United States Court of Appeals Fifth Circuit F I L E D REVISED MAY 23, 2006 February 13, 2006 UNITED STATES COURT OF APPEALS For the Fifth Circuit Charles R. Fulbruge III Clerk
No. 04-31138
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
CHRISTOPHER BAILEY,
Defendant-Appellant
Appeal from the United States District Court For the Western District of Louisiana (03-50041-01)
Before JONES, Chief Judge, and KING, and DENNIS, Circuit Judges.
PER CURIAM:1
The defendant, Christopher Bailey, appeals his conviction and
sentence for committing cruelty to a juvenile at a place under the
exclusive jurisdiction of the United States, in violation of 18
1 Pursuant to 5th CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th CIR. R. 47.5.4.
1 U.S.C. §§ 7(3) and 13, incorporating La. Rev. Stat. § 14:93. Mr.
Bailey argues that the evidence was insufficient to support the
jury’s findings that the crime was committed within the confines of
Barksdale Air Force Base, a place under the exclusive jurisdiction
of the United States, and that Mr. Bailey was the perpetrator of
the crime. Mr. Bailey also argues that the district court’s
imposition of the maximum statutory sentence, 120 months, was
unreasonable. We find none of Mr. Bailey’s arguments convincing
and affirm his conviction and sentence.
Background
In November and December of 2001, the defendant-appellant,
Christopher Bailey, and his wife, Robin Bailey, lived with their
infant son, P. B., on Barksdale Air Force Base near Shreveport,
Louisiana. Robin, an active duty senior airman, worked nights on
the base. Christopher, unemployed, stayed at home and cared for
the baby, P.B.. The Baileys did not employ any child care worker,
daycare, or babysitter, or have any relative care for the infant
during this period.
On December 14, 2001, at about 2:00 a.m., Christopher called
his wife from their home on the base and told her that the baby’s
“left arm moved where it shouldn’t move.” She immediately left
work and the two took the baby to the emergency room of a civilian
hospital in Shreveport, Louisiana. The emergency room doctor
testified that Robin Bailey told him that the infant had not been
2 using his left arm for two days. She also told the doctor that
when she came home at about 5:30 a.m. on December 13, 2001, “she
noticed that the infant was favoring his arm and when she picked
him up, he would cry and he was more irritable.” In addition, she
had observed that he had switched which fist or thumb he sucked,
from left to right hands, and noticed before leaving for work on
the 13th that he was guarding his left arm. The baby had no
bruises or external signs of injury or physical abuse, but appeared
to experience pain when the doctor “palpated or pressed on the area
of his upper arm.” The baby was slightly less than two months old.
At this point in the emergency room visit, neither parent offered
an explanation for the pain nor described any traumatic happening
affecting the baby.
Dr. Bounds, the emergency room doctor, ordered x-rays of the
arm to help determine the cause of the pain. The x-rays revealed
a fracture of the left humerus, a bone in the upper arm. The
fracture was described as “acute,” meaning recent, “displaced”
meaning the two parts of the bone had moved apart, and painful.
Further x-rays revealed another fracture, this one in the right
ulna, one of two long bones between the wrist and elbow. This
fracture was non-displaced.
Dr. Bounds suspected abuse because two fractures are unusual
in an eight-week-old child. The doctor called hospital security,
as a precaution, and went to talk with the Baileys. The emergency
3 room nurse described Robin Bailey’s behavior and concern as normal,
she offered only one possible explanation, that perhaps the baby’s
blanket had been wrapped too tight.2 In contrast, Christopher
Bailey offered the initial explanation that he had rolled over on
the baby accidentally while the two were napping on the couch four
days earlier. He then offered several other explanations to
investigators as follows: “Maybe that he might have dropped or
almost dropped [P.B.] and caught him by his arm when he was
playing. Maybe he slipped through his arms and he grabbed him by
his arm.” He also told an investigator that he may have pulled the
child too hard to get him out of a car seat. Christopher told the
investigators that “[P.B.] had been favoring his left arm and
crying more than normal for 2-3 days.”
