
    UNITED STATES of America, Plaintiff—Appellee, v. Jerry Lee MORGAN, Defendant—Appellant.
    No. 01-10550.
    D.C. No. CR-99-00001-ECR.
    United States Court of Appeals, Ninth Circuit.
    Submitted March 8, 2002 .
    Decided April 29, 2002.
    Before GOODWIN, GRABER, and PAEZ, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

In a published opinion, we affirmed Defendant Jerry Lee Morgan’s convictions but, on the government’s cross-appeal, reversed and remanded for resentencing. United States v. Morgan, 238 F.3d 1180 (9th Cir.), cert. denied, — U.S. -, 122 S.Ct. 146, 151 L.Ed.2d 97 (2001). This second appeal follows the resentencing.

Defendant argues that the district court erred as a matter of law when it interpreted and applied U.S.S.G. § 2B3.1 (2000).

Defendant was convicted of both kidnapping and carjacking. The guideline for kidnapping is § 2A4.1; the guideline for carjacking is § 2B3.1. The carjacking guideline determines Defendant’s offense level because that guideline (a) includes an adjustment for kidnapping and (b) recommends a higher offense level than the kidnapping guideline. See U.S.S.G. § 2A4.1(b)(7)(A).

As we explained in our earlier opinion, if the victim of a carjacking sustains bodily injury that is “permanent or life-threatening,” a six-level increase in the offense level is warranted. Morgan, 238 F.3d at 1187; U.S.S.G. § 2B3.1(b)(3)(C). Defendant argues that application note 5 to U.S.S.G. § 1B1.3 precludes the use of the six-level increase. However, application note 5 pertains only to “a risk or danger of harm,” as distinct from “harm sustained.” U.S.S.G. § 1B1.3, cmt. n. 5. Here, actual harm was sustained, so application note 5 has no bearing on an assessment of the extent of the actual harm. When a person has suffered actual harm so great that it presents “a substantial risk of death,” U.S.S.G. § 1B1.1, cmt. n. 1(h), that is not a mere “risk or danger of harm,” U.S.S.G. § 1B1.3, cmt. n. 5; rather, it is actual severe harm.

To the extent that Defendant argues that the district court’s factual findings are clearly erroneous, we likewise are unpersuaded. The evidence supports the finding that Defendant’s maltreatment of the victim involved a substantial risk of death.

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
     
      
      . We refer throughout to the version in effect on November 1, 2000.
     