United States v. Reyes, Docket No. 06-3699-cr (2d Cir. Feb. 19, 2009) (found here)
Reyes pled guilty to one count of assault resulting in serious bodily injury in aid of a racketeering activity, in violation of 18 U.S.C. § 1959(a)(3). At sentencing, the district court determined the advisory Guidelines range was 92 to 155 months based in part based on a 6 level enhancement pursuant to U.S.S.G. § 2A2.3(b)(3)(C) for permanent or life-threatening injury. The district court also departed upward pursuant to U.S.S.G. § 5K2.2 based on the seriousness of that injury, which was apparently pretty darned serious. Reyes was therefore sentenced to 180 months imprisonment.
On appeal, Reyes contended that the district court's upward departure amounted to impermissible double counting, and that his sentence was therefore unreasonable. The Second Circuit rejected the argument. It found that Reyes had not identified any passage in either the Guidelines or a statute that reflects a legislative intent to preclude application of both Sections 2A2.2(b)(3)(C) and 5K2.2 of the Guidelines. Moreover, the Second Circuit found that although both sections address severe injuries, "they are not identical" and can apply in different circumstances. Thus, the Second Circuit found that "[a]fter Booker, assuming the sentence is not based on a misunderstanding of the Guidelines, we will vacate a sentence only if it is unreasonable. In this case, the District Court correctly understood the Guidelines, and the sentence is not unreasonable."