The emergency room doctor was required to report suspected
abuse and notified both state and Air Force officials. The Air
Force and Louisiana Social Services sent investigators to the
emergency room that morning. The investigators interviewed the
Baileys and the state took the infant into protective custody.
Later in the investigation the government learned that the
Baileys had taken the infant to the pediatric clinic on the Base in
November because of what looked like a rash on his face and a
scratch on his eye. P.B. was then about a month old. The nurse
practitioner who saw the baby that day also testified at trial.
2 Expert medical witnesses testified at trial that this could not have caused the baby’s injuries.
4 She testified that the rash on the baby’s face was “petechia” which
she described as small bruises under the skin caused by trauma, or
by coughing or vomiting. The Baileys told her that the baby had
not been either coughing or vomiting. The nurse practitioner also
noticed a “petechial rash in a linear patter on the arm.”
Christopher told her that the baby had rolled off the couch. The
nurse practitioner thought this was odd because one-month-old
babies are not physically capable of rolling over. She also
observed that while Robin was appropriately concerned, Christopher
was increasingly nervous as she asked more questions.
The nurse practitioner ordered a full skeletal x-ray. While
nothing was detected at the time, during the investigation expert
examination of those x-rays revealed something called a metaphyseal
fracture in the infant’s right radius, which is the other long bone
between the elbow and the wrist. This fracture was described at
trial as follows:
It’s a fracture that is seen only in patients 18 months and younger. It occurs at the ends of the bone, where the bone is still growing. The bones grow in length from the ends. And this Fracture occurs transversely across this weak bone. And it can be a very, very subtle fracture. It can be over looked without any problem. Dr. Boos, an expert in child abuse, testified that P.B.’s
metaphyseal was a classic metaphyseal fracture and further that:
The classic metaphyseal fracture has been called the radiological finding that is most strongly associated with abuse, meaning there is no other thing you can find in an x-ray that presents stronger evidence -- no other single thing that you can find on an x-ray that presents stronger evidence of child abuse. The accidental
5 fracture of this type is barely ever seen.
Dr. Boos testified that this type of fracture is usually caused if
the bones are “shaken or whipped side to side.” He also testified
that at his age, P.B. was incapable of inflicting this injury on
himself.
In addition to the testimony about the cause of the injuries
to P.B., Dr. Boos also testified about the Baileys delay in seeking
treatment. He testified that the x-rays taken on December 14, 2001
revealed that the fractures in both arms had occurred some time
prior to December 14. He stated that he was concerned about the
delay in seeking treatment because “whenever there is a delay in
care seeking for an injury as severe as this, as painful as this,
then we would worry why someone is not bringing the child in, and
with, that, worry about child abuse.” He testified:
Now, I would hope that any parent who has a child, a very young child, not quite two months, who stops using one extremity and has a change in temperament toward irritability would go to see the doctor. Certainly a parent who knew that onset immediately after a trauma event would be on even greater notice to do so.
As discussed above, the Baileys told the Emergency Room doctor and
investigators that they noticed at least some of P.B.’s symptoms
two days before they brought him to the hospital or sought any
medical attention.
During the trial the defense raised the possibility that P.B.
had a condition called osteogenesis imperfecta, “brittle bone”
6 disease. P.B.’s little brother had been evaluated for that
condition and the results had been equivocal. If P.B.’s little
brother has the condition, which is genetic, there is a 50 percent
chance that P.B. has it as well. The radiologist who examined
P.B.’s x-rays at the hospital in September testified that his bones
looked normal for a two-month-old, except for the fractures. Dr.
Boos testified that P.B. did not have the characteristics of
children with osteogenesis imperfecta (blue sclera, short for his
age, etc.).
An expert for the defense, Dr. Harold Chen, chief of perinatal
genetics at the Louisiana Health Science Center in Shreveport,
Louisiana, testified about the different types of osteogenesis
imperfecta including Type IV, a milder form of the disease, which
was once considered rare but now is “one of the most common
variable forms.” He testified that a child with Type IV would not
necessarily have blue sclera or be abnormally short. He, however,
testified that he could not reach a conclusion about whether P.B.
suffers from osteogenesis imperfecta of any type.
