                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4912


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHARLIE WAYNE BRYANT,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11−cr−00072−MOC−1)


Argued:   October 29, 2013               Decided:   January 14, 2014


Before KEENAN, WYNN, and THACKER, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
opinion.   Judge Wynn wrote the opinion, in which Judge Keenan
and Judge Thacker joined.


ARGUED: Cindy Helene Popkin-Bradley, CINDY H. POPKIN-BRADLEY
ATTORNEY AT LAW, Raleigh, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.      ON BRIEF: Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

        Defendant Charlie Wayne Bryant pled guilty to assault on a

federal    officer         or    employee,       in    violation    of     18   U.S.C.    §

111(a)(1) and (b).              The charge arose from an altercation between

Defendant       and    a     security      officer       at   the    Social      Security

Administration         (“SSA”)      building      in    Gastonia,    North      Carolina.

After denying Bryant’s motion to withdraw his guilty plea, the

district       court    applied         United    States      Sentencing        Guidelines

(“U.S.S.G.”)      §    2A2.2      and     sentenced     Defendant     to    a    130-month

sentence, which was within the Guidelines range.

     On appeal, Defendant challenges both the validity of his

guilty plea and his sentence.                 First, Defendant argues that the

district court abused its discretion by denying his motion to

withdraw his guilty plea, which he contends lacked a factual

basis    and    was    not      knowing    and    voluntary.        Second,     Defendant

argues that the district court used the incorrect Guidelines

provision to calculate his sentence.                     For the reasons discussed

below,    we    affirm       Defendant’s      guilty     plea.       However,      we    are

unable to conclude that the district court applied the proper

sentencing guideline.              We therefore vacate Defendant’s sentence

and remand for resentencing.




                                              2
                                            I.

                                            A.

     In     February       2011,    Defendant        was     a    forty-five-year-old

homeless    man     with    a    long    criminal     record      and    a    history    of

chronic mental illness.             Late on February 7, 2011, or early on

February 8, 2011, Defendant had the Gaston Emergency Medical

Services take him to King’s Mountain Hospital in Gaston County,

North Carolina.        He told the examining physician that he felt

like he was “becoming bipolar” and that he had not been able to

obtain an appointment with his regular doctor.                          J.A. 279.       The

examining     physician         diagnosed        Defendant       with    “Anxiety”      and

concluded     that     Defendant         was      “appropriate          for    outpatient

management.”      The hospital discharged Defendant at 4:13 a.m.

     Later that day, Defendant made his way to the SSA office to

inquire     about    his        Social   Security      benefits.              The   claims

representative who assisted Defendant said that Defendant was

“constantly talking” but making “mostly irrelevant” statements

that “did not make much sense.”                  J.A. 270.       At times, Defendant

became loud and disruptive, which prompted the security officer,

Edward Seigle, to approach Defendant and ask him to lower his

voice.     Eventually, Defendant found himself “in a scuffle” with

Seigle.    J.A. 157.

    Although the eyewitnesses disagree over exactly how this

“scuffle” started, the witnesses agree that Defendant and Seigle

                                            3
ended     up   on     the     floor   of    the       public        restroom     with    Seigle

struggling to control Defendant, who was thrashing wildly.                                      It

was not until two additional SSA employees, Brandon Vallier and

Hubert    Davidson,         intervened      that       the    three       men   were    able    to

subdue and handcuff Defendant.                   A short time later, the Gastonia

Police Department arrived and took custody of Defendant.                                  While

the police were removing him from the SSA office, Defendant said

to   Seigle,     “I        will   catch    you       on     the    street.”       During       the

struggle Seigle sustained a cut on his lip that required one

stitch.

                                             B.

