United States v. Marlon Hamm, 13 F.3d 1126 (7th Cir. 1994). · Go Syfert
United States v. Marlon Hamm, 13 F.3d 1126 (7th Cir. 1994). Cases Citing This Book View Copy Cite
58 citation events (27 in the last 25 years) across 9 distinct courts.
Treatment trajectory · 1994 → 2026 · click a year to view as-of
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At page 1127 Defining bodily injury for sentencing guidelines purposes13 citing casesfinding bodily injury where victim “suffered bumps and bruises and had the wind knocked out of him as a result of being hit and knocked down” and “sustained a back injury requiring chiropractic treatment5 citing courts put it this way · 12 listed here
  • United States v. Eubanks, 593 F.3d 645 (7th Cir. 2010).published 6 cites
    (finding bodily injury where victim “suffered bumps and bruises and had the wind knocked out of him as a result of being hit and knocked down” and “sustained a back injury requiring chiropractic treatment)
  • United States v. Michael Washington, No. 11-20563 (5th Cir. Dec. 10, 2012).unpublished
    (victim knocked down, causing bumps, bruises, and a back injury that required chiropractic treatment)
  • United States v. Michael Wilbourn, No. 11-20564 (5th Cir. Dec. 10, 2012).unpublished
    (victim knocked down, causing bumps, bruises, and a back injury that required chiropractic treatment)
  • United States v. Ronald Thomas, 500 F. App'x 279 (5th Cir. 2012).unpublished
    See United States v. Maiden, 606 F.3d 337, 339-40 (7th Cir.2010) (burning sensation in eyes from mace, causing victim to be unable to wear contact lenses), cert. denied, — U.S. -, 131 S.Ct. 348 , 178 L.Ed.2d 225 (2010); United States v. Ha…
  • United States v. Markle, 628 F.3d 58 (2d Cir. 2010).published
    (knocking victim down, causing bumps, bruises, and an injury treated by a chiropractor)
  • United States v. Grimes, Mario, 219 F. App'x 552 (7th Cir. 2007).unpublished
    (upholding increase where evidence showed that victim suffered bumps and bruises and had wind knocked out of him)
  • United States v. Mejia-Canales, 467 F.3d 1280 (10th Cir. 2006).published
    See Brown, 200 F.3d at 709 (upholding enhancement where “the victim sustained bleeding and a severe headache” from a beating, “as well as swelling, bruises, cuts and lumps on his face”); Perkins, 132 F.3d at 1326 (upholding enhancement whe…
  • United States v. Ofarrit-Figureoa, 15 F. App'x 360 (7th Cir. 2001).unpublished
    The district court instructed the jury that a “bodily injury” is “any injury which is ‘painful and obvious,’ even if the victim does not seek medical attention ... including a cut, abrasion, bruise, burn, or disfigurement, physical pain, i…
  • United States v. Ledford, Carl L., No. 99-1648 (7th Cir. June 27, 2000).published
    Besides this, the Government provides cases indicating that bumps and bruises and injuries that don’t necessarily require medical attention can constitute bodily injury under U.S.S.G. sec. 2B3.1(b)(A) (United States v. Hamm, 13 F.3d 1126,…
  • United States v. Carl L. Ledford, 218 F.3d 684 (7th Cir. 2000).published
    Besides this, the Government provides cases indicating that bumps and bruises and injuries that don’t necessarily require medical attention can constitute bodily injury under U.S.S.G. § 2B3.1(b)(A) (United States v. Hamm, 13 F.3d 1126, 112…
Show 2 more citing cases
  • United States v. Guerrero, 169 F.3d 933 (5th Cir. 1999).published
    The following has been found to constitute “bodily injury”: hitting the victim in the head with a gun and kicking him in the face, causing injury, Perkins, 89 F.3d at 308 ; spraying victims with mace, causing several injuries and requiring…
  • United States v. Leandro Pandiello, 184 F.3d 682 (7th Cir. 1999).published