Dr. Boos admitted that if a child sustained fractures in a
presumably safe environment it “would suggest that his bones are
more fragile.” However, P.B.’s foster mother, who has had custody
beginning in May of 2003, testified that since he had been in her
custody P.B. had not suffered any broken bones or other medical
problems. She testified that she did not take any “special care”
7 with P.B. and that he engaged in usual activities for a child his
age.
At the conclusion of the trial the jury convicted Christopher
Bailey and acquitted his wife. At sentencing, the district court
applied the, then mandatory, federal sentencing guidelines. The
court used U.S.S.G. § 2A2.2, the guideline range for aggravated
assault, finding it to be the most analogous guideline. The
district court then upwardly departed from that range pursuant to
U.S.S.G. § 5K2.21.
The court’s upward departure was based on uncharged conduct
discussed in the Pre-Sentence Report. Following the injury to P.B.
and his removal from his parents’ custody, the state of Louisiana
awarded custody to his paternal grandmother, who lived in Colorado
Springs, Colorado. Upon being discharged from the Air Force in
2002, Robin Bailey, together with her husband, moved to Colorado.
The Baileys lived with P.B. and his grandmother. In February 2003,
they had a second child, A.B.. On May 24, 2003, the Baileys brought
A.B. to an emergency room in Colorado. X-rays revealed 20
fractures, including fractures to the femur, tibia, left ulna and
ribs. The fractures were in different states of healing. The
doctors also noted bruising to the infant’s head and cheek.
When asked for an explanation, Robin Bailey told the doctors
that P.B. had osteogenesis imperfecta, even though physicians had
already ruled it out as the cause of P.B.’s injuries, and opined
8 that it could be the cause of A.B.’s injuries as well. The
attending physician found that the injuries were non-accidental,
and thus, inconsistent with osteogenesis imperfecta. As noted at
trial, testing of A.B. for the disease was equivocal. The
sentencing judge noted that A.B. had suffered no further injury
once removed from his parent’s care.
In addition, Christopher told the doctor that on the morning
of May 24, at about 10:00 a.m., he noticed that A.B.’s leg appeared
to be dislocated, but he and his wife left the baby with his
grandmother in order to go house hunting and did not seek medical
care until taking the child to the hospital at 5:00 p.m. A.B. was
removed from his parent’s custody.
At sentencing the defendant argued that this uncharged crime
or crimes had not been proven at trial, but offered no further
evidence attempting to disprove the facts as reported in the PSR.
The court sentenced Christopher to the statutory maximum, 120
months imprisonment, to be followed by three years supervised
release. As noted above, Mr. Bailey appeals both his conviction
and his sentence.
Analysis
Conviction
Mr. Bailey claims that the jury was presented with
insufficient evidence to support his conviction. He contends that
the government did not prove that the offense occurred in a place
9 under the exclusive jurisdiction of the United States, in this case
Barksdale Air Force Base, as required by the Assimilative Crimes
Act, 18 U.S.C. §§ 7(3) and 13. He also argues that there was
insufficient evidence to support the jury’s finding that he was the
perpetrator of any alleged cruelty to a juvenile, including (1)
that his acquitted wife was equally likely to be the perpetrator,
(2) that there was insufficient proof of cruelty or abuse, (3) that
there was insufficient proof that the child suffered unjustifiable
pain or suffering, and (4) that there was insufficient proof that
he intentionally or negligently failed to seek timely medical care
for the child. We are unconvinced by any, and all, of Mr. Bailey’s
arguments and, therefore, affirm his conviction.