       On December 8, 2011, Defendant pled guilty without a plea

agreement to a one-count indictment charging him with violation

of   18   U.S.C.       §    111(a)(1)      and       (b).         The   indictment      read    as

follows:

                     Charlie   Wayne  Bryant  did  forcibly
               assault, resist, oppose, impede, intimidate,
               and interfere with [Seigle] while [Seigle]
               was engaged in, and on account of the
               performance of [Seigle’s] official duties,
               and in the commission of the offense, did
               make physical contact with the victim, . . .
               inflicting bodily injury, in violation of
               Title    18,  United  States  Code,  Section
               111(a)(1) and (b).

J.A.    10.      The       government     explained          that       the   “charge    is    one

violation of Title 18, United States Code, Section 111(a)(1) and

(b)” and that “(b), Your Honor, is an alleged enhancement that


                                                 4
the defendant inflicted bodily injury on to the victim.”                                    J.A.

14.    During      the     plea      colloquy,          the    magistrate         judge    asked

Defendant    a    series       of    questions,         including       whether     Defendant

understood       that    the    maximum       penalty,         if   convicted,        was    “20

years’ imprisonment and/or a $250,000 fine.”                                 J.A. 14.        The

magistrate judge also asked Defendant the following questions:

                  Do you understand that the district
            judge will not be able to determine the
            applicable sentencing guideline range until
            after your presentence report has been
            prepared and you’ve had an opportunity to
            comment on it?
                  . . . .
                  Do you also understand that in some
            circumstances you may receive a sentence
            that’s different, that is, either higher or
            lower    than   that  called   for  by   the
            guidelines?
                  . . . .
                  Do you understand that if the sentence
            is more severe than you expected or the
            court does not accept the government’s
            sentencing recommendation, you’ll still be
            bound by your plea and you’ll have no right
            to withdraw it?

J.A. 15.     Defendant answered “Yes, sir” to all of the questions.

The   magistrate        judge       accepted       Defendant’s         guilty      plea    after

finding that the plea was knowingly and voluntarily made.

      Several      months       later,    Defendant            moved    to    withdraw       his

guilty plea on the grounds that (1) the plea was not knowing and

voluntary    because        the      district          court    failed       to   consider     a

competency       report        and    order        a     competency       hearing         before

accepting the plea; and (2) Defendant was legally innocent due

                                               5
to insanity.         The district court found that a formal hearing was

not required because a competency report had found Defendant

competent to stand trial.                     The district court also found that

Defendant had no meritorious defenses, an issue fully addressed

at the plea hearing.                    Accordingly, the district court denied

Defendant’s motion to withdraw his guilty plea.

       Before        sentencing,            the     probation           office         prepared     a

presentence investigation report (“PSR”) that computed a total

offense level of 28, a criminal history category of VI, and a

Guidelines         range     of    140–175        months’       imprisonment.               The    PSR

described the charged offense as a violation of 18 U.S.C. §

111(a)(1)      and     (b)    “by       Use   of       a    Deadly    Weapon.”          J.A.      238.

Defendant’s base offense level of 14 was derived by applying

U.S.S.G. § 2A2.2.             Under the enhancements in U.S.S.G. § 2A2.2,

the PSR added 3 levels for the threatened use of the officer’s

firearm,       3    levels        for    bodily        injury,       and    2     levels     for    a

conviction under 18 U.S.C. § 111(b).                                 The PSR also added 6

levels     under       U.S.S.G.         §     3A1.2         because     the      victim      was    a

government officer and because the offense of conviction was

motivated by the victim’s status.

       Defendant objected to several aspects of the PSR and argued

that   U.S.S.G.        §     2A2.3       should        apply,     along         with    a   2-level

enhancement for causing bodily injury.                           He argued that he should

receive    a       2-level    decrease        for          acceptance      of    responsibility,

                                                   6
resulting    in      a   total     offense           level   of    7.        Defendant    also

objected to certain factual characterizations in the PSR, the

most important of which was his argument that he never touched

or controlled Seigle’s firearm.                        The government responded by

arguing   that       Defendant       was    not       entitled      to   a    reduction      for

acceptance      of    responsibility            and    by    noting      that      Defendant’s

suggested alternate Guideline (U.S.S.G. § 2A2.3) does not apply

to the charged violation of 18 U.S.C. § 111(a)(1) and (b).                                   The

government stated that “[t]he proper guideline is § 2A2.2, as

applied in the draft PSR[,]” but did not point out U.S.S.G. §

2A2.4 as an alternate.             J.A. 231.