    (collecting cases holding that victims need not seek medical treatment, and that bumps, bruises, and slaps can all satisfy the Guidelines’ requirements)
At page 1128 Determining significant injury for sentencing enhancement11 citing casesBecause the district court hears this evidence, it is by far best-suited to assess these myriad factors and determine whether a ‘significant injury’ has occurred.1 citing court put it this way · 10 listed here
  • United States v. Eubanks, 593 F.3d 645 (7th Cir. 2010).published 6 cites
    (Because the district court hears this evidence, it is by far best-suited to assess these myriad factors and determine whether a ‘significant injury’ has occurred.)
  • Drake v. Salt River Pima-Maricopa Indian Cmty., 411 F. Supp. 3d 513 (D. Ariz. 2019).published
    Fla. Paraplegic, Ass’n, Inc. v. Miccosukee Tribe of Indians of Fla., 166 13 F.3d 1126, 1128-30 (11th Cir. 1999).
  • United States v. Dominic Williams, No. 17-5120 (6th Cir. June 4, 2018).unpublished
    The analysis of a finding regarding permanent or life-threatening bodily injury is “highly fact specific,” id.; we are cognizant that “the district court is by far best-suited to assess that myriad of factors observable in hearing the evid…
  • United States v. Freddy Alexander, 712 F.3d 977 (7th Cir. 2013).published
    United States v. Hamm, 13 F.3d 1126, 1128 (7th Cir.1994), quoting United States v. Lancaster, 6 F.3d 208, 210 (4th Cir.1993).
  • United States v. Baggett, No. 01-6379 (6th Cir. Aug. 28, 2003).published
    As noted in United States v. Hamm, 13 F.3d 1126, 1128 (7th Cir. 1994), “the district court is by far Degree of Bo dily Injury Increase in Level best-suited to assess that myriad of factors observable in (C) Permanent or Life-Threatening Bo…
  • United States v. Donald Lynn Baggett, 342 F.3d 536 (6th Cir. 2003).published
    As noted in United States v. Hamm, 13 F.3d 1126, 1128 (7th Cir.1994), “the district court is by far best-suited to assess that myriad of factors observable in hearing the evidence presented.” We conclude that the finding by the district co…
  • United States v. Lister, 229 F. App'x 334 (5th Cir. 2007).unpublished
    See United States v. Hamm, 13 F.3d 1126, 1128 (7th Cir.1994).
  • United States v. King, No. 99-1544 (10th Cir. Aug. 8, 2000).unpublished
    See United States v. Hamm, 13 F.3d 1126, 1128 (7th Cir. 1994).
  • United States v. Perkins, 132 F.3d 1324 (10th Cir. 1997).published 2 cites
    See United States v. Hamm, 13 F.3d 1126, 1128 (7th Cir.1994).
  • United States v. Louis D. Hargrove, 201 F.3d 966 (7th Cir. 2000).published
    (victim suffered bumps and bruises and had the wind knocked out of him)
At page 1129 Determining enhancement for obstruction of justice10 citing casessentencing factors must be proved by a preponderance1 citing court put it this way
  • United States v. Brown, 843 F.3d 738 (7th Cir. 2016).published
    The prosecution bears the burden “to prove by a preponderance of the evidence that the enhancement is warranted.” Ewing, 129 F.3d at 434 , citing United States v. Hamm, 13 F.3d 1126, 1129-30 (7th Cir. 1994).
  • United States v. Richard J. Murzyn, 108 F.3d 1380 (7th Cir. 1997).unpublished
    United States v. Hamm, 13 F.3d 1126, 1129 (7th Cir.1994). 15 The district court also stated that Murzyn pleaded guilty to possession of all of the firearms, including the handguns at issue.
  • United States v. Kirk E. Bintzler, 56 F.3d 67 (7th Cir. 1995).published
    United States v. Hamm, 13 F.3d 1126, 1129-30 (7th Cir. 1994).
  • Terril A. Kraushaar v. Earl K. Flanigan, 45 F.3d 1040 (7th Cir. 1995).published
    United States v. Hamm, 13 F.3d 1126, 1129 (7th Cir.1994).
  • United States v. Marvin Dexter Linnear, 40 F.3d 215 (7th Cir. 1994).published
