                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5205


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BRIAN S. RANALDSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:07-cr-00168-1)


Argued:   May 11, 2010                    Decided:   June 29, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished opinion.        Judge Duncan   wrote   the
opinion, in which Judge Motz and Judge King joined.


ARGUED: David O. Schles, LAW OFFICE OF DAVID SCHLES, Charleston,
West Virginia, for Appellant. Monica Lynn Dillon, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
ON BRIEF: Charles T. Miller, United States Attorney, Charleston,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      This   appeal          arises     from     a       conviction    and     sentence    for

assaulting       a    person      executing          a    federal     search    warrant     in

violation of 18 U.S.C. § 2231(a).                        The appellant challenges the

district court’s decisions denying a motion to suppress, denying

a motion to sever offenses, refusing to instruct the jury about

self-defense, denying a motion for acquittal or a new trial, and

calculating          his     applicable         sentencing      range        under     federal

sentencing guidelines.             For the reasons that follow, we affirm.



                                                I.

                                                A.

      On August 3, 2007, West Virginia State Troopers assembled

to execute a federal search warrant at the Red Roof Inn motel in

Charleston, West Virginia.                Trooper Andy Purdue had obtained the

warrant following a controlled purchase of cocaine base from

Sean Holloway in Room 209.                 Once the police officers assembled

outside Room 209, Sergeant Ronald Arthur tapped the door with a

battering     ram          and   yelled     “State          Police,    search        warrant.”

J.A. 29.     After waiting a few moments, they tried to enter using

a   key   card       provided      by     the    manager,       but    a     deadbolt     lock

prevented them from doing so.                   The officers then rammed the door

repeatedly but still could not enter.                          They finally broke the


                                                 2
window beside the door and called out, “State Police, open the

door.”    J.A. 70.

       When   the     door    opened    from      the   inside,    Sergeant       Michael

Oglesby entered and found Appellant Brian Ranaldson displaying

his hands and lying on the floor several feet from the door.

Noticing the bathroom door close, Oglesby announced that someone

was there and, stepping over Ranaldson, proceeded directly to

the bathroom.          There he discovered Holloway.                  Oglesby searched

Holloway for weapons, laid him outside the bathroom, and secured

his hands using flexible restraints.

       Arthur     entered       immediately         after      Oglesby     and     began

surveying       the    room    for     weapons.         When    Arthur     drew     near,

Ranaldson seized him by the legs and pulled hard.                          Arthur and

Ranaldson       then    struggled           feverishly,       striking    each     other

repeatedly with fists and knees, and becoming locked in a bear

hug.     Sergeant Robert Medford and the canine handler intervened,

but Ranaldson continued fighting even after the police dog bit

him.     Oglesby soon realized that Arthur needed help and, “being

a bear of a man, six-feet-three, 275 pounds,” came and tackled

everybody to the floor.           J.A. 118.

       Once   knocked     over,      Ranaldson      stopped     struggling     and    the

officers      finally    managed       to    secure     his   hands    using   flexible

restraints.       The officers then hoisted him onto a chair.                       After

calming down, Ranaldson stated, “I’m sorry for fighting you,”
                                              3
J.A. 39, and explained, “I don’t know what I was thinking,”

J.A. 74.    Upon searching the motel room, the officers discovered

marijuana, cocaine base, digital scales, and the cash that had

been used for the controlled purchase.



                                      B.

       On August 6, 2007, Ranaldson and Holloway were charged by

criminal complaint with conspiracy to distribute 50 grams or

more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 846

(count 1), and aiding and abetting possession with intent to

distribute 5 grams or more of cocaine base in violation of 21

U.S.C. § 841(a)(1) (count 2).              Holloway later entered a plea

agreement and pleaded guilty to count 2.

       Ranaldson moved to suppress his statements and all seized

evidence on the ground that the officers used excessive force.

During a hearing on the motion, Ranaldson testified that he had

not    resisted,   but   that   the   officers   nonetheless   struck   him

repeatedly and allowed the police dog to bite him.              Ranaldson

stated that when they entered the motel room Oglesby stepped on

his face and Arthur kicked him lying down, causing him to black

out.     Ranaldson added that, upon regaining consciousness, he

found himself stripped almost naked and heard Holloway say that

the officers had beaten him severely.             Regarding his injuries,

Ranaldson explained, “my whole face was swollen like I was in a
                                      4
boxing match,” “both of my knees . . . had glass contusions all

around    them    and    on    them,”    “a      piece    of     my    thigh      was    just

literally hanging down from a dog bite, and I got two teeth

marks on the side of my thigh of just a dog gripping in on my

leg.”    J.A. 89.

      Arthur and Oglesby also testified during the suppression

hearing.        Arthur   testified       that     Ranaldson       grabbed      his      legs,

tried    to    pull   him     down,   and       then   fought     desperately           until

Oglesby       intervened.         Arthur      stated      that        he   first     struck

Ranaldson only when Ranaldson almost grabbed Arthur’s holstered

handgun.       Arthur also stated that Ranaldson grabbed Medford’s

rifle by the magazine (containing cartridges that are fed into

the   gun     chamber)      but   that     part    detached       from      the    weapon.

Describing Ranaldson’s intensity, Arthur stated that “his eyes

glazed over” and “at that point he became where I felt like I

was fighting for my life.”              J.A. 35.         Arthur also explained why

force had been necessary: “It seemed like everything we did,

instead of getting compliance, the fight got more intensified

and he seemed to get stronger and more dangerous. . . .                                   He

never did give in and just let us take him into custody.”                               J.A.

38.     Corroborating this account, Oglesby testified to rushing to

help Arthur and Medford upon seeing “Ranaldson literally pick

those two guys up as he returned to his feet.”                        J.A. 72-73.


                                            5
     On   December    3,     2007,    after       hearing     the   evidence,   the

district court denied Ranaldson’s motion to suppress.                   The court

found that “[t]he steps that the officers took with increasing

intensity   as     their   effort     to       gain   entry    proceeded    [were]

entirely reasonable and [were] commensurate with the needs of

the moment.”     J.A. 119.



                                       C.

     On December 11, 2007, the government filed a superseding

indictment against Ranaldson.              In addition to counts 1 and 2,

the indictment included another count for assaulting a person

executing a federal search warrant in violation of 18 U.S.C.

§ 2231(a) (count 3).         Specifically, the government alleged that

Ranaldson   “did     unlawfully      and       forcibly   assault     and   resist,

oppose, impede, and interfere with West Virginia State Police

Sgt. Ronald D. Arthur, a person authorized to execute search

warrants, while he was engaged in the performance of executing a

federal search warrant.”        J.A. 126.

     On January 9, 2008, Ranaldson moved to sever count 3 from

counts 1 and 2 under Federal Rule of Criminal Procedure 14. 1                    He




     1
       Rule 14 provides in relevant part: “If the joinder of
offenses . . . in an indictment . . . appears to prejudice a
(Continued)

                                           6
argued    that    joining    the     offenses   prejudiced          him       because   he

wanted    to   testify     regarding    count   3   but       exercise         his   Fifth

Amendment      privilege    regarding    counts     1   and    2.         The   district

court    denied   this     motion,    reasoning     that      count       3   implicated

counts 1 and 2, and that evidence admissible regarding counts 1

and 2 was also admissible regarding count 3, and vice versa.

       On January 29, 2009, the case proceeded to trial by jury.

Although Ranaldson did not take the stand, Holloway testified

about what he had observed:

       From what I seen, Brian [Ranaldson] looked like he was
       unconscious.    So, I mean, I don’t know what had
       happened before when I was in the bathroom, but when I
       came out, when I seen him, he was laying on the floor.
       There was like a dude in front of him.    I don’t know
       if he was choking him or not, but it looked like he
       was choking him to me. And there was another officer
       over there with a dog and they put me on the floor.
       When they put me on the floor, I’m trying to look
       forward. One of the officers put like a hat in front
       of my face, so I couldn’t see what was going on.     I
       pulled my head to the right and I seen a little bit,
       but I really -- I really couldn’t tell what was all
       going on.

J.A.    164.      Holloway    later     reiterated,      “It    looked          like    one

[officer] was choking him [Ranaldson] and it looked like the

other one was just standing there,” J.A. 176, and also stated,




defendant . . . the court may order separate trials of counts.”
Fed. R. Crim. P. 14(a).



                                         7
“I guess as soon as they noticed I could see, they put a hat

like in front of me, in front of my face,” J.A. 177.                             Based upon

this   testimony,       Ranaldson      requested      a     jury    instruction       about

self-defense regarding count 3.                  The district court denied this

request,       however,      reasoning       that    “there        [was]     a    lack     of

evidentiary support.”          J.A. 366.

       After     presenting      its      evidence,         the    government        sought

judicial       notice     that       “West       Virginia     state        troopers       are

authorized by law to serve federal search warrants.”                              J.A. 333.

The district court then found “as a matter of law that the first

of the three elements of the assault offense in count three

[wa]s and ha[d] been established; that being that on August 3,

2007, West Virginia State Police Sergeant Ronald D. Arthur was a

person authorized to execute the federal search warrant in this

case.”     J.A.       371.     The    court      later    instructed        the    jury    as

follows: “I notice and note to you now that as to that first

element, the court has found as a matter of law that Sergeant

Arthur   was     at   that    time    a   person     authorized       to    execute       the

federal search warrant in this case.”                 J.A. 373.

       The jury convicted Ranaldson on count 3 and acquitted him

on counts 1 and 2.           He timely moved for acquittal or a new trial

under Federal Rules of Criminal Procedure 29 and 33.                              Ranaldson

argued that, even if West Virginia State Troopers are authorized

by law to execute federal search warrants, the jury instruction
                                             8
about count 3’s first element erroneously prevented the jury

from    determining         whether   Arthur       was      a   West     Virginia      State

Trooper during the August 3, 2007, search.                            Although agreeing

with this argument and acknowledging the error, the district

court found this error harmless and denied the motion.

       Ranaldson      was    sentenced       on    November       19,     2008.        Under

federal     sentencing       guidelines,         the    district       court   determined

that    a   base      offense       level     of       14    using     section       2A2.2’s

“aggravated assault” offense guideline was appropriate because

Ranaldson had assaulted Arthur while trying to disarm Medford.

The court added 3 levels under section 2A2.2(b)(3) upon finding

that    Arthur     suffered     bodily       injury,        6   levels    under      section

3A1.2’s     “official         victim”       enhancement          upon     finding       that

Ranaldson attacked due to Arthur’s search warrant, and 2 levels

under section 3C1.1’s “obstruction of justice” enhancement upon

finding that Ranaldson lied during the suppression hearing.                              The

court    also    refused      to    reduce       Ranaldson’s       offense     level     for

acceptance       of   responsibility          under         section      3E1.1.       Given

Ranaldson’s       criminal         history       category        of     II,    the     court

calculated a sentencing range of 63 to 78 months using section

5A’s sentencing table.             Because the crime of assaulting a person

executing a federal search warrant under 18 U.S.C. § 2231(a)

carries a maximum penalty of three years, however, the court

determined that Ranaldson’s guideline sentence became 36 months
                                             9
pursuant       to   section     5G1.1.           Ultimately,         the    court       sentenced

Ranaldson to the statutory maximum of three years imprisonment.

This appeal followed.



                                                 II.

        Ranaldson now challenges the decisions below regarding (1)

his motion to suppress, (2) his motion to sever offenses, (3)

his request for a jury instruction about self-defense, (4) his

motion for acquittal or a new trial, and (5) his applicable

sentencing range.            We address each matter in turn.



                                                 A.

     We     first           consider       the        district       court’s        denial       of

Ranaldson’s         motion     to    suppress         his    apology     and      all   evidence

seized during the search on August 3, 2007.                                 “In assessing a

trial court’s ruling on a motion to suppress, we review factual

findings    for      clear     error       and    legal       determinations         de   novo.”

United    States       v.    Green,       599    F.3d       360,   375     (4th    Cir.   2010).

Under    the    clear-error          standard,         “[a]    factual      finding       by    the

district       court    may    be     reversed         only    if,   ‘although          there   is

evidence       to    support        it,   the     reviewing        court     on    the    entire

evidence is left with the definite and firm conviction that a

mistake has been committed.’”                    Walton v. Johnson, 440 F.3d 160,

173-74 (4th Cir. 2006) (en banc) (quoting United States v. U.S.
                                                 10
Gypsum Co., 333 U.S. 364, 395 (1948)); see United States v.

Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (same).                          “‘Where

there     are     two    permissible        views   of      the    evidence,      the

factfinder’s choice between them cannot be clearly erroneous.’”

Walker v. Kelly, 589 F.3d 127, 141 (4th Cir. 2009) (quoting

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).