Standard of Review
The defendant moved for acquittal following the government’s
case-in-chief and at the close of all of the evidence, therefore,
in reviewing the sufficiency of the evidence this court reviews
denial of the motion for judgment of acquittal de novo. United
States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998). To do so, the
court determines whether, viewing all of the evidence in the light
most favorable to the government, a rational trier of fact could
have found that the elements of the offense were proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996); United
States v. Meyers, 104 F.3d 76, 78 (5th Cir. 1997). “Direct and
10 circumstantial evidence are given equal weight, and the evidence
need not exclude every hypothesis of innocence.” United States v.
Dien Duc Huynh, 246 F.3d 734, 742 (5th Cir. 2001)(citation and
internal quotation marks omitted.)
Sufficiency of the Evidence
First, Mr. Bailey argues that there was insufficient evidence
to prove that the alleged offense occurred within the confines of
Barksdale Air Force Base. Mr. Bailey assumes without discussion
that the government must prove this ‘jurisdictional’ element beyond
a reasonable doubt. The government, however, points out United
States v. Bell, a Fifth Circuit case from 1993 that has never been
directly overruled. 993 F.2d 427 (5th Cir. 1993). Bell held that
the preponderance of the evidence standard applies to the
“exclusive or concurrent jurisdiction” element of the federal
Assimilative Crimes Act. Id. at 429; 18 U.S.C. §13. This holding,
as the government admits, has been questioned by a subsequent panel
United States v. Perrien, 274 F.3d 936, 939 n. 1 (5th Cir. 2001).
We share the Perrien court’s concerns and likewise note the Supreme
Court’s discussions of the right to proof beyond a reasonable doubt
afforded by the Due Process Clause and the Sixth Amendment. See
Apprendi v. New Jersey, 530 U.S. 466, 476 (2000); In re Winship,
397 U.S. 358, 364 (“[W]e explicitly hold that the Due Process
Clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the
11 crime with which he is charged.”); United States v. Gaudin, 515
U.S. 506 (1995); Patterson v. New York, 432 U.S. 197 (1977). Again,
however, we need not resolve the issue because we find that the
government met the higher of the two burdens of proof.3 There was
sufficient evidence for the jury to find beyond a reasonable doubt
that the alleged crime was committed on Barksdale Air Force Base.
Mr. Bailey argues that the government case with respect to the
actual situs of the crime was circumstantial. Mr. Bailey admits
that the government proved that he, and his wife and infant son,
lived on the base during the relevant time period, November and
December 2001. His brief also admits that at the time of the
alleged crimes his wife worked on the base and that he was
unemployed and the sole care giver during the times that his spouse
was at work, generally between 9:00 p.m. and 5:00 a.m. It is
reasonable for the jury to infer that a two-month-old baby and his
father would be at home between 9:00 p.m. and 5:00 a.m. Mr. Bailey
argues that the government produced no eyewitnesses placing the
crime on the base. It would be extremely unlikely for a parent to
shake an infant, the kind of conduct, doctors testified, that would
cause the kind of injuries suffered by P.B., in the presence of
witnesses, making it reasonable for the jury to infer that such
conduct occurred inside the home. See Perrien, 274 F.3d at 940.
3 The jury was instructed to base its finding on this element using a beyond a reasonable doubt standard.
12 The defendant’s own statements about when he noticed that the child
was not using his arm and crying also support a jury finding that
the defendant was criminally negligent in failing to seek medical
care for his child while present on the military post.
Second, Mr. Bailey claims that there was insufficient evidence
to prove that he, and not his acquitted co-defendant wife, was the
perpetrator of the abuse. He argues that the evidence gave equal
or nearly equal support to a theory of guilt or a theory of
innocence, apparently referencing United States v. Lopez, which
held that the court should reverse a conviction where the evidence
“gives equal or nearly equal circumstantial support to a theory of
guilt and a theory of innocence.” 74 F.3d at 577. Mr. Bailey
suggests that he was convicted while his wife was acquitted because
of alleged cultural stereotypes holding that “stay-at-home
fathers,” or men, in general, are more likely to be violent than
“working mothers,” or women, in general. He argues that the jury
simply had to pick one of the parents, and they picked him.
