LUCERO, Circuit Judge.
Shortly before midnight one evening, Randall Zunie, dangerously drunk and recklessly out of control, drove his truck into the opposite lane of traffic and collided head-on with a smaller vehicle. The collision left a four-year-old boy permanently and severely disabled. Following a jury trial, the federal government obtained a conviction against Zunie for assault resulting in serious bodily injury. Zunie appeals, arguing that he lacked the requisite mens rea to suffer conviction. Because we conclude that a finding of recklessness supports a conviction for assault resulting in serious bodily injury, we
Careening down a 45 mph road at a speed exceeding 70 mph, Randall Zunie swerved between lanes in his one-ton truck and forced five or six vehicles off the road and onto a gravel shoulder. He then crossed into the opposite lane of traffic, heading directly toward Carla Laweka's half-ton pickup truck. Laweka attempted to evade Zunie, but to no avail. Zunie struck her vehicle head-on. After the collision, Laweka's four-year-old child, Nicky, lay unconscious on the floor. Laweka and her other child, Kayla, were in pain from serious injuries.
Kayla managed to roll down the truck's window and escape the smoke-filled cab. Despite a fractured left wrist, Laweka picked Nicky up and passed him through the window to Kayla. Laweka then crawled out of the truck through her own window. After laying Nicky on the ground, Laweka saw Zunie staggering toward her family with bloodshot eyes and reeking of alcohol. Zunie put his arm around Laweka and asked, "what's wrong? What happened?" Laweka pushed Zunie away, at which point he returned to his truck and attempted to start the engine. When his truck would not cooperate, Zunie packed some items from his cab into a brown paper sack and fled into the woods while sirens blared in the background, announcing the imminent arrival of emergency vehicles.
Due to severe head injuries sustained in the crash, Nicky has lost all ability to speak, move, or swallow food and water. He has lost control of his bowel and bladder and cannot keep his head elevated for a prolonged period of time. He is totally dependent on others for his care, which is being administered by his parents and a team of medical professionals.
Because Zunie and the Lawekas are Zuni Indians and the collision occurred on the Zuni Reservation, the Indian Major
In sentencing Zunie, the court adopted the factual findings of the pre-sentence report ("PSR"), which calculated Zunie's base offense level at 15. The PSR added six levels pursuant to U.S.S.G. § 2A2.2(b)(3)(C) because the victim sustained permanent or life-threatening bodily injury and added two levels for "making false statements, not under oath, to law enforcement officers." U.S.S.G. § 3C1.1. Starting from the PSR's recommended offense level of 23, the district court departed upwards fifteen levels. With the departures, Zunie faced an offense level of 38, which carries a guideline imprisonment range of 235 to 293 months. The statutory maximum for the underlying offense, however, is 120 months. Therefore, the court sentenced Zunie to the statutory maximum. The court also imposed an alternative sentence of 120 months "in the event the guidelines are determined to be unconstitutional." Zunie appeals his conviction and sentence.
To convict Zunie of assault resulting in serious bodily injury, the government had to prove: (1) that Zunie assaulted Nicky; (2) that Nicky suffered serious bodily injury; (3) that the assault occurred in Indian country; and (4) that Zunie is an Indian. See 18 U.S.C. §§ 113(a)(6) and 1153. Zunie argues that insufficient evidence supports the jury's verdict because the government failed to prove the first element, viz., that Zunie is guilty of assault. Specifically, he asserts that he lacked a culpable mens rea. We review challenges to the sufficiency of the evidence de novo and "ask only whether taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. McKissick, 204 F.3d 1282, 1289 (10th Cir.2000) (quotations and citations omitted). The government presented sufficient evidence that Zunie acted recklessly, and we conclude that recklessness is a culpable mens rea with respect to assault resulting in serious bodily injury under § 113(a)(6).
We have previously held that assault resulting in serious bodily injury is a general intent crime. See United States v. Benally, 146 F.3d 1232, 1237 (10th Cir. 1998) ("It is not necessary that defendant have assaulted the victim with the intent to do serious bodily harm — the resulting serious bodily injury coupled with the general intent to assault is sufficient to satisfy the elements of the felony"). In the common law, crimes are classified as either "general intent" or "specific intent" crimes. "This venerable distinction, however, has been the source of a good deal of confusion." United States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). Federal courts have adopted inconsistent definitions of "general intent"
The Model Penal Code suggests replacing conceptions of "specific intent" and "general intent" with a "hierarchy of culpable states of mind," including (1) purpose, (2) knowledge, (3) recklessness, and (4) negligence. Id.
Thus, under the Model Penal Code, an individual who acts purposely, knowingly, or recklessly possesses a culpable mens rea with respect to general intent crimes. This conclusion accords with the approach taken by the Eighth and Ninth Circuits, the only two circuit courts to have considered what constitutes the relevant mens rea for assault resulting in serious bodily injury under § 113(a)(6). In United States v. Loera, 923 F.2d 725 (9th Cir.1991), the Ninth Circuit addressed this issue in a case with nearly identical facts to the matter before us. After consuming a significant amount of alcohol, the defendant, a Native American, drove his truck on an Indian reservation. His erratic driving forced at least one vehicle off the road before he crossed the center line and collided with a small car. The defendant was convicted of assault resulting in serious bodily injury based on evidence that he severely injured a five-year-old passenger in the other vehicle. Rejecting a challenge to the sufficiency of the evidence, the court looked to the common law and determined that "[a]t common law a criminal battery was shown if the defendant's conduct was reckless." Id. at 728. The jury had before it sufficient evidence to convict because the defendant's conduct "showed a reckless disregard for the safety of others." Id. Explicitly following the reasoning of Loera, the Eighth Circuit held in United States v. Ashley, 255 F.3d 907 (8th Cir.2001), that the defendant possessed "the necessary mens rea to constitute assault resulting in serious bodily injury" because he "not only chose to drive drunk, but he also knew the van's brakes didn't work properly." Id. at 911; see also Model Penal Code § 211.1(2)(a) ("A person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life").
