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Ninth Circuit Judges Differ Over What Is Life-Periling Injury
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday held, in a 2-1 decision, that a hitman, who was strangled and thrown off a cliff in Mexico by other members of his gang over a botched MacArthur Park-area shooting, and survived, suffered “life-threatening injuries” for purposes of an enhancement applied to his attacker’s sentence even though there was no evidence that he faced mortal danger from the attack.
In a memorandum opinion, signed by Circuit Judge Ryan D. Nelson and Senior Circuit Judge Richard C. Tallman, the court said that a judge is entitled to consider not just the actual injuries—which in this case were asphyxiation to the point of unconsciousness as well as a bloodied, scarred neck—but also any actions taken by the defendant which could have killed him, such as throwing the victim off a cliff.
Senior Circuit Judge Marsha S. Berzon dissented, arguing that, “[a]t base, there must be some evidence that the victim’s injuries were so severe that they placed him in mortal peril.”
Order to Kill
Appealing his life sentence for conspiracy to commit murder, conspiracy to kidnap, and other federal charges, was Javier Perez, a member of the Columbia Lil’ Cycos (“CLCS”) clique of the 18th Street gang who was ordered to kill fellow gang member Giovanni Macedo. The demand came after Macedo opened fire on a crowded street on Sept. 15, 2017, aiming at a street vendor who refused to pay CLCS “taxes” but hitting and killing a 23-day-old baby.
Apparently to make things right with the Mexican Mafia, which was upset over the botched shooting, Perez was told by CLCS higher-ups to take Macedo to Mexico and do away with him. Macedo was told he was being taken across the border so that he could “hide out” and Perez and others drove him to a remote area.
Once there, Perez put a rope around Macedo’s neck and yelled “die!” as he pulled hard on the other end. After Macedo passed out, Perez and the others threw him off a cliff.
Macedo regained consciousness on his way down, grabbed some roots, and pulled himself up to safety. He testified at Perez’s trial for the prosecution, after striking a plea deal under which he agreed to cooperate with federal authorities and serve 51 years and four months in prison for his role in the infant’s death.
After the jury found Perez guilty, Senior District Court Judge Dean D. Pregerson of the Central District of California sentenced him to life imprisonment based, in part, on the “life-threatening injury” enhancement found at U.S. Sentencing Guidelines Manual §2A2.1(b)(1)(A).
On appeal, Perez challenged the application of the enhancement, arguing that there was no evidence to support it.
Majority’s View
Tallman and Nelson noted that an application note to the sentencing guidelines defines “life-threatening” as “involving a substantial risk of death” without reference to a “need for a threshold medical diagnosis or intervention to support that conclusion.”
They noted that Pregerson made several factual findings in support of the application of the enhancement, including that “Perez, who was hired to kill Macedo, strangled him with a rope to the point of a bloodied and scarred neck, causing Macedo to lose consciousness” and that “once Perez and his co-conspirators believed Macedo dead, they threw his body off of a cliff in remote Mexico and fled the scene.”
Perez does not dispute the findings but argues that “it is not the actions of the defendants that can be life-threatening in order for the enhancement to apply; it is the injury.”
Rejecting the argument, the judges pointed to case law finding that courts may consider not just any wounds but also dangerous “deprivations,” such as being held without food or water, to decide whether they constituted “maltreatment to a life-threatening degree.”
Applying the standard, Tallman and Nelson wrote:
“[T]he district court did not abuse its discretion in concluding that Macedo’s injuries (asphyxiation to the point of unconsciousness, evidenced by a bloodied, scarred neck), alongside Perez’s maltreatment of the victim (throwing an unconscious Macedo off of a cliff in remote Mexico and leaving him for dead) had a ‘substantial risk of death’ and amounted to ‘life-threatening bodily injury.’ ”
Characterizing their analysis as “common sense,” they said, in a footnote:
“This is a straightforward conclusion supported by the language of the guidelines and our case law. The dissent goes to great lengths to complicate it….[Macedo] was strangled to the point of near death. Then, the assassins threw Macedo’s unconscious body off of a cliff in remote Mexico, all but guaranteeing he had no access to any lifesaving measures….[T]he fact that he survived does not mean that his injury and maltreatment presented anything less than a ‘substantial risk of death.’ ”
In another footnote, they commented that they found “perplexing” Berzon’s conclusion that “it is not self-evident that Macedo faced a ‘substantial risk of death’ from, or evidenced by, his unconsciousness.”
Berzon’s View
Berzon wrote that “the Guideline makes clear, the enhancement applies only if the victim actually sustained an injury that was life threatening” and remarked that “there is no serious argument that Macedo faced a substantial risk of death from his neck abrasions” or “his unconsciousness.”
She continued:
“Although there is testimony indicating that Macedo was unconscious, there is no evidence of the period of time he was out, and there is none that speaks to his need for immediate treatment…. Although pursuing medical care is not an explicit requirement imposed by the Guideline, the fact that Macedo ultimately deemed no medical care necessary is probative of the dangerousness, or lack thereof, of his injury.”
Uninjured From Fall
Turning to the majority’s assertion that the act of throwing Macedo over an embankment merits the enhancement, she argued:
“It is uncontroverted that Macedo was entirely uninjured from his fall. Yet the majority would apply the life-threatening bodily injury enhancement because throwing him off the cliff was maltreatment and could have caused him to sustain a life-threatening injury. But the Guideline focuses on whether there was a life-threatening injury, not whether there could have been or whether the defendant believed there was one. Shooting at someone is surely maltreatment. If the victim is not hurt because the shooter misses him, he has not sustained a life-threatening injury, any more than a shooter who misses an intended victim is guilty of murder rather than attempted murder.”
The jurist added, in a footnote:
“The majority’s application of the enhancement based on indications that Perez intended Macedo’s death and erroneously believed that he had fatally injured him is inconsistent with the structure of the Guideline, which indicates that the enhancement should not apply in every instance of attempted murder, and the text of the enhancement. The text, once again, requires the victim to have actually sustained a life-threatening injury.”
The case is U.S. v. Perez, 23-1993.
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