Witness testimony of assault victim lying on ground while bleeding from head was insufficient evidence for serious injury sentence enhancement

SENTENCING United States v. Egbert, No. 07-4180, ___ F.3d ___ (10th Cir. Apr. 14, 2009)(Utah). Appeal of sentence for conspiracy to interfere with civil rights and aiding and abetting the interference with federally protected activity stemming from racially motivated assault in violation of 18 U.S.C. §§ 2, 241, and 245(b)(2)(C). HELD: District court erred by enhancing defendant’s base offense level by finding victim suffered serious bodily injury. Even though witnesses described victim being beaten to ground and left unmoving with bleeding from head, this evidence was insufficient to show "serious bodily injury," where "serious bodily injury," as opposed to mere "bodily injury" is defined as "protracted impairment of function of bodily member, organ, or mental faculty." Read the opinion here.