                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                   No. 09-30013
                Plaintiff-Appellee,            D.C. No.
               v.                          3:06-CR-00085-
MICHAEL DION ANCHRUM,                            TMB
             Defendant-Appellant.
                                               ORDER


                   Filed February 10, 2010

      Before: Robert R. Beezer, Ronald M. Gould, and
            Richard C. Tallman, Circuit Judges.

                           Order;
                  Dissent by Judge Beezer


                           ORDER

   Judges Gould and Tallman have voted to deny Appellant’s
petition for rehearing. Judge Beezer votes to grant the petition
for rehearing.

  The petition for rehearing is DENIED.



BEEZER, Circuit Judge, dissenting:

   I would grant Anchrum’s petition for rehearing as to Count
3, Interference with a Federal Officer by Means of a Deadly
or Dangerous Weapon, 18 U.S.C. § 111.

                             2415
2416                    UNITED STATES v. ANCHRUM
   Anchrum was convicted on Count 3 with an erroneous jury
instruction. The district court correctly stated the first two ele-
ments: (1) interference with a federal officer (2) while the
officer was engaged in official duties.1 For the third element,
however, the district court stated, “Third, the defendant used
a motor vehicle” instead of “Third, the defendant used a dan-
gerous or deadly weapon.” The third element in § 111 is cru-
cial because the first two elements alone constitute an
independent crime. See § 111(a). The addition of the third ele-
ment enhances the penalty from an eight-year to a 20-year
statutory maximum. § 111(b).

   The erroneous instruction allowed the jury to convict
Anchrum by finding only that Anchrum interfered or
assaulted Agent Gamache with his vehicle. Anchrum essen-
tially conceded that he assaulted a federal officer with a vehi-
cle but forcefully argued that he did not use the vehicle as a
deadly or dangerous weapon in doing so.

   At trial, Anchrum conceded that after a vehicle pursuit,
Officer Gamache angled his police car to block Anchrum’s
vehicle in a dead-end side street. But Anchrum pointed to
Officer Gamache’s testimony that Anchrum “was able to
squeeze around the front of my vehicle,” “scraping [the] right
front of my vehicle” and causing a “scrape mark” on the right
bumper and damaging the headlight and turn signal assembly.
Anchrum argued before the jury that these actions did not
constitute using his vehicle as a dangerous or deadly weapon,
and he objected to the district court’s erroneous jury instruc-
tion.
  1
   The district court instructed the jury:
      First, the defendant intentionally used force in assaulting, resist-
      ing, intimidating or interfering with Task Force Officer Gam-
      ache; Second, the defendant did so while Officer Gamache was
      engaged in official duties; Third, the defendant used a motor
      vehicle. A motor vehicle is a dangerous or deadly weapon if it is
      used in a way that is capable of causing death or serious bodily
      injury.
                      UNITED STATES v. ANCHRUM                         2417
   Our opinion admits that the jury instruction was constitu-
tionally erroneous but concludes the error was harmless. I
believe the evidence in the record shows that this error was
not harmless beyond a reasonable doubt.

   Although constitutional error does not require automatic
reversal, the standard for constitutional harmless error is high.
See Chapman v. California, 386 U.S. 18, 22 (1967) (“[T]here
may be some constitutional errors which in . . . a particular
case are so unimportant and insignificant that they may, con-
sistent with the Federal Constitution, be deemed harmless, not
requiring the automatic reversal of the conviction.” (emphasis
added)). It must be “clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the
error.” United States v. Gracidas-Ulibarry, 231 F.3d 1188,
1197 (9th Cir. 2000).

   Our only case to discuss a similar erroneous instruction
found the constitutional error harmless because the defendant
used a knife, which by definition is a “deadly or dangerous
weapon.” See United States v. Smith, 561 F.3d 934, 939 (9th
Cir. 2009) (en banc).2 Because a motor vehicle is not an inher-
ently dangerous weapon, cf. United States v. Aceves-Rosales,
832 F.2d 1155, 1157 (9th Cir. 1987), the prosecution had to
prove that Anchrum used his vehicle in a way capable of
causing death or serious bodily injury. See id. “Serious bodily
injury” is “harm that involves ‘(A) a substantial risk of death;
(B) extreme physical pain; (C) protracted and obvious disfig-
urement; or (D) protracted loss or impairment of the function
of a bodily member, organ, or mental faculty.’ ” Id.
   2
     We decided on the alternate ground that the knife was also used in a
manner capable of causing serious bodily injury because the victim sus-
tained “very extensive injur[ies]” and “nearly lost an eye.” See Smith, 561
F.3d at 939-40. The loss of an eye fulfills the definition of “serious bodily
injury.” See 18 U.S.C. § 1365(h)(3) (“serious bodily injury” includes “pro-
tracted loss or impairment of the function of a bodily member, organ, or
mental faculty”). Here, Officer Gamache was not injured.
2418              UNITED STATES v. ANCHRUM
   The court’s opinion concludes that any rational jury would
have found that Anchrum used his vehicle in a way capable
of causing serious bodily injury because “[t]here is no doubt
that when Anchrum . . . actually crashed into Officer Gam-
ache’s car he was endangering [Gamache’s life] as well as
using his vehicle in a way that could inflict great bodily
harm.” United States v. Anchrum, No. 09-30013, slip op. at
16860 (9th Cir. Dec. 30, 2009). Yet this factual finding usurps
the province of the jury by adopting the United States’s ver-
sion of the facts. We should not view the evidence in the light
most favorable to the prosecution as we would if the instruc-
tion had been correct. See Aceves-Rosales, 832 F.2d at 1157.
When we review a constitutional error for harmlessness, we
are to “conduct a thorough examination of the record” to
determine “whether it appears ‘beyond a reasonable doubt
that the error complained of did not contribute to the ver-
dict.’ ” Neder v. United States, 527 U.S. 1, 15, 19 (emphasis
added).

   A rational jury could convict or acquit Anchrum on Count
3. “It is indisputable that an automobile . . . can be used as
a deadly weapon.” Aceves-Rosales, 832 F.2d at 1157 (empha-
ses added). But a rational jury could also acquit Anchrum by
concluding that “squeez[ing]” around a vehicle and causing a
scrape on the bumper was not using the vehicle in a manner
capable of causing death, permanent disfigurement, loss of a
limb or the like.

   Anchrum vigorously contested the erroneous element here
and before the district court, and I cannot conclude beyond a
reasonable doubt that no rational jury could have found that
Anchrum did not use his vehicle in a way capable of causing
serious bodily harm. I would vacate Count 3 and remand for
resentencing.