     On   October        26,      2012,    the       district      court      conducted      the

sentencing      hearing        and    received          testimony        from       Defendant,

Seigle,   and     four      SSA    employees          who    witnessed       the    events    at

issue.      Defendant       testified           that    he   merely      touched      Seigle’s

firearm holster in an attempt “to scare him to get off of me.”

J.A. 158.       But this testimony conflicted with the testimony of

Davidson, Vallier, and Seigle, who all testified that Defendant

attempted    to      gain   control        of    Seigle’s         firearm.         Defendant’s

testimony also differed from the testimony of Special Agent Eric

Long, who had interviewed Defendant on behalf of the Federal

Protective Service on February 11, 2011.

     In his testimony, Long recounted how Defendant told him and

another agent that he was, in fact, reaching for Seigle’s weapon

                                                 7
while they were fighting.                   According to Long, Defendant stated

during the interview that “I was trying to grab his Glock” and

that “[m]y intentions were to kill him because he was beating

me.”       J.A. 147.     Defendant testified that he never said this to

Long, and in any event in his “Motion for Reasons of Appeal,”

Defendant        explained       that       little      weight       should       be   given    to

anything he might have said during that interview because he was

off his medicine and his “mind was racing manic” at the time.

J.A. 202.

       After      the    conclusion          of       the   testimony,           and   following

arguments from both sides regarding Defendant’s acceptance of

responsibility          and    the    applicability             of   Section       111(b),      the

district court granted a two-level reduction for acceptance of

responsibility,          found       that     Guideline         level      26     applied,      and

sentenced        Defendant       to     a    within-guideline              sentence       of    130

months.          The    district        court         did   not      explicitly          rule   on

Defendant’s objections to the PSR but stated that “all of the

findings in the Presentence Report are accepted by the Court

with       the   exception      of    taking      away      .   .    .    the    acceptance      of

responsibility.”              J.A. 167.        The district court discussed the

appropriateness of the 130-month sentence, explaining that even

if     a    higher     guideline       had     applied,         it       would    have    granted

Defendant a downward variance to impose a 130-month sentence.



                                                  8
        The    district      court     made       several      statements          that    are    in

tension       with     its    adoption        of      the     PSR’s     findings          and    its

application of U.S.S.G. § 2A2.2.                        During a conversation before

Defendant was present in the courtroom, the government stated

that Section 111(b) was applicable “on the theory that [Seigle]

did receive a bodily injury.”                         J.A. 72.         The district court

responded      that     “I    don’t       know    that       that’s    an    assault[,]”         and

later noted that “this is a huge sentence that this guy gets for

a   busted     lip.”         J.A.    73–74.           Following       the    receipt       of    the

testimony,       the    district          court       also    stated        that    “there’s       a

factual basis to show that the defendant did forcibly assault[,]

impede, intimidate[,] and interfere with the officer while he

was carrying out his duty, and there was some bodily injury,

although not much, . . . .”                  J.A. 164.         The district court later

noted that the offense took place “with no weapon involved by

the     defendant.”           J.A.        168.        Defendant        argues       that        these

statements       undermine          the     district         court’s        adoption      of     the

findings in the PSR, and thus, the applicability of U.S.S.G. §

2A2.2.        Defendant asserts that the facts found by the district

court    are    insufficient          to    support         either    basis        for    applying

Section       2A2.2:     serious          bodily      injury     or     involvement         of     a

dangerous weapon.            Defendant further argues that he should have

been sentenced under U.S.S.G. § 2A2.4.