We disagree, there are several things in the record that
render the evidence unequal in its support of paternal and maternal
alternative theories of guilt. Mr. Bailey was the parent with sole
physical custody of the child for long periods of time. In
addition, the pediatric nurse practitioner testified that when both
parents brought P.B. into the clinic to have his eye and rash
examined, Robin Bailey behaved like a normal mother in the
13 situation, while Christopher grew increasingly nervous as she asked
more questions about the cause of the infant’s condition. Further,
Mrs. Bailey offered only one possible explanation for the fractures
to P.B.’s arms. In contrast, Christopher Bailey made inconsistent
statements to the doctor and investigators. “The evidence does not
need to exclude every reasonable hypothesis of innocence; the jury
is free to choose among reasonable interpretations of the
evidence.” Perrien, 274 F.3d at 939-940 (citations omitted). The
jury in this case has done so.
Mr. Bailey also contends that the government failed to present
sufficient evidence to prove the unjustifiable pain or suffering
element of the incorporated Louisiana Cruelty to Juveniles statute.
The defendant’s appears to argue both that the infant was not in
pain or suffering and that any pain or suffering was not
unjustified as medical care was timely sought. Common sense and
the x-rays presented to the jury alone make the argument that the
child was not in pain almost ridiculous. The x-rays together with
the parents’ statements that the child was not using his arm,
guarding his arm, and crying more than usual, and the expert
testimony of three doctors that a fracture like the one in the
infant’s left arm would be painful, are certainly enough to support
a jury verdict as to this issue.4
4 The defendant notes that no pain medication was administered in the emergency room and that at the time the infant was brought in the child was not crying or outwardly
14 As for the argument that the pain and suffering were not
unjustifiable because the Baileys brought the child to the hospital
in a timely fashion, we note that the cause of the injuries is also
relevant to the unjustified nature of the pain. In any event, the
parents’ testimony indicates that they noticed that the baby was
not using his arm, guarding it, and crying more than usual for two
to three days. One doctor placed the fractures as happening
anytime between immediately before the x-rays to two or three days
earlier. Another expert testified that the fractures of the ulna
and humerus had likely occurred some time prior to December 14, the
day the baby was brought to the emergency room. He explained that
the x-rays supported this finding because generally a few days
after the fracture, the fracture line on a x-ray is widened as the
body cleans up the bone fragments and begins to heal. In the x-rays
of P.B. taken on December 14 the fracture line on his humerus was
“quite wide.” In combination, the history provided by the parents
and the x-rays provide sufficient evidence for the jury to find
beyond a reasonable doubt that the pain and/or suffering of P.B.
caused by the delay in treatment was unjustified.
Sentence
The defendant was sentenced on October 28, 2004, before the
exhibiting signs of distress. The medical significance of the absence of the administration of pain medication was not explained at trial, nor was the lack of outward signs of distress during that particular time period. The left arm was put in an immobilizing sling.
15 United States Supreme Court decided United States v. Booker, 543
U.S. 220 (2005). The defendant has not, however, raised any
argument before this court based on Booker.5 Instead, the defendant
is arguing that the district court misapplied the sentencing
guidelines, that the district court erred in upwardly departing
from the guidelines on the basis of uncharged conduct, and that the
sentence was, on the whole, unreasonable.
This court reviews a district court’s pre-Booker determination
of the appropriate guideline range de novo. United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005)(“We conclude that when
a district court has imposed a sentence under the Guidelines, this
Court continues after Booker to review the district court’s
interpretation and application of the Guidelines de novo.”) As
discussed in United States v. Smith and United States v. Saldana,
after Booker, we review an upward departure for reasonableness, but
in doing so we use an abuse of discretion standard. Smith, 417
5 This is perhaps wise. Mr. Bailey raised a Blakely based objection at sentencing and, therefore, review is for harmless error. Blakely v. Washington, 542 U.S. 296 (2004); United States v. Pineiro, 410 F.3d 482 (5th Cir. 2005). While the burden is on the government to prove that the error is harmless, the district court did depart from the guidelines and sentence the defendant to the statutory maximum. As the defendant has waived the argument on appeal, we need not decide whether this is enough, standing alone, to prove that the court would not have sentenced the defendant differently under an advisory scheme. Cf. United States v. Woods, 440 F.3d 255 (5th Cir. 2006); United States v. Cunningham, 405 F.3d 497, (7th Cir. 2005)
16 F.3d 283, 489-90 (5th Cir. 2005); Saldana, 427 F.3d 298, 308 (5th
Cir. 2005).