    The court further found that Lin-near’s credibility was nil because he had written a letter to a potential witness which the court construed as an attempt to suborn perjury. 3 “Special deference must be accorded to the lower court’s credib…
  • United States v. Matthew Wright, 37 F.3d 358 (7th Cir. 1994).published
    United States v. Hamm, 13 F.3d. 1126, 1129 (7th Cir.1994).
  • United States v. Donna A. Hatchett, 31 F.3d 1411 (7th Cir. 1994).published 2 cites
    United States v. Cotts, 14 F.3d 300, 305 (7th Cir.1994); United States v. Hamm, 13 F.3d 1126, 1129 (7th Cir.1994).
  • United States v. Brett Mumford, 25 F.3d 461 (7th Cir. 1994).published
    United States v. Cotts, 14 F.3d 300, 305 (7th Cir.1994); United States v. Hamm, 13 F.3d 1126, 1129 (7th Cir.1994).
  • United States v. Lynell R. Ewing, 129 F.3d 430 (7th Cir. 1997).published
    See United States v. Hamm, 13 F.3d 1126, 1129-30 (7th Cir.1994).
  • United States v. Phillip A. Delumo, 53 F.3d 333 (7th Cir. 1995).published
    (sentencing factors must be proved by a preponderance)
At page 1130 Reviewing court deference on credibility determinations4 citing cases“We find that the district court’s determination that the defendant attempted to suborn perjury by Seniours is supported by the evidence.”the opinion's own words at *1130
  • Rodriguez v. SMTC Mfg. Corp. of California, No. 4:24-cv-07398 (N.D. Cal. May 9, 2025).
    This provision reflects “both a liberal federal policy favoring 8 arbitration, and the fundamental principle that arbitration is a matter of contract.” AT&T Mobility 9 LLC v. Concepcion, 563 U.S. 333 , 339 (2011) (quotation marks and citat…
  • Cohen v. Chenowth, No. 3:22-cv-01451 (S.D. Cal. Mar. 16, 2023).
    Under California law, “[t]he doctrine of negligence per se is 11 not a separate cause of action, but creates an evidentiary presumption that affects the 12 standard of care in a cause of action for negligence.” Dent v. Nat’l Football Leagu…
  • United States v. Charles R. Michalek, 54 F.3d 325 (7th Cir. 1995).published 2 cites
    See United States v. Linnear, 40 F.3d 215, 222 (7th Cir.1994) (affirming obstruction enhancement where defendant attempted to suborn perjury); United States v. Hamm, 13 F.3d 1126, 1130 (7th Cir.1994) (same).
  • United States v. Chernoff, 23 F.3d 411 (7th Cir. 1994).published
    We also have noted that when a district court's factual finding is based on a credibility determination, as is a finding that the defendant testified untruthfully, we "should be 'especially disinclined to conclude on the basis of a cold re…
At page 1132 We may take judicial notice of undisputed matters of public 14 record, including documents on file in federal or state courts.” (citations omitted)2 citing cases1 citing court put it this way
  • Pit River Tribe v. Bureau of Land Mgmt., 512 F. Supp. 3d 1055 (E.D. Cal. 2021).published
    Harris v. City of Orange, 871 13 F.3d 1126, 1132 (9th Cir. 2012).
  • (PC) Rios v. Spearman, No. 1:19-cv-01009 (E.D. Cal. June 14, 2024).
    (We may take judicial notice of undisputed matters of public 14 record, including documents on file in federal or state courts.” (citations omitted))
At page 1134 cited at this page1 citing case
Other citing cases2 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Marlon HAMM, Defendant-Appellant
93-1282.
Court of Appeals for the Seventh Circuit.
Jan 12, 1994.
Published opinion
13 F.3d 1126
1994 U.S. App. LEXIS 534
1994 WL 7455
Mark D. Stuaan, Asst. U.S. Atty., Indianapolis, IN (argued), for U.S., Robert C. Perry, Indianapolis, IN (argued), for Marlon Hamm.
Bauer, Flaum, Roszkowski.
Cited by 49 opinions  |  Published
Pinpoint authority: bottom 87%
Citer courts: Seventh Circuit (1)
ROSZKOWSKI, District Judge.