                                                  9
                                            II.

       With his first argument on appeal, Defendant contends that

the district court erred in denying his motion to withdraw his

guilty plea.           Defendant argues that his plea was not knowingly

and voluntarily entered and lacks a factual basis.                          We disagree.

                                             A.

       We review the denial of a motion to withdraw a guilty plea

for abuse of discretion.                  United States v. Ubakanma, 215 F.3d

421, 424 (4th Cir. 2000).                 Rule 11(d) of the Federal Rules of

Criminal        Procedure     affords      defendants       no    absolute        right   to

withdraw an accepted guilty plea.                    See United States v. Moore,

931    F.2d     245,    248    (4th   Cir.       1991).      “If     an     appropriately

conducted Rule 11 proceeding is to serve a meaningful function,

on    which     the    criminal     justice       system    can     rely,    it    must   be

recognized to raise a strong presumption that the plea is final

and binding.”           United States v. Lambley, 974 F.2d 1389, 1394

(4th Cir. 1992).              After the court has accepted the plea and

before the court has imposed a sentence, “the defendant has the

burden     of    showing      a    fair    and    just     reason    for     withdrawal.”

Ubakanma, 215 F.3d at 424; Fed. R. Crim. P. 11(d).

       A   fair       and   just     reason       “‘essentially       challenges’         the

fairness” of the Rule 11 proceedings.                     Ubakanma, 215 F.3d at 424

(quoting United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.

1995)).       To assist in this determination of fairness, the Fourth

                                             10
Circuit     has    developed     a    nonexclusive           list     of     factors    to

consider:

            (1)   whether   the   defendant   has   offered
            credible evidence that his plea was not
            knowing or not voluntary, (2) whether the
            defendant has credibly asserted his legal
            innocence, (3) whether there has been a
            delay between the entering of the plea and
            the filing of the motion, (4) whether
            defendant   has   had   close   assistance   of
            competent counsel, (5) whether withdrawal
            will cause prejudice to the government, and
            (6) whether it will inconvenience the court
            and waste judicial resources.

Moore, 931 F.2d at 248.              “The most important consideration in

resolving a motion to withdraw a guilty plea is an evaluation of

the Rule 11 colloquy at which the guilty plea was accepted.”

United States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003).                            We

analyze   “the     sufficiency       of   the    colloquy      under       the    harmless

error standard.”         United States v. Nicholson, 676 F.3d 376, 382

(4th Cir. 2012).

       Under Rule 11(b)(1), the defendant must be addressed in

open   court      and   be    informed     of    many       things,    including       the

following: the nature of the charge; any potential penalties,

including      mandatory       minimum      and       maximum         sentences;       the

applicability of the Sentencing Guidelines, including potential

departures     from     the   Guidelines        and   the    18     U.S.C.    §    3553(a)

sentencing factors; the court’s obligation to impose a special

assessment; the defendant’s right to an attorney; his right to


                                          11
plead not guilty and be tried by a jury with the assistance of

counsel; his right to confront and cross-examine witnesses; his

right    against    self-incrimination;            and    his     right    to     testify,

present evidence, and compel the attendance of witnesses.                                 He

must also be informed that a guilty plea waives any further

trial and that his answers at the proceeding may be used against

him in a prosecution for perjury.                    Rule 11(b)(2) requires the

court to determine that the plea is voluntary, and Rule 11(b)(3)

requires the court to determine the factual basis for the plea.

      The district court may defer its determination that there

is a factual basis until the sentencing hearing.                          United States

v. Martinez, 277 F.3d 517, 522 n.4 (4th Cir. 2002).                              In making

its   determination       that   a    factual       basis    exists,       the    district

court is not limited to the Rule 11 colloquy.                        Rather, the court

“may conclude that a factual basis exists from anything that

appears on the record.”          United States v. DeFusco, 949 F.2d 114,

120     (4th   Cir.     1991).         We        review     the      district      court’s

determination      that      there    was    a    factual     basis       for    abuse   of

discretion.     United States v. Mastrapa, 509 F.3d 652, 660 (4th

Cir. 2007).