Applicable Guidelines Range
The district court applied U.S.S.G. § 2A2.2 as the most
analogous offense guideline for the conviction for “cruelty to a
juvenile” under the Assimilative Crimes Act. 18 U.S.C § 13; see,
e.g., United States v. Calbat, 266 F.3d 358 362 (5th Cir. 2001);
United States v. Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990). The
defendant argues that the district court should have applied
U.S.S.G. § A2.3 because P.B.’s injuries did not rise to the level
of “serious bodily injury” as the term is defined by the Guidelines
and used in U.S.S.G. § 2A2.2.
“Aggravated assault” is defined in the application notes to
U.S.S.G. §2A2.2 as: “[F]elonious assault that involved (A) a
dangerous weapon with intent to cause bodily injury (i.e., not
merely to frighten) with that weapon; (B) serious bodily injury; or
(C) an intent to commit another felony.” Subsections (A) and (C)
are not at issue, and thus the definition of “serious bodily
injury” is key. The Sentencing Guidelines define the term as
“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.S.G. § 1B1.1.
Mr. Bailey argues that P.B.’s injuries were not this severe.
17 He argued, as discussed above, that P.B. suffered no pain. He also
argues that no surgery, or physical rehabilitation was necessary
and that P.B. was not “hospitalized,” but merely treated in the
emergency room and admitted to the pediatric intensive care unit
for security reasons and not for medical treatment. The definition
of severe bodily injury, however, also includes the “protracted
impairment of a function of a bodily member.” This Circuit has
noted that severe bodily injury includes temporary severe injury.
See United States v. Price, 149 F.3d 352 (5th Cir. 1998). A
displaced fractured humerus is impairment of the function of a
bodily member. The baby’s arm was placed in an immobilizing sling,
and had stopped using the arm even before the emergency room visit.
In addition, at least one other circuit has held a fracture to be
a serious bodily injury. United States v. Reese, 2 F.3d 870, 897
(9th Cir. 1993)(“‘Serious’ injury is defined in relevant part to
include “injury involving . . . the impairment of a function of
a bodily member. . . .” U.S.S.G. § 1B1.1 at Application Note 1(j).
[The victim] was diagnosed with a fractured elbow and ordered to
wear a sling, and testified that he was unable to write out the
complaint he wished to file with the OHA police because of his
injury. His injury thus unquestionably falls within the definition
set forth by the Guidelines.”). We find no error in the district
court’s use of U.S.S.G. § 2A2.2 as the most analogous guideline
offense.
18 Upward Departure
The district court upwardly departed from a guidelines’ range
of forty-six (46) to fifty-seven (57) months and sentenced Mr.
Bailey to the statutory maximum of 120 months. The upward
departure was based on U.S.S.G. § 5K2.21, which provides:
The court may increase the sentence above the guideline range to reflect the actual seriousness of the offense based on conduct (1) underlying a charge dismissed as part of a plea agreement in the case, or underlying a potential charge not pursued in the case as part of a plea agreement or for any other reason; and (2) that did not enter into the determination of the applicable guideline range.
The district court expressly adopted the findings of the U.S.
Probation Office as contained in the Pre-Sentence Report and as
discussed above based the departure on uncharged conduct described
therein, specifically injuries sustained by P.B.’s younger brother
A.B. The court found that the behavior of the defendant with
respect to A.B. was not charged or included in relevant conduct.
