United States v. Guang, et al., Docket Nos. 05-4724-cr(L), 05-6171-cr(CON), 2007 WL 4335556 (2d Cir. Dec. 13, 2007)
Among other things, the district court increased the Guidelines offense level under Section 2B3.2(b)(4), which provides for an increase in offense level if any victim sustained bodily injury, according to the seriousness of the injury. In Guang, the court increased the Guidelines offense level by 6 offense levels based on the injury to the victim's eyes during the course of the commission of the offense. The district court's enhancement, however, was based solely on testimony that "something went into [the victim's] eyes that hurt tremendously" and the following:
Q: Mr. Zhang, did the beating that you received that evening affect your eyesight?
A: Yes. Whomeve knows me knew that I liked to read newspaper a lot in the past. After that occasion, it's difficult for me to read newspapers. And so from that point on, I don't even buy newspapers and I don't even read newspapers.
Q: Why is it difficult for you to read newspapers now?
A: If I spend more time in reading, you know, it hurts my eyes.
The Second Circuit concluded that that there "is no question that Zhang suffered substantial impairment of his eyesight at the time of the assault" and that "Zhang has difficult reading may constitute an impairment." But it found that that there was "insufficient record evidence to warrant a finding that the assault resulted in substantial impairment that was likely to be permanent," as is required for a 6 level enhancement under the Guidelines. The Second Circuit therefore remanded "for consideration of the nature, severity and likely duration of Zhang's impaired eyesight."