                                            B.

      In this case, Defendant first argues that his guilty plea

was not knowing and voluntary because the “District Court did

not   inquire      as   to    [the]    mental       health      of    a   mentally       ill

                                            12
defendant.”       Appellant’s Br. at 18.              Although it is undisputed

that    Defendant      suffers     from     a    variety    of    mental   illnesses,

nothing    in    the     record    indicates       that    his    illnesses   had   any

impact on his competence or his ability to understand the nature

of the proceedings against him.                  The magistrate judge conducted

a plea hearing that covered all aspects required by Rule 11.                         In

response    to     the     magistrate       judge’s       question    about   whether

Defendant was under the influence of alcohol or drugs, defense

counsel    stated      “just    for   the       record,    it    doesn’t   affect   his

ability to understand today’s proceedings, but he does take a

thousand milligrams of Depakote . . . twice a day at the jail.”

J.A. 13.        The magistrate judge then asked, “Is your mind clear

and do you understand that you are here to enter a guilty plea

that    cannot    later    be     withdrawn?”        Defendant       answered,   “Yes,

sir.”    J.A. 13.

       Defendant further argues that he should have received a

competency hearing prior to the acceptance of his guilty plea.

But Defendant does not argue that he was actually incompetent to

stand trial.        In fact, we find Defendant’s own appellate brief

persuasive on this point.             It states, unequivocally, that “Mr.

Bryant is competent to stand trial.”                       Appellant’s Br. at 22.

Rather, Defendant argues that if the court had held a competency

hearing, “the facts of the crime would have certainly come out

and [Defendant] would have been sure about the facts that he

                                            13
faced.”      Appellant’s Br. at 23.             Such an argument fundamentally

misunderstands the purpose of a mental competency determination

under 18 U.S.C. § 4241.           That statute is designed to ensure that

a defendant is able “to understand the nature and consequences

of the proceedings against him [and] to assist properly in his

defense.”       18 U.S.C. § 4241(a).        It is not a fact-finding tool.

      Defendant makes much of the fact that his guilty plea was

accepted before the court reviewed the competency report, which

the district court had ordered.                 Both parties received a copy of

the report in advance of the Rule 11 hearing.                      Neither party

requested       a   competency        hearing.         Most    importantly,      the

psychological evaluation that the district court ordered found

Defendant to be competent to stand trial.                     To the extent that

any error occurred, it was harmless.

                                           C.

      Defendant next argues that his guilty plea lacked a factual

basis.       Defendant’s argument seems to be that Defendant would

not have pled guilty if he had first heard the government’s

version    of    the     facts.      We   reject    this   argument    for   several

reasons.

      First, nothing in the record suggests that Defendant did

not   have      access    to   the   government’s      evidence   in    the   case.

Second, Defendant concedes that during the plea colloquy, the

magistrate judge “did inform” him that the district court “would

                                           14
find a factual basis at a later date.”                  Appellant’s Br. at 24.

Finally, Defendant’s argument regarding the timing of finding a

factual basis is contrary to the settled law in this Circuit.

       According to Fed. R. Crim. P. 11(b)(3), “[b]efore entering

judgment on a guilty plea, the court must determine that there

is a factual basis for the plea.”                    “Because judgment is not

entered until after sentencing, a court may defer the finding of

a factual basis for the plea until that time.”                      Martinez, 277

F.3d   at   522   n.4.      As      discussed    herein,     the   district    court

conducted    a    hearing      at      which    it   received      testimony     from

Defendant and several witnesses to the offense.                      This hearing

and the finding of the factual basis for Defendant’s guilty plea

occurred prior to the district court’s entry of judgment against

Defendant.        As   such,     the    district     court   did   not   abuse   its

discretion in finding a factual basis.