He also found that both children were removed from Mr. Bailey’s
custody and placed in foster care. He also found that the injuries
to both children were severe and involved multiple fractures. He
further noted that after being removed from the custody of the
defendant and his wife the children had “flourished” and that
neither had since suffered physical injury of any kind.
Mr. Bailey objected to the upward departure at sentencing and
renews his objections here. First, he argues that the court heard
19 no evidence about the extent of A.B.’s injuries. At sentencing,
however, he couched his objection in terms of a failure to prove
the facts to a jury, and when the court asked if he was contesting
the accuracy of the information his attorney said “No, sir.” It
appears the “information” being discussed was the fact of the
injuries and the removal of the children, and not the defendant’s
responsibility for those injuries and consequent removal. This
seems to be the most reasonable interpretation of the exchange
because later in the sentencing hearing Mr. Bailey argues the
possibility, discussed at trial, that A.B. has osteogenesis
imperfecta and that it was this disease, and not any abuse, that
caused the twenty broken bones A.B. suffered as an infant.
“Presentence reports generally bear indicia of reliability
sufficient to permit reliance thereon at sentencing.” United
States v. Cabrera, 288 F.3d 163, 172 (5th Cir. 2002); accord United
States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
Although a district court must resolve disputed issues of fact if it intends to use those facts as a basis for sentencing, see Fed.R.Crim.P. 32(c)(3)(D), the court can adopt facts contained in a PSR without inquiry, if those facts had an adequate evidentiary basis and the defendant does not present rebuttal evidence. United States v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir.), cert. denied, 498 U.S. 857, 111 S.Ct. 158, 112 L.Ed.2d 124 (1990). Furthermore, the defendant has the burden of showing that information that the district court relied on in sentencing is materially untrue.
United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994).
In this case, the defendant failed to put on any rebuttal evidence
20 at sentencing. At best, he referred to evidence introduced at
trial about the possibility that his son A.B. has osteogenesis
imperfecta. As discussed above, a skin biopsy performed on A.B. to
test for the disease was equivocal and no doctor testified that
A.B. had been diagnosed with the disease. The sentencing judge
specifically noted that A.B. had flourished since being removed
from his father’s custody and apparently remained unconvinced by
Mr. Bailey’s argument that his son suffered from osteogenesis
imperfecta and not child abuse. The uncharged conduct described in
the PSR adopted by the trial court and which the court specifically
discussed in its sentencing decision is sufficient to support an
upward departure under U.S.S.G. § 5K2.21. We find no abuse of
discretion in the district court’s decision to upwardly depart from
the applicable guidelines’ range.
Finally, Mr. Bailey argues that his 120-month sentence, as a
whole, is unreasonable. See 18 U.S.C. § 3553(a). He argues that he
is not the worst kind of offender for whom the statutory maximum
punishment should be reserved. He points out that he was a first
time felony offender, a new parent, and only twenty-one at the time
of the offense. He also argues that the crime had no pecuniary
motive and did not entail planning or forethought. Finally, he
emphasizes that the incorporated Louisiana cruelty to juveniles
statute includes not only intentional conduct, but also criminally
negligent treatment or neglect. The defendant asserts that the
jury could have found him guilty based only on a finding of neglect
21 or criminal negligence, and thus, a sentence at the statutory
maximum is unreasonable. We disagree. We address Mr. Bailey’s
last argument first. The statutory maximum for this criminal
statute is specific to the crime. The statutory maximum applies
equally to intentional and criminally negligent mistreatment or
neglect. La. Rev. Stat. § 14:93. The Louisiana Legislature
apparently concluded that some instances of criminally negligent
mistreatment could warrant ten years imprisonment. In this case,
it is possible that the jury convicted based only on a finding of
criminal negligence. The sentencing judge, however, appears to have
found that the mistreatment was intentional. He also specifically
noted the severity of the injuries to both children. Given the
vulnerability and defenselessness of the infants, the severity of
the injuries, the failure to timely seek medical attention, the
repeated instances of abuse, and the lack of any expressed remorse,
we find that the sentence imposed by the trial court was
reasonable.
AFFIRMED.