     Ranaldson asserts that the district court’s denial of his

motion    to    suppress    should     be     reversed    because      the    court’s

finding    that    the    officers   used      reasonable      force     is   clearly

erroneous.        We     disagree.      Because     the     district     court    was

presented       with     contradictory        accounts    of      what       happened,

Ranaldson’s      argument    about   excessive      force    depended        primarily

upon a determination of witness credibility. 2                 “[W]hen a district

court’s factual finding is based upon assessments of witness

credibility, such finding is deserving of the highest degree of

appellate deference.”         United States v. Thompson, 554 F.3d 450,

452 (4th Cir. 2009) (internal quotations omitted).                        Given our


     2
       Ranaldson conceded this below.     See J.A. 114 (“On the
issue of excessive force, no question, the court has factual
conflict in testimony to resolve. . . .    I agree with the U.S.
Attorney, the defendant’s testimony is directly contradictory to
the police officers, and cannot be reconciled.    The court will
have to make a credibility determination on that.”); J.A. 134-35
(noting that “[i]t’s simply a credibility issue” because “the
only conceivable evidence as to what transpired in that motel
room is direct testimony from people who were there”).



                                         11
deferential standard of review, we see no compelling reason to

disturb   the    district   court’s       finding     that    the     officers   used

reasonable      force.      The   finding      was        supported    by   credible

evidence that Ranaldson initiated the altercation with Arthur,

fought    desperately     despite    increasingly          forceful    attempts   to

secure and arrest him, and posed a considerable threat to the

officers’ safety -- e.g., nearly seizing Medford’s rifle.                         The

finding was also supported by Ranaldson’s spontaneous admission,

“I’m sorry for fighting you.”             J.A. 39.         For these reasons, we

conclude that the district court’s finding that the officers

used reasonable force is not clearly erroneous, and we therefore

affirm the denial of Ranaldson’s motion to suppress. 3



                                          B.

     We next consider the district court’s denial of Ranaldson’s

motion to sever count 3 from counts 1 and 2 under Rule 14.                         We

review    “refusal   to   sever     for    abuse     of    discretion.”       United


     3
       Ranaldson also asserts that his motion to suppress should
have been granted because the officers violated the “knock-and-
announce” rule.      Because the Supreme Court declared the
exclusionary    rule    inapplicable    to    “knock-and-announce”
violations, Hudson v. Michigan, 547 U.S. 586 (2006), we find
this   argument  unavailing,   see   Appellant’s   Br.  at   14-15
(“Defendant concedes that Hudson . . . states that a violation
of the ‘knock and announce’ rule standing alone is not
sufficient grounds for suppression.”).



                                          12
States v. Montgomery, 262 F.3d 233, 244 (4th Cir. 2001); see

Zafiro v. United States, 506 U.S. 534, 541 (1993) (“Rule 14

leaves the determination of risk of prejudice and any remedy

that may be necessary to the sound discretion of the district

courts.”).

      Federal Rule of Criminal Procedure 8 provides that “[t]he

indictment or information may charge a defendant in separate

counts with 2 or more offenses if the offenses charged . . . are

of the same or similar character, or are based on the same act

or transaction, or are connected with or constitute parts of a

common    scheme    or       plan.”          Fed.     R.    Crim.    P.     8(a).     Rule   14

provides, however, that “[i]f the joinder of offenses . . . in

an   indictment,        an       information,         or   a   consolidation        for   trial

appears    to    prejudice          a   defendant          . . .    the    court    may   order

separate trials of counts.”                      Fed. R. Crim. P. 14(a).                  Under

Rule 14,    “[t]he       party         seeking      severance       bears    the    burden   of

demonstrating a strong showing of prejudice.”                              United States v.

Branch, 537 F.3d 328, 341 (4th Cir. 2008) (internal quotations

omitted).

      Ranaldson maintains that joinder of count 3 with counts 1

and 2 under Rule 8 prejudiced him because he wanted to testify

regarding       count    3       but    assert      his     Fifth    Amendment      privilege

regarding       counts       1    and   2.       We    previously         articulated     legal

