                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5244


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MATTHEW STEPHEN WATTY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:08-cr-00012-LHT-DLH-5)


Submitted:   May 24, 2010                 Decided:   June 16, 2010


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Fredilyn Sison, Matthew
R. Segal, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Asheville, North Carolina, for Appellant.       Edward R. Ryan,
Acting United States Attorney, Charlotte, North Carolina, Don D.
Gast,  Assistant   United  States   Attorney,  Asheville,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               After       a     jury        trial,      Matthew          Stephen       Watty       was

convicted of one count of assault resulting in serious bodily

injury and aiding and abetting such assault, in violation of 18

U.S.C. §§ 113(a)(6), 1153, 2 (2006).                                Watty claims on appeal

that the district court abused its discretion in denying his

motion       that    the       jury    be     instructed         on    the       lesser       included

offense of assault by striking, beating, or wounding.                                     18 U.S.C.

§ 113(a)(4).         Finding no error, we affirm.

               We “review a district court’s decision whether to give

a     jury    instruction         for       abuse       of    discretion.”              See     United

States v.       Kennedy,         372    F.3d     686,         698     (4th       Cir.   2004).        A

defendant      is    not       automatically            entitled       to    a     lesser-included

offense      instruction.              See    United         States    v.     Wright,        131   F.3d

1111, 1112 (4th Cir. 1997).                    Rather, the trial court should give

the     instruction        only        if     “the       proof       of      the    element        that

differentiates         the      two     offenses        [is]        sufficiently        in     dispute

that the jury could rationally find the defendant guilty of the

lesser offense but not guilty of the greater offense.”                                              Id.

(internal quotation marks omitted).

               The   elements          necessary         for    a     conviction        on     assault

resulting in bodily injury are “(1) an intentional assault that

(2) results in serious bodily injury, committed (3) by an Indian

and (4) within Indian Country.”                          United States v. Littlewind,

                                                    2
595    F.3d   876,       884   (8th    Cir.    2010)       (internal       quotation    marks

omitted).       A serious injury is one that involves a substantial

risk of death, extreme physical pain, protracted and obvious

disfigurement or protracted loss or impairment of the function

of    a   bodily        member,      organ    or     mental       faculty.      18     U.S.C.

§ 113(b)(2); 18 U.S.C. § 1365(h)(3) (2006).

              Simple assault is a lesser included offense of assault

causing serious bodily injury.                     The differentiating element is

that one requires a specific degree of injury.                             In either case,

assault is a general intent crime.                        A specific intent to cause

harm is not necessary.                See United States v. Calbat, 266 F.3d

358, 363 (5th Cir. 2001).                    All that is required is that the

defendant assaulted the victim and, in the case of 18 U.S.C.

§ 113(a)(6),        evidence         that    the     assault       resulted     in    serious

bodily injury.             United States v. Davis, 237 F.3d 942, 944-45

(8th Cir. 2001); United States v. Benally, 146 F.3d 1232, 1237-

38    (10th   Cir.       1998).       Aiding       and    abetting       requires    evidence

showing       the       defendant      had     the       intent     to     facilitate    the

commission of the offense, in this case, assault.                               See United

States v. Burgos, 94 F.3d 849, 873-74 (4th Cir. 1996).

              We        find   the     district          court    did     not   abuse     its

discretion         in     denying     the     motion       for     the     lesser-included

instruction of simple assault.                     The element that differentiates

the two offenses was not sufficiently in dispute and, at the

                                               3
very least, Watty was culpable as an aider and abettor to the

attack, which resulted in the victim receiving serious bodily

injuries.    See United States v. Felix, 996 F.2d 203 (8th Cir.

1993).   We find the cases Watty cites for the proposition that

he was engaged in a separate and unique assault to be clearly

distinguishable.       We also find Watty’s argument concerning the

use of the rule of lenity in this context to be without merit.

            Accordingly,      we   affirm   the   conviction   and   sentence.

We   dispense   with   oral    argument     because   the   facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                      AFFIRMED




                                       4