                                         III.

       With his second argument on appeal, Defendant contends that

the district court erred by applying U.S.S.G. § 2A2.2 instead of

U.S.S.G. § 2A2.4.        Defendant specifically argues that no factual

basis exists to support a finding of serious bodily injury or

the involvement of a dangerous or deadly weapon—either of which

would suffice to sentence him under U.S.S.G. § 2A2.2 rather than

under § 2A2.4.         Although the facts of the case might support a

                                          15
finding that a dangerous or deadly weapon was involved, we are

not   persuaded     that   the    district      court    actually      made   such    a

finding.

                                          A.

      “We review a sentence for reasonableness, applying an abuse

of discretion standard.”           United States v. Susi, 674 F.3d 278,

282 (4th Cir. 2012).         We first “ensure that the district court

committed no significant procedural error, such as failing to

calculate     (or   improperly      calculating)        the     Guidelines    range,

treating the Guidelines as mandatory, failing to consider the

Section 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence . . . .”          Gall    v.   United    States,       552    U.S.   38,    51

(2007).     Only after we determine that a sentence is free from

significant     procedural        error    do    we     reach    the    substantive

reasonableness of a sentence.              See id.       This Court “review[s]

the district court’s legal conclusions de novo and its factual

findings for clear error.”              United States v. Horton, 693 F.3d

463, 474 (4th Cir. 2012) (quoting United States v. Layton, 564,

F.3d 330, 334 (4th Cir. 2009).

      Title 18 U.S.C. § 111 makes it a crime to assault, resist,

or impede government officers or employees.                   One who commits the

prohibited acts by use of a “deadly or dangerous weapon,” or who

inflicts bodily injury, faces a statutory maximum penalty of 20

                                          16
years imprisonment.              18 U.S.C. § 111(b).              This Court has held

that    “infliction         of   bodily      injury    or   use    of     a    dangerous      or

deadly weapon as used in § 111(b) are offense elements.”                                United

States v. Campbell, 259 F.3d 293, 298 (4th Cir. 2001).                             Thus, to

trigger       the    enhanced        twenty-year      statutory     maximum       under       18

U.S.C. § 111(b), the government “must charge and prove beyond a

reasonable doubt at least one of the two additional elements

that defines this separate offense, specifically (1) infliction

of bodily injury or (2) use of a dangerous or deadly weapon.”

Id.

       When more than one base offense level could apply to a

particular        offense,       the    sentencing       court    shall       determine    the

guideline range by considering “all acts and omissions committed

. . . during the commission of the offense of conviction [and]

any other information specified in the applicable guideline.”

U.S.S.G. § 1B1.3(a)(1), (4).                    This is often referred to as “the

Relevant       Conduct      Guideline,”         and   it    requires      the    sentencing

court    to       determine      a     defendant’s     offense     level        based    on    a

consideration of relevant conduct.                    See United States v. Hayes,

322    F.3d    792,     802      (4th    Cir.    2003)     (“[W]hile      the    guidelines

preserve      a     broad   range       of   discretion     for    district       courts,      a

court has no discretion to disregard relevant conduct in order

to achieve the sentence it considers appropriate.”).



                                                17
       Defendants       convicted        of   violating         18    U.S.C.     §    111   are

sentenced according to either U.S.S.G. § 2A2.2, which pertains

to aggravated assault and carries a base offense level of 14, or

U.S.S.G.     §     2A2.4,    which      pertains     to    obstructing          or    impeding

officers and carries a base offense level of 10.                              An aggravated

assault is “a felonious assault that involved (A) a dangerous

weapon with intent to cause bodily injury (i.e., not merely to

frighten) with that weapon; (B) serious bodily injury; or (C) an

intent to commit another felony.”                     U.S.S.G. § 2A2.2 cmt. n.1.

The   term       “dangerous      weapon”      includes     a    firearm.         U.S.S.G.    §

1B1.1 cmt. n.1(D).            “Serious bodily injury” is defined as injury

“involving extreme physical pain or the protracted impairment of

a function of a bodily member, organ, or mental faculty; or

requiring medical intervention such as surgery, hospitalization,

or    physical      rehabilitation.”             U.S.S.G.       §     1B1.1    cmt.   n.1(L).

“Bodily      injury,”       on    the   other      hand,    “means       any    significant

injury; e.g., an injury that is painful and obvious, or is of a

type for which medical attention ordinarily would be sought.”

U.S.S.G. § 1B1.1 app n.1(B).

       The       finding    of    a    factual     basis       that    is     sufficient    to

support a plea under 18 U.S.C. § 111(b) can be insufficient to

support      a    sentence       for    aggravated     assault.             Section    111(b)

requires either the use of a dangerous weapon or the infliction

of bodily injury; it does not require serious bodily injury.

                                              18
But the Guidelines make clear that a sentence for aggravated

assault requires the sentencing court to find the “presence of

an aggravating factor” such as “the involvement of a dangerous

weapon”    or   “serious       bodily    injury.”           U.S.S.G.     §   2A2.2      cmt.

background.       Thus, a defendant who pleads guilty to the offense

element    of   bodily    injury       under     18    U.S.C.      §   111(b)     has    not

necessarily       admitted     to     facts     that   would      support     a    finding

during sentencing that he inflicted “serious bodily injury.”                              We

turn now to a discussion of the sentencing hearing.

                                           B.

       In this case, the government charged the additional offense

element of infliction of bodily injury under 18 U.S.C. § 111(b).

The    government    proved      that    element       by   virtue     of    Defendant’s

guilty plea following the properly conducted Rule 11 hearing.

As    discussed    above,      the    sentencing       court      properly    determined

that a factual basis supported the plea of guilty.                              Moreover,

the    sentencing     court          properly       used    the     Relevant      Conduct

Guideline to consider “all acts . . . committed . . . by the

defendant” during the course of the altercation with Seigle.

U.S.S.G. § 1B1.3(a)(1)(A).

       However, two aspects of this case give us pause and leave

us in doubt as to whether the district court intended to apply

U.S.S.G.    §     2A2.2   or    U.S.S.G.        §    2A2.4.        First,    the     PSR’s

description of the charged offense differed from the indictment

                                           19
to which Defendant pled guilty in an important respect:                                              The

indictment          contained       no    reference         to    the     use    of    a       weapon,

whereas the PSR lists the “Charge and Conviction” as assault “by

Use of a Deadly Weapon.”                  J.A. 238, 241.            Put simply, Defendant

did not plead guilty to using a deadly weapon.

       The government charged and proved only the bodily injury

element of Section 111(b). 1                  But by mischaracterizing Defendant’s

conviction         as     assault       “by   Use     of    a    Deadly       Weapon,”         the   PSR

changed       the        element    of    Section          111(b)    that       the    government

proved.       See Campbell, 259 F.3d at 300 (“[B]odily injury and use

of a dangerous weapon in § 111(b) are offense elements . . .

.”).        To     be    sure,     by    pleading      guilty       to    the    bodily         injury

element, Defendant put himself at risk of receiving the maximum

sentence of a 20-year prison term, a contingency of which he was

made       aware    during       his     Rule    11    hearing.           Thus,       even      though

Defendant          was    not    charged        and   convicted          of    using       a    deadly

weapon,       the       sentencing       court      could       nonetheless       find         that   a

dangerous weapon was involved in the offense of conviction and

impose an appropriate sentence. 2                      In fact, the sentencing court


       1
       At the Rule 11 hearing, the government explained that §
111(b) applied because “the defendant inflicted bodily injury on
to [sic] the victim.” J.A. 14.
       2
       A finding that Defendant inflicted serious bodily injury
would also suffice to sentence Defendant under U.S.S.G. § 2A2.2.
It seems clear from the record, however, that the government
(Continued)
                                                 20
is   obligated    to    consider    relevant    conduct        “to    achieve    the

sentence it considers appropriate.”              Hayes, 322 F.3d at 802.

This brings us to our second concern.

     Although     the    district    court     stated    that        “all   of   the

findings in the Presentence Report are accepted,” J.A. 167, the

court    made   other   statements    that     belie    this    finding. 3       For

example, when the district court summarized the factual basis

for the guilty plea, it stated that “there’s a factual basis to

show that [Defendant] did forcibly assault[,] impede, intimidate

and interfere with the officer while he was carrying out his



never argued that Seigle’s cut lip, which required a single
stitch, was a serious bodily injury. Additionally, the district
court noted that “there was some bodily injury, although not
much.”    J.A. 164.      Therefore, we are unable to sustain
Defendant’s sentence under the alternate ground of serious
bodily injury in U.S.S.G. § 2A2.2.
     3
       We note that Defendant filed two memoranda that raised
sentencing issues.   The first was titled “Defendant’s Objection
to Presentence Report,” and it was filed on August 16, 2012.
J.A. 222–25.     The second was titled “Defendant’s Position
Concerning Sentencing,” and it was filed on October 25, 2012,
the day before the sentencing hearing.      J.A. 260–264.    The
record contains no indication that the district court explicitly
addressed either of these memoranda or ruled on the parts of the
PSR that remained in dispute. See Fed. R. Crim. P. 32(i)(3)(B)
(“[F]or any disputed portion of the presentence report . . .
[the court must] rule on the dispute or determine that a ruling
is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in
sentencing[.]”). For the reasons stated below, we are unable to
conclude that the district court implicitly ruled on those
objections to the PSR that remained at the time of Defendant’s
sentencing.



                                      21
duty, and there was some bodily injury, although not much[.]”

J.A. 164.          Standing alone, this would be unremarkable because

the    district          court     was     merely       reciting      the       terms    of     the

indictment to which Defendant pled guilty.                                But, the district

court later noted that the offense took place “with no weapon

involved      by     the      defendant.”               J.A.   168.         This        statement

undermines         the    district         court’s       acceptance       of     “all    of     the

findings” in the PSR, in particular, those findings that pertain

to    the   involvement          of    a   dangerous       weapon.         If    no     dangerous

weapon was involved, U.S.S.G. § 2A2.2 cannot apply.

       This    is    not      to   say     that    the     district       court       must    apply

U.S.S.G. § 2A2.4.                To the contrary, the district court heard

facts that might support its application of U.S.S.G. § 2A2.2 via

the Relevant Conduct Guideline, U.S.S.G. § 1B1.3.                                 For example,

Seigle, Davidson, and Vallier all testified that Defendant was

grabbing for Seigle’s gun.                   Defendant himself admitted that he

was attempting to scare Seigle by touching his holster.                                         And

Special Agent Long testified that Defendant told him that he was

attempting to grab Seigle’s “glock” and that if he had been

successful, he would have killed Seigle.

       We choose not to speculate what the district court might

have    intended         in   this     case.           Defendant’s    sentence          would    be

vastly reduced if no weapon was involved and U.S.S.G. § 2A2.4,

rather      than    U.S.S.G.       §     2A2.2,    applies.          We    therefore         vacate

                                                  22
Defendant’s   sentence    and   remand     to    the   district    court    for

additional factual findings and resentencing.             At a minimum, the

PSR must be revised to incorporate the correct conviction.



                                     IV.

     For the foregoing reasons, we affirm the judgment of the

district   court   as    to   the   denial      of   Defendant’s   motion    to

withdraw his guilty plea.       We vacate and remand for resentencing

consistent with this opinion.

                                                        AFFIRMED IN PART;
                                             VACATED AND REMANDED IN PART




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