principles governing this argument as follows:
                                                 13
        [B]ecause of the unfavorable appearance of testifying
        on one charge while remaining silent on another, and
        the consequent pressure to testify as to all or none,
        the defendant may be confronted with a dilemma;
        whether, by remaining silent, to lose the benefit of
        vital testimony on one count, rather than risk the
        prejudice (as to either or both counts) that would
        result from testifying on the other.       Obviously no
        such dilemma exists where the balance of risk and
        advantage in respect of testifying is substantially
        the same as to each count.    Thus . . . no need for a
        severance   exists   until   the   defendant   makes   a
        convincing   showing   that  he   has   both   important
        testimony to give concerning one count and strong need
        to refrain from testifying on the other.      In making
        such a showing, it is essential that the defendant
        present enough information -- regarding the nature of
        the testimony he wishes to give on one count and his
        reasons for not wishing to testify on the other -- to
        satisfy the court that the claim of prejudice is
        genuine and to enable it intelligently to weigh the
        considerations of economy and expedition in judicial
        administration against the defendant’s interest in
        having a free choice with respect to testifying.

United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984)

(quoting Baker v. United States, 401 F.2d 958, 976-77 (D.C. Cir.

1968)     (internal       quotations        omitted));        see   United      States     v.

Jamar, 561 F.2d 1103, 1108 n.9 (4th Cir. 1977) (indicating that

Baker,     quoted     wholesale        by     Goldman,        “does      not    require     a

severance every time a defendant merely alleges that he wishes

to   offer     limited        testimony,”      but    instead       “a    particularized

showing    must     be    made    concerning      the    testimony        the    defendant

wishes    to   give      and   his    reasons     for   remaining         silent   on     the

joined     counts,       so    that   the     court     can    make      an    independent




                                             14
evaluation of whether the defendant will be prejudiced to an

extent that outweighs the interests favoring joinder”).

     Ranaldson      explained           below    that     he    wished       to    testify

regarding   count      3    because      he     hoped    to    establish      the    legal

justification     of   self-defense.              Regarding       why   he    wished    to

remain silent regarding counts 1 and 2, Ranaldson said only that

     [h]e would be subject to cross-examination as to the
     nature, extent, and duration of his relationship with
     Mr. Holloway, who was his initial codefendant who has
     now pled guilty and is expected to testify against
     him; the circumstances surrounding his travel from
     Ohio to Charleston, West Virginia; his whereabouts and
     activities during his [sic] period that he was in
     Charleston, West Virginia; [and] the events leading up
     to the very moment when the police entered the motel
     room.

J.A. 135-36.      The district court correctly noted, however, that

evidence regarding counts 1 and 2 would be admissible during a

trial    solely   on       count    3.        Evidence     that    Ranaldson         helped

Holloway sell cocaine base, for instance, would be admissible to

show (1) why Arthur had arrived with a federal search warrant

issued following a controlled purchase of cocaine base and (2)

that Ranaldson had wanted to delay the officers’ search to give

Holloway    the     chance         to    destroy        contraband. 4             Ranaldson




     4
       Ranaldson appears to have conceded the second example.
See J.A. 138 (arguing that the alleged drug conspiracy does not
encompass Ranaldson’s alleged assault, but admitting that
(Continued)

                                           15
accordingly offered no valid reason for wishing to assert his

Fifth        Amendment     privilege         regarding       counts       1      and     2.

Furthermore,        all   three    counts    were      logically     related      because

they    involved       similar    evidence       and   centered      around      the   same

August 3, 2007, search.            See United States v. Mir, 525 F.3d 351,

357    (4th    Cir.     2008)     (affirming      denial     of    severance      because

“[t]rying      the     . . .     charge[s]     separately         would   have    led   to

significant inconvenience for the government and its witnesses,

and required a needless duplication of judicial effort in light

of the legal, factual, and logistical relationship between the

charges”).          For these reasons, we conclude that the district

court    did    not    abuse     its   discretion      and   therefore        affirm    the

denial of Ranaldson’s motion for severance under Rule 14.



                                            C.

        We   next     consider    Ranaldson’s       denied    request      for     a   jury

instruction about self-defense.                  “We review the district court’s

decision to give or refuse to give a jury instruction for abuse

of discretion.”           United States v. Passaro, 577 F.3d 207, 221




“certainly they [the government] are entitled, I believe, to
make the argument that in their opinion it goes to motive”).



                                            16
(4th       Cir.    2009).        “[A]    district            court   should      give    the

instruction that a criminal defendant requests as to any defense

as long as the instruction: 1) has an evidentiary foundation;

and    2)    accurately     states      the    law    applicable          to   the   charged

offense.”         United States v. Stotts, 113 F.3d 493, 496 (4th Cir.