This is an appeal from' a sentence of the district court following the defendant’s conviction for the January 23, 1992, robbery of the Coscó Credit Union in Columbus, Indiana.

On January 22, 1993, the district court sentenced the defendant to a term of ninety-six months, to be followed by a three year period of supervised release. In addition, the court ordered the defendant to make restitution in the amount of $40,100.00 and pay a special assessment of $50.00.

On appeal, the defendant challenges the district court’s interpretation and application of the United States Sentencing Guidelines (U.S.S.G.) which resulted in two separate upward adjustments for (1) bodily injury to the victim, pursuant to U.S.S.G. § 2B3.1(b)(3)(A), and (2) obstruction of justice by the defendant, pursuant to U.S.S.G. § 3C1.1.

The defendant asserts that the district court erred in its interpretation and application of the Guidelines. Specifically, he states: first, that the court misinterpreted the definition of “bodily injury” and second, that the court made an unreasonable application of the obstruction of justice guideline.

The defendant’s first contention is that the requirement that a “bodily injury” injury increase must “normally be the type of condition which requires medical treatment.” That argument wholly ignores the clear language of § 2B3.1(b)(3)(A) of the Sentencing Guidelines which calls for a two level increase in the Base Offense Level where any victim sustains a “bodily injury.” The term bodily injury is defined as follows:

“Bodily injury” means any significant injury; e.g., an injury that is painful and obvious or is of .the type for which medical attention ordinarily would be sought.

U.S.S.G. § 1B1.1 Comment (emphasis added).

The guideline is clearly worded in the disjunctive. The victim, Mr. Heitman, suffered[*1128] bumps and bruises and had “the wind knocked out of him” as a result of being hit and knocked down during the course of the robbery. PSR ¶ 14; Tr. vol. 2 at 38. In addition, there is evidence that he sustained a back injury requiring chiropractic treatment. PSR ¶ 14. Mr. Heitman described the robbery as follows: “[s]omebody hit me right here, grabbed the money, and shoved me down right here and took off with the money.” Tr. vol. 2 at 12, 14.

Courts have found that “painful and obvious” injuries constitute “bodily injuries” even if the victim does not seek medical attention. Thus, a teller who had her face slapped twice during a bank robbery suffered a “bodily injury.” United States v. Greene, 964 F.2d 911, 912 (9th Cir.1992); see also United States v. Isaacs, 947 F.2d 112, 114-115 (4th Cir.1991). Similarly, a teller who hit her head and hip on a drawer in the course of lying down on the floor during a robbery suffered a “bodily injury.” United States v. Fitzwater, 896 F.2d 1009, 1012 (6th Cir.1990); see also United States v. Muhammad, 948 F.2d 1449, 1456 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1239, 117 L.Ed.2d 472 (1992).

We note one recent case which found that the injury did not constitute a “significant injury” for sentencing enhancement purposes which might arguably support the defendant’s position. In United States v. Lancaster, 6 F.3d 208 (4th Cir.1993), the court held that injury to a security guard who was sprayed in the eyes with mace was not a “significant injury” so as to constitute “bodily injury” for sentencing enhancement purposes. That case is wholly consistent with our finding here. In that case, the government appealed from the district court’s refusal to enhance the defendant’s sentence. Here the defendant is appealing the district court’s enhancement of the defendant’s sentence. In either ease, the test is the same, namely, whether the finding of the district court was clearly erroneous. In affirming the sentence imposed by the district court, the court said:

[T]he term “significant injury” by its open-ended nature, cannot be defined with exactitude. Whether an injury is “significant,” thus, should not be determined by a precise standard meted out at the appellate level and mechanically applied by the district court. Rather, it should be determined by a very factually-specific inquiry which takes into account a multitude of factors, some articulable and some more intangible, that are observable in hearing the evidence presented on the injury. Because the district court hears this evidence, it is by far best-suited to assess these myriad factors and determine whether a “significant injury” has occurred. We as the court of appeals, are in a far less advantageous position to make this determination as we have before us only the written record and this record is often inadequate in conveying many of these factors. As a result of our position, our ability to review the district court’s determination of whether a “significant injury” has occurred is quite limited and we will disturb it only when the record reveals that the district court clearly erred. Isaacs, 947 F.2d at 114-15.

Lancaster, 6 F.3d at 210.

As the Fourth Circuit said, whether an injury is “significant” should not be determined by a precise standard, mechanically applied. Instead, the district court is by far best-suited to assess that myriad of factors observable in hearing the evidence presented. We agree, and will not disturb the district court’s determination absent a showing that the district court clearly erred. Here, the district court’s finding that the injury was painful and obvious is easily supported by the facts and was not clearly erroneous.

As to the defendant’s contention that the district court erred in its application of the obstructing of justice guideline, we reject the defendant’s claim. The district court also increased the defendant’s offense level by two pursuant to § 3C1.1 of the Guidelines, entitled “Obstructing or Impeding the Administration of Justice.” Section 3C1.1 reads:

If the Defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentenc[*1129] ing of the instant offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1.

