply “the Kisor process” to determine
whether they can defer to definitions in the Commentary. 

at 460–72; Adair, 

. In Nasir and Adair, this
Court explained the Kisor process as: (1) exhaust all the
traditional tools of construction to conclude whether a
guideline is genuinely ambiguous by examining the text,
structure, purpose, and history of the guideline in question;
then, if the guideline is genuinely ambiguous, (2) determine
whether the Sentencing Commission’s interpretation is
reasonable, meaning that based on the text, structure, purpose,
and history of the Guideline the Sentencing Commission’s
interpretation falls within the outer bounds of permissible
interpretation; and finally, if the interpretation is reasonable,
(3) make an independent inquiry into whether the character and
context of the Sentencing Commission’s interpretation entitles
it to controlling weight by considering whether the
interpretation (a) is the Sentencing Commission’s official
position, (b) in some way implicates the Sentencing
Commission’s substantive expertise, and (c) reflects the
Sentencing Commission’s fair and considered judgment and is
not simply a convenient litigating position. Nasir, 

; Adair, 38 F.4th at 348–49; see also Kisor, 139 S. Ct. at
2415–17.

       There is only one guideline at issue in this case: Section
2A2.2, the guideline for aggravated assault, which lists a base
offense level of fourteen and then seven enhancement




                               10
categories, only one of which is relevant here. Section
2A2.2(b)(3) requires an increase in the offense level “[i]f the
victim sustained bodily injury . . . according to the seriousness
of the injury[.]” U.S. Sent’g Guidelines Manual § 2A2.2(b)(3)
(U.S. Sent’g Comm’n 2021). Section 2A2.2(b)(3) has a chart
listing five degrees of bodily injury and the commensurate
sentencing enhancement for each. There are three main
degrees of injury (“bodily injury,” “serious bodily injury,” and
“permanent or life-threatening bodily injury”) and two
categories giving instructions for increases if the bodily injury
falls between the main degrees. Id. For example, “If the
degree of injury is between . . . [bodily injury] and [serious
bodily injury], add 4 levels[.]” Id.

       Under Kisor, we first conduct a “genuine-ambiguity
analysis using the traditional tools of construction to examine
the text, structure, purpose and history” of Section
2A2.2(b)(3). Adair, 

. A sentencing guideline
is genuinely ambiguous if it is “susceptible to more than one
reasonable reading.” See Kisor, 

. The text,
structure, history, and purpose of Section 2A2.2(b)(3) show
that serious bodily injury is susceptible to more than one
reasonable reading and therefore is genuinely ambiguous.

        We start with the plain text and presume that words
carry their ordinary meaning. See United States v. Banks, 

, 256–57 (3d Cir. 2022); United States v. Lewis, 

 (3d Cir. 2023) (“The phrase ‘controlled
substance’ is undefined by the Guidelines, so we begin with its
ordinary meaning.”). “To ascertain the ordinary meaning of
words, ‘[w]e refer to standard reference works such as legal
and general dictionaries.’” Da Silva v. Att’y Gen. United
States, 

 (3d Cir. 2020) (alteration in original)




                               11
(quoting United States v. Geiser, 

 (3d Cir.
2008)). This Court routinely relies on Black’s Law Dictionary,
Oxford English Dictionary, and Webster’s Dictionary when
interpreting the Guidelines. E.g., United States v. Simmons, 

 (3d Cir. 2023); United States v. Dawson, 

 (3d Cir. 2022); United States v. Stinson, 

 (3d Cir. 2013). Black’s Law Dictionary is the only
contemporary dictionary that defines serious bodily injury as a
complete phrase, so we start with Black’s. See Dawson, 

 (“Black’s Law Dictionary [is] persuasive here, as
it provides definitions of the salient terms in the precise,
relevant context[.]”).

        At the time Section 2A2.2(b)(3)(B) was drafted, Black’s
Law Dictionary defined the phrase serious bodily injury as a
“bodily injury which creates a substantial risk of death or
which causes serious, permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or
organ.” Injury, Black’s Law Dictionary (5th ed. 1979). This
definition captures three distinct descriptions of injury, two of
which are expressly encompassed in the seven-point
enhancement for “[p]ermanent or [l]ife-[t]hreatening [b]odily
[i]njury.” U.S. Sent’g Guidelines Manual § 2A2.2(b)(3)(C)
(U.S. Sent’g Comm’n 2021). If we adopted Black’s definition,
bodily injury that involves a “substantial risk of death” or
results in “permanent disfigurement” would fall into both the
five- and seven-point enhancements, rendering the seven-point
enhancements meaningless in violation of the anti-surplusage
cannon. See United States v. Jackson, 

 (3d
Cir. 2020) (stating that the anti-surplusage canon counsels us
to “give effect, if possible, to every clause and word” of a
statute or regulation (quoting Duncan v. Walker, 

 (2001))). As a result, Black’s definition of the phrase does




                               12
not resolve the question of what Section 2A2.2(b)(3) means by
serious bodily injury.

       We must therefore look at the definitions of the phrase’s
constituent parts. See, e.g., Sandifer v. U.S. Steel Corp., 

, 227–32 (2014) (analyzing each part of the term
“changing clothes”). The meanings of “bodily” and “injury”
are not in dispute, but contemporary dictionaries define
“serious” in many ways. One dictionary defines it as “causing
anxiety,” Serious, American Heritage Dictionary (2d ed.
1985), another as “caus[ing] considerable distress, anxiety, or
inconvenience,” Serious, Webster’s Third New International
Dictionary (1986), while yet another defines it as “having . . .
dangerous possible consequences,” Serious, Webster’s Ninth
New Collegiate Dictionary (1985).3 A fourth dictionary
defines serious in medical terms as “having unstable or
otherwise abnormal vital signs and other unfavorable
indicators.” Serious, Random House Dictionary of the English
Language (2d ed. 1987). These varying definitions of serious
show that the phrase serious bodily injury could mean a bodily
injury causing considerable distress, anxiety, or inconvenience
or a bodily injury causing unstable or otherwise abnormal vital
signs or other unfavorable indicators. As both of these
readings are reasonable, but not necessarily mutually



3
  Other dictionary definitions use some combination of these
definitions. See Serious, Oxford English Dictionary (2d ed.
1989) (“Attended with danger; giving cause for anxiety.”);
Serious, Webster’s New Universal Unabridged Dictionary (2d
ed. 1983) (“[G]iving cause for anxiety; critical; dangerous;
alarming.”).




                              13
inclusive,4 the text supports the conclusion that serious bodily
injury is subject to more than one reasonable reading.

        Section 2A2.2(b)(3)’s structure and history do not
narrow the reasonable readings to one. Section 2A2.2(b)(3)
sets forth a sliding scale of enhancements “according to the
seriousness of the [victim’s] injury”: three levels for “Bodily
Injury,” four levels if the “degree of injury is between” “Bodily
Injury” and “Serious Bodily Injury,” five levels for “Serious
Bodily Injury,” six levels if the “degree of injury is between”
“Serious Bodily Injury” and “Permanent or Life-Threatening
Bodily Injury,” and seven levels for “Permanent or Life-
Threatening Bodily Injury.” U.S. Sent’g Guidelines Manual
§ 2A2.2(b)(3) (U.S. Sent’g Comm’n 2021). Section 2A2.2
lacks definitions of these terms, so the various gradients along
the sliding scale lack clear boundaries. The only difference,
for example, between bodily injury and serious bodily injury is
the word serious, which, as discussed above, has many
different meanings. Indeed, in 1989, the drafters recognized
the ambiguity in the sliding scale by amending Section
2A2.2(b)(3) to add undefined intermediary enhancements to
fill the gaps between the three defined categories of injuries.
See U.S. Sent’g Guidelines Manual § 2A2.2(b)(3)(D), (E)
(U.S. Sent’g Comm’n 1989). The structure and history of
Section 2A2.2(b)(3) thus support a determination that the
phrase serious bodily injury is genuinely ambiguous.




