09-3260 U.S. v. Dortch

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Sentencing
Multiple enhancements; ‘serious bodily injury’; harmless error

Where defendant robbed a bank and then led police on a high-speed chase that included carjacking a vehicle and ended only after three officers were injured in pursuit, a 240-month sentence based on his criminal history and enhancements for his conduct during the robbery and flight is reasonable.

“Dortch’s first two arguments merit little discussion. We have held that the mere statement that a bank robber has a gun can, in context, constitute a threat of death, and here there was considerably more. United States v. Carbaugh, 141 F.3d 791, 794 (7th Cir. 1998). And applying multiple enhancements based on the same flight from police is perfectly permissible so long as the enhancements relate to different aspects of the defendant’s conduct. United States v. White, 222 F.3d 363, 376 (7th Cir. 2000). Here, Dortch received one enhancement for his initial high-speed chase, another for carjacking the second car, and a third for assaulting the police officer blocking his second escape attempt.

“The final issue does raise some questions. Application note 1 in the commentary to Sentencing Guidelines § 1B1.1 defines ‘serious bodily injury’ in part as ‘injury . . . requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.’ The government argues that under this text it only needs to show that someone was ‘hospitalized’ in order to establish a ‘serious bodily injury,’ and that Officer Fichter’s testimony establishes this. Dortch contends that Officer Fichter’s testimony is ‘unreliable hearsay’ and that even if believed it is insufficient to establish serious bodily injury. …

“No one seriously disputes that there was at least one ‘bodily injury’ in this case-the uncontested evidence that Sergeant Kovacik had lacerations on his hand requiring 16 stitches establishes as much. Even if the government could not, in the end, establish Officer Huckaby’s serious bodily injury, Dortch’s offense level under the guidelines would only drop by two (the difference between the bodily injury and serious bodily injury enhancements). This would result in a guidelines range of 235 to 293 months. As even Dortch’s counsel acknowledged at oral argument, this reduction would not have affected the district court’s sentence in any way: the success of the appeal depended on the cumulative effect of his other, unsuccessful, arguments. The district court noted that it felt that the 240-month statutory maximum sentence was a fair sentence in this case, and there is no indication that the fact that this may have been toward the low end of, rather than below, the proper guidelines range would have made any difference.”

Affirmed.

09-3260 U.S. v. Dortch

Northern District of Indiana, Hammond Division, Lozano, J., Manion, J.

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