At sentencing the Government argued that the evidence justified an enhancement for obstruction of justice based on either Note 3(b) [1] or Note 3(g) [2] Tr. vol. 5 at 6-7. The court expressed its reliance on the “subornation of perjury” element in this case. The district court remarked at the sentencing hearing:

Well, we are not going to retry the case here this morning. Regarding this testimony — and I now have my trial notes here — Shelby Mitehner Seniours, I believe her name is, said I have told Hamm I am going to testify. I did this in mid April when he and I were at the trailer. And he wanted me to lie for him and say I drove him. And I said no. He kept asking. He wanted me to talk to his lawyer. I said no, and so on.
So without going into other witnesses, that was the testimony given at trial and would permit an adjustment for ... obstruction of justice.,

Tr. vol. 5 at 9.

Shelby Mitehner Seniours testified on behalf of the government. She stated that some time during the middle of April, 1992, Defendant Hamm asked her to testify that she had followed him from the Benchwarmer tavern to the Cosco parking lot to drop off Teresa Western’s car and then drove to other locations with him and Donetta Standafer. Tr. vol. 4 at 367-368. Ms. Seniours testified that she refused to do that, and that Hamm told her if she did he would assist her in obtaining an insurance claim for lost wages by informing the insurance company that she had worked for him as a painter. Id. at 368. According to Seniours, Hamm asked her on two other occasions to testify that she was with him on the morning of the robbery. Id. at 369. Seniours further stated that on one occasion Hamm asked her if she was ready to go to court and told her that things had better go right or that she was in trouble. Id. at 371-372.

The defendant urges this court to hold that the district court’s finding was clearly erroneous by attacking the credibility of the witness, Seniours. He argues that her testimony was directly contradicted by the testimony of another witness and that she was significantly impeached.

Courts have consistently held that for the purpose of determining whether sentencing enhancement for obstructing justice was warranted, a finding of fact will not be disturbed unless there is clear error. Thus, a finding that a criminal defendant’s testimony at a suppression hearing was untrue will not be reversed unless that finding was clearly erroneous. United States v. Barnett, 939 F.2d 405 (7th Cir.1991); see also United States v. Cherif, 943 F.2d 692 (7th Cir.1991) cert. denied, — U.S. -, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992) (Attempting to influence a witness, even though the defendant did not threaten the witness.); United States v. Powell, 973 F.2d 885, 893-94 (10th Cir.1992) ce rt. denied, — U.S. -, 113 S.Ct. 1598, 123 L.Ed.2d 161 (1993) (Unlawfully attempting to influence a co-defendant’s testimony.); United States v. Fozo, 904 F.2d 1166, 1172 (7th Cir.1990); United States v. Miller, 874 F.2d 466, 471 (7th Cir.1989); United States v. Lozoya-Morales, 931 F.2d 1216 (7th Cir.1991).

As the government correctly points out, the government is required to prove sentencing factors under the Guidelines by a preponderance of the evidence. United States v. Rossy, 953 F.2d 321 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 1240, 117 L.Ed.2d 473 (1992). Special deference must be accorded to the lower court’s credibility determinations because “only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Matter of Weber, 892 F.2d 534, 538 (7th Cir.1989) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 575, 105 S.Ct. 1504,[*1130] 1512, 84 L.Ed.2d 518 (1985)). The district court’s determination that the defendant attempted to suborn perjury by Seniours involved a credibility determination as well as an assessment of the facts, and as such the reviewing court should be “especially disinclined to conclude on the basis of a cold record that the court committed clear error.” United States v. Cherry, 938 F.2d 748, 758 (7th Cir.1991) (citations omitted). The district court heard the evidence, observed the demeanor of the witnesses and tested then-credibility. We cannot say that the court’s finding was clearly erroneous. In fact, it is amply supported by the evidence.

We find that the district court’s determination that the defendant attempted to suborn perjury by Seniours is supported by the evidence. In addition, we note that further evidence was presented which would have supported a two-level increase under applications note 3(g) if the court had desired to do so. That evidence would have supported a finding that the defendant provided a materially false statement to a law enforcement officer that significantly impeded the investigation or prosecution of the offense. In view of our decision here, however, no further discussion of this point is necessary.

For the reasons stated, the judgment of the district court is affirmed.

1

. Committing, suborning, or attempting to suborn perjury.

2

. Providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense.