                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-3996
                                     ___________

United States of America,                  *
                                           *
                    Appellee,              *   Appeal from the United States
                                           *   District Court for the District
      v.                                   *   of South Dakota.
                                           *
Harold Brown Bear, Jr.,                    *        [UNPUBLISHED]
                                           *
                    Appellant.
                                     ___________

                                Submitted: May 17, 2001

                                    Filed: May 24, 2001
                                     ___________

Before LOKEN, ROSS, and FAGG, Circuit Judges.
                            ___________

PER CURIAM.

       The Government charged Harold Brown Bear, Jr. "unlawfully did forcibly
assault, resist, oppose, intimidate and interfere with . . . a law enforcement officer
employed by Oglala Lakota Nation Department of Public Safety . . . while [the officer]
was engaged in the performance of his official duties, in violation of 18 U.S.C. § 111."
According to § 111, when the statute's violation constitutes only simple assault, the
violator may be imprisoned not more than one year, but when the violation constitutes
more than simple assault, the violator may be sentenced to three years in prison. A jury
convicted Brown Bear, and the district court* sentenced him to two years in prison. On
appeal, Brown Bear argues the statutory maximum sentence was one year because
neither the jury instructions nor the verdict form indicated which specific facts the jury
found, and thus his two-year sentence violates Apprendi v. New Jersey, 530 U.S. 466
(2000) (other than fact of earlier conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt).

       Assuming Apprendi applies to Brown Bear's situation, we conclude any error in
failing to require a jury finding that Brown Bear committed more than simple assault
was harmless. See United States v. Anderson, 236 F.3d 427, 429 (8th Cir. 2001)
(applying harmless error analysis to Apprendi violation). In this case, there was no
evidence from which a rational jury could find Brown Bear committed only simple
assault. See id. The officer testified that Brown Bear threatened to kill him, rushed at
him, grabbed him by the neck with both hands, and choked him. The district court
observed there was no evidence contradicting the officer's testimony and the "evidence
would not support an instruction on simple assault because these facts constitute more
than simple assault."

      Because any Apprendi error was harmless, we affirm the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



      *
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

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