1997).       “A district court commits reversible error in refusing

to     provide      a    proffered       jury      instruction         only      when    the

instruction (1) was correct; (2) was not substantially covered

by the court’s charge to the jury; and (3) dealt with some point

in the trial so important, that failure to give the requested

instruction        seriously      impaired         the       defendant’s       ability    to

conduct      his    defense.”        Passaro,        577      F.3d   at    221   (internal

quotations omitted).

       Ranaldson        argues    that    the        district        court     abused    its

discretion by refusing to instruct the jury about self-defense

because       trial     testimony       provided         a    sufficient       evidentiary

foundation for the instruction.                    Assuming that the doctrine of

self-defense applies to assaulting a person executing a federal

search warrant under 18 U.S.C. § 2231(a), 5 we have recognized




       5
       In United States v. Gore, 592 F.3d 489 (4th Cir. 2010), we
considered whether common-law self-defense was available even
though the relevant federal criminal statute contained no
language providing for any affirmative defense.     Neither party
(Continued)

                                              17
that    this     doctrine     has    limited   applicability   where    police

officers are involved:

       [A] defendant generally cannot invoke self-defense to
       justify an assault on a police or correctional
       officer.      A   standard   self-defense  instruction
       therefore does not apply to such cases.     However, a
       limited right of self-defense does arise if the
       defendant presents evidence that the officer used
       excessive force in carrying out his official duties.
       A defendant who responds to an officer’s use of
       excessive force with force reasonably necessary for
       self-protection under the circumstances has acted with
       justifiable and excusable cause . . . .

Stotts,    113    F.3d   at    496   (internal   quotations    and   citations

omitted).      Regarding whether “excessive force” was used, we have

explained that “[t]he test for whether force employed to effect

a seizure is excessive is one of ‘“objective reasonableness”

under the circumstances.’”             Waterman v. Batton, 393 F.3d 471,

476 (4th Cir. 2005) (quoting Graham v. Connor, 490 U.S. 386, 399

(1989)).       “Because ‘police officers are often forced to make

split-second judgments . . . in circumstances that are tense,

uncertain, and rapidly evolving,’ the facts must be evaluated

from the perspective of a reasonable officer on the scene, and




raised that issue in this case, and because we affirm on other
grounds, we do not consider it.



                                        18
the use of hindsight must be avoided.”                 Id. at 476-77 (quoting

Graham, 490 U.S. at 397).

     Ranaldson     argues       that    Holloway’s     testimony      provided    a

sufficient evidentiary foundation for a jury instruction about

self-defense     because      Holloway     stated,     “It   looked     like     one

[officer] was choking him [Ranaldson] and it looked like the

other one was just standing there,” J.A. 176, and also stated,

“I guess as soon as they noticed I could see, they put a hat

like in front of me, in front of my face.”                J.A. 176-77.         These

statements     alone    are     insufficient     to    establish   self-defense

because,     although    they    describe      the    officers’    conduct,      the

statements     reveal    nothing       about   whether    Ranaldson     responded

“with force reasonably necessary for self-protection.”                    Stotts,

113 F.3d at 496.        Holloway also admitted, “I don’t know what had

happened before when I was in the bathroom,” “I don’t know if he

was choking him or not,” and “I really couldn’t tell what was

all going on.”     J.A. 164.       For these reasons, the district court

did not abuse its discretion by not instructing the jury about

self-defense.    We therefore affirm this decision.




                                         19
                                          D.

       We next consider the district court’s denial of Ranaldson’s

motion for acquittal under Rule 29 or a new trial under Rule 33. 6

“We review de novo a district court’s denial of a Rule 29 motion

for judgment of acquittal,” United States v. Alerre, 430 F.3d

681,       693   (4th   Cir.    2005),    but   “[w]e    review      for    abuse   of

discretion a district court’s denial of a [Rule 33] motion . . .

for a new trial,” United States v. Smith, 451 F.3d 209, 216 (4th

Cir. 2006).         With regard to Rule 29, “we are obliged to sustain

a guilty verdict if, viewing the evidence in the light most

favorable to the Government, it is supported by ‘substantial

evidence,’” meaning “‘evidence that a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion

of a defendant’s guilt beyond a reasonable doubt.’”                       Alerre, 430

F.3d at 693 (quoting            United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc)).               With regard to Rule 33, “a trial

court      should    exercise    its     discretion     to   award    a    new   trial

sparingly, and a jury verdict is not to be overturned except in


       6
       Rule 29 provides that “the court on the defendant’s motion
must enter a judgment of acquittal of any offense for which the
evidence is insufficient to sustain a conviction.”       Fed. R.
Crim. P. 29(a).       And Rule 33 provides that “[u]pon the
defendant’s motion, the court may vacate any judgment and grant
a new trial if the interest of justice so requires.”      Fed. R.
Crim. P. 33(a).