4
  For example, a bodily injury causing abnormal vital signs
will not necessarily cause considerable distress, anxiety, or
inconvenience.




                               14
       According to the background commentary,5 the purpose
of Section 2A2.2 is to recognize that some felonious assaults
“are more serious than other assaults because of the presence
of an aggravating factor,” like causing a victim to suffer serious
bodily injury, and that commensurate punishment is warranted.
U.S. Sent’g Guidelines Manual § 2A2.2 cmt. background (U.S.
Sent’g Comm’n 2021). To effectuate that purpose, the
Sentencing Commission set forth the sliding scale under which
defendants whose victims sustain more severe injuries face
greater punishment. While the purpose of Section 2A2.2 does
not resolve the plain meaning of serious bodily injury, it shows
that the phrase is meant to capture the results of conduct that
caused more than bodily injury and less than permanent or life-
threatening injury. Thus, like the text, structure, and history,
Section 2A2.2’s purpose does not enable us to identify just one
reasonable interpretation of the phrase serious bodily injury.

       Because the traditional tools of statutory interpretation
do not reveal a single reasonable definition of the phrase
serious bodily injury, we hold that the phrase is genuinely
ambiguous. We therefore proceed to step two of the Kisor
analysis and consider whether the Commentary’s definition of
the phrase is “reasonable.” Kisor, 

 (quoting
Thomas Jefferson Univ. v. Shalala, 

 (1994)).
On this question, Kisor instructs us to return to the guideline’s
“text, structure, history, and so forth” to determine if the

5
  We can consider the background commentary from the
Guidelines without going through the Kisor process. See
Adair, 38 F.4th at 347–48 (“The paradigm applies only to the
Commission’s interpretive commentary, not its commentary
related to either background information or circumstances that
may warrant a departure from a guideline.”).




                               15
Commentary’s definition of serious bodily injury falls within
the “outer bounds of permissible interpretation.” Id. at 2416.

        With this in mind, we must identify the outer limits of
reasonable interpretation of the phrase serious bodily injury.
On one end of the range, the phrase means a bodily injury
resulting in “anxiety.” Serious, American Heritage Dictionary
(2d ed. 1982). On the other end of the range, the phrase means
a bodily injury with “dangerous possible consequences,”
Serious, Webster’s Ninth New Collegiate Dictionary (1985),
but that is not quite “permanent or life-threatening” because
such bodily injury is covered by the separate, seven-level
enhancement, U.S. Sent’g Guidelines Manual §
2A2.2(b)(3)(C) (U.S. Sent’g Comm’n 2021).

       The Commentary’s definition falls squarely within this
range. The Commentary defines “[s]erious bodily injury,” in
relevant part, as:

              [An] injury involving extreme
              physical pain or the protracted
              impairment of a function of a
              bodily member, organ, or mental
              faculty; or requiring medical
              intervention such as surgery,
              hospitalization, or    physical
              rehabilitation.

U.S. Sent’g Guidelines Manual § 1B1.1 cmt. n.1(M) (U.S.
Sent’g Comm’n 2021). Each part of this definition reasonably
falls within the outer bounds described above. As to the first
clause, bodily injury involving extreme physical pain or
protracted impairment can provoke anxiety but also has
dangerous possible consequences that are not permanent or




                              16
life-threatening. The second clause in the Commentary’s
definition regarding medical intervention is also consistent
with the range of reasonable interpretations. Bodily injury
requiring surgery, hospitalization, or physical rehabilitation
can cause anxiety but also has dangerous possible
consequences because surgery and hospitalization are
themselves such consequences. Therefore, the Commentary’s
definition is reasonable.