Based on our case law, and the persuasive authority provided by the Model Penal Code and the decisions of our sister circuits, we hold that a finding of purpose, knowledge, or recklessness supports a conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6). If, taking the evidence in the light most favorable to the government, a reasonable jury could have found that Zunie acted purposely, knowingly, or recklessly, then sufficient evidence supports the jury's verdict in this case.
Zunie challenges the district court's decision to depart upwards fifteen levels when imposing sentence, and also argues that his sentence violates the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that the degree of departure was reasonable and that any Booker error is harmless.
"When reviewing a district court's application of the Sentencing Guidelines, we review legal questions de novo and we review any factual findings for clear error, giving due deference to the district court's application of the guidelines to the facts." United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.2005) (quotation omitted). Zunie argues that the court's decision to impose a fifteen level upward departure was unreasonable. Because Zunie was sentenced prior to Booker, "we are only reviewing the degree of departure, not the overall sentence, for unreasonableness." United States v. Martinez, 418 F.3d 1130, 1133 n. 3 (10th Cir.2005). In conducting this review, "we are to consider `the district court's proffered justifications, as well as such factors as: the seriousness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing pattern of the Guidelines, and the need to avoid unwarranted sentencing disparities.'" United States v. Okane, 52 F.3d 828, 833 (10th Cir.1995) (quoting United States v. Flinn, 987 F.2d 1497, 1501 (10th Cir.1993)).
Our review of the record persuades us that the degree of departure was not unreasonable. At the sentencing hearing, the court made extensive findings in support of its decision to depart upwards fifteen levels. Additionally, the court provided
Pursuant to U.S.S.G. § 5K2.21, the court departed four levels because the guidelines did not account for the serious physical injuries sustained by Laweka and Kayla and because Zunie was not charged with two additional counts of assault resulting in serious bodily injury. In addition, the court found that "Kayla lost several teeth and still has tiny shards of glass in one of her eyes. It should also be noted this accident occurred only days before her high school graduation. Further, Carla [Laweka] fractured her wrist and was extremely bruised throughout her body." The district court's proffered justifications amply support a fifteen level departure and the other factors guiding our review — such as the seriousness of the offense and the need for just punishment and deterrence — demonstrate that the degree of departure is reasonable.
Zunie asserts that his sentence was imposed in violation of Booker. He argues that the court committed constitutional Booker error by mandatorily enhancing his base offense level based on facts not found by a jury and that the court committed non-constitutional Booker error by treating the guidelines as mandatory. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.2005) (en banc).
We review Zunie's constitutional and non-constitutional Booker claims for harmlessness because he raised an objection under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), during sentencing proceedings in the court below. United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir.2005). Pursuant to harmless error review, any error "that does not affect substantial rights must be disregarded." Fed. R.Crim.P. 52(a). Because the district court, in the exercise of its discretion, departed upwards fifteen levels, because the court stated "if I had jurisdiction to do so, I would impose a sentence of 293 months," because the court sentenced Zunie to the statutory maximum of 120 months, and because the court imposed an alternative sentence of 120 months "in the event the guidelines are determined to be unconstitutional," we have little trouble concluding that any Booker error was harmless. See, e.g., United States v. Riccardi, 405 F.3d 852,
Pursuant to the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. §§ 3663A et seq., the district court found that restitution in the amount of $1,794,469 was appropriate. "The MVRA requires the court to order restitution in any case involving a conviction for an offense that constitutes a crime of violence as defined by 18 U.S.C. § 16(a), including assault resulting in serious bodily injury." Reano, 298 F.3d at 1210. Zunie argues on appeal that the district court erred by imposing restitution without regard to Zunie's indigence and by ordering that the total amount of restitution is due "in full immediately."
According to the explicit terms of the MVRA, "[i]n each order of restitution, the court shall order restitution to each victim in the full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant." 18 U.S.C. § 3664(f)(1)(A) (emphasis added). Therefore, by disregarding Zunie's ability to pay when calculating the total amount of restitution, the district court acted properly. However, the district court neglected to set forth an appropriate payment schedule. The MVRA provides that, after determining the amount of restitution owed to each victim, the district court "shall . . . specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid." 18 U.S.C. § 3664(f)(2). When setting a schedule of payments, the district court must consider "the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled; projected earnings and other income of the defendant; and any financial obligations of the defendant; including obligations to dependents." Id.; see also United States v. Williams, 128 F.3d 1239, 1242 (8th Cir.1997) ("The MVRA requires the district court to schedule restitution payments taking into account the defendant's resources, projected earnings, and financial obligations"). We therefore remand for the district court to set an appropriate payment schedule in light of the statutory factors.