        Not only is the interpretation reasonable but the
“character and context” of the Commentary support giving the
Commentary’s definition “controlling weight.” Kisor, 

 (citing Christopher v. SmithKline Beecham Corp.,

 (2012)); see also United States v. Perez, 

 (3d Cir. 2021). First, the Commentary’s
definition is the Sentencing Commission’s official position and
not merely an ad hoc pronouncement. Kisor, 

. Second, it implicates the Sentencing Commission’s
substantive expertise. See 

; United States v.
Mercado, 

, 359–60 (3d Cir. 2023). As discussed
above, Section 2A2.2(b)(3) sets forth a sliding scale of
sentencing enhancements that account for the seriousness of
the victim’s injury. One of the three principal purposes of the
Sentencing Commission is to “establish sentencing policies
and practices for the federal courts, including guidelines to be
consulted regarding the appropriate form and severity of
punishment for offenders convicted of federal crimes[.]”
About,      United      States    Sentencing      Commission,
https://www.ussc.gov/about-page (last visited Dec. 5, 2023).
The Guidelines “are core to [the Sentencing Commission’s]
mission” and




                              17
              provide federal judges with fair
              and consistent sentencing ranges
              to consult at sentencing by:

          •   incorporating the purposes of
              sentencing (i.e., just punishment,
              deterrence, incapacitation, and
              rehabilitation);

          •   providing certainty and fairness in
              meeting      the    purposes      of
              sentencing        by       avoiding
              unwarranted disparity among
              offenders        with        similar
              characteristics convicted of similar
              criminal conduct, while permitting
              sufficient judicial flexibility to
              take into account relevant
              aggravating and mitigating factors;
              and

          •   reflecting,   to    the   extent
              practicable, advancement in the
              knowledge of human behavior as it
              relates to the criminal justice
              process.

U.S. Sentencing Commission’s 2022 Annual Report, United
States               Sentencing               Commission,
https://www.ussc.gov/about/annual-report-2022 (last visited
Dec. 5, 2023). What impact the type and severity of injuries
sustained by victims should have on a sentence is thus
“squarely within the Sentencing Commission’s ‘bailiwick.’”
Mercado, 

 (quoting Nasir, 

).




                              18
Third and finally, the definition was not instituted for any post
hoc purpose but has been included in the Commentary since
1987, and therefore reflects the Sentencing Commission’s “fair
and considered judgment.” Kisor, 

 (quoting
Christopher, 

). As the Commentary’s
definition of serious bodily injury satisfies Kisor, it is entitled
to deference.

       The District Court concluded that the serious bodily
injury enhancement under Section 2A2.2(b)(3)(B) applied.
The District Court found that P.R. “was stabbed three times,
once in the anterior chest” and “had a broken jaw.” App. 59.
The District Court based its finding that these injuries
constituted serious bodily injury on (1) the fact that P.R.
suffered a stab wound to the chest caused by a five-inch metal
shank and (2) caselaw that found that a broken jaw constituted
serious bodily injury. The District Court considered all the
injuries together and found that collectively they constituted
serious bodily injury.

       The District Court’s conclusion was not clearly
erroneous. The record shows that P.R.’s injuries consisted of
puncture wounds to three areas of his body from the shank,
including a puncture wound to the anterior chest, and a
fractured jaw. The record does not specify what type of
treatment P.R. required or how severe the documented injuries
were, which does leave room for speculation, but the finding
that P.R.’s injuries when taken together amount to serious
bodily injury is plausible based on the entire record. When
reviewing the entire record, we are not left with the definite
and firm conviction that a mistake has been committed by
applying the serious bodily injury enhancement rather than one
of the lower bodily injury enhancements considering the




                                19
totality of P.R.’s injuries. Therefore, the District Court’s
finding that P.R. suffered serious bodily injury does not
constitute clear error.

IV.   CONCLUSION

       For the reasons discussed above, we will affirm the
District Court’s judgment.




                            20