                                          20
the rare circumstance when the evidence weighs heavily against

it.”    Smith, 451 F.3d at 217 (internal quotations omitted).

       Ranaldson    challenges      the    district        court’s    determination

that    its   erroneous      jury   instruction        regarding      count     3    was

harmless      error.      For     the   offense       of   assaulting       a   person

executing a federal search warrant under 18 U.S.C. § 2231(a),

the government had to prove three elements: (1) that on August

3,    2007,   Arthur   was      authorized     to   execute    a     federal    search

warrant; (2) that Ranaldson “did unlawfully and forcibly assault

or resist, oppose, impede, or interfere” with Arthur; and (3)

that Ranaldson did this while Arthur was executing a federal

search   warrant.        J.A.    373.     Having      concluded      that   all     West

Virginia State Troopers are authorized to execute federal search

warrants, the district court instructed the jury that the first

element was established: “I notice and note to you now that as

to that first element, the court has found as a matter of law

that Sergeant Arthur was at that time a person authorized to

execute the federal search warrant in this case.”                           J.A. 373.

The court later admitted that this was error because, although

any    West   Virginia    State     Trooper     may    have    had    authority      to

execute the search warrant, the jury should have been required

to determine whether Arthur was a West Virginia State Trooper on




                                          21
August 3, 2007. 7       Regardless, the court denied Ranaldson’s motion

for acquittal or a new trial upon concluding that the error was

harmless.

       The    district    court’s      determination     of     harmlessness      was

based upon our precedent United States v. Lovern, 293 F.3d 695

(4th Cir. 2002).             There, the defendant was charged under 26

U.S.C. § 7212(a) with intimidating a federal employee acting in

his    official      capacity    under   Title     26.    The     district     court

instructed      the     jury    that   the    employee    whom    the   defendant

allegedly threatened “was acting in the scope of his official

duties under Title 26 during the . . . conversation.”                        Id. at

699.       Because    this     established    an   essential     element     of   the

charged      offense,    we    found   that   giving     this    instruction      was

constitutional error.            See United States v. Gaudin, 515 U.S.

506, 510 (1995) (noting that the Fifth Amendment Due Process


       7
       Ranaldson maintains that the jury should have also been
required to determine whether West Virginia State Troopers are
authorized by law to execute federal search warrants.        The
district court ruled that Congress had granted them such
authority pursuant to 18 U.S.C. § 3105 and W. Va. Code § 15-2-
12.   Because this was purely a legal question, see Stephens ex
rel. R.E. v. Astrue, 565 F.3d 131, 137 (4th Cir. 2009)
(considering statutory interpretation “a quintessential question
of law”), the court did not err by deciding it for the jury, see
Dimick v. Schiedt, 293 U.S. 474, 486 (1935) (“The controlling
distinction between the power of the court and that of the jury
is that the former is the power to determine the law and the
latter to determine the facts.”).



                                         22
Clause and the Sixth Amendment jury trial guarantee “require

criminal convictions to rest upon a jury determination that the

defendant is guilty of every element of the crime with which he

is charged, beyond a reasonable doubt”).                  We found this error

harmless, however, because although the defendant “contested the

element’s not being submitted to the jury, he did not ‘raise[]

evidence sufficient to support a contrary finding . . .’ to that

reached by the judge.”         Lovern, 293 F.3d at 701 (quoting Neder

v.   United    States,   527   U.S.     1,    19    (1999))      (alterations   in

original).

       Under   Lovern,   we    should        assess   harmlessness      here    by

considering whether Ranaldson offered sufficient evidence during

trial to establish that Arthur had not been a West Virginia

State Trooper during the August 3, 2007, search.                     We conclude

that he did not.

       Arthur wore his police uniform during trial and testified

that he had been employed by the West Virginia State Police

Department for the last 13 years.             The evidence also showed that

Arthur conducted himself as a West Virginia State Trooper during

the August 3, 2007, search.        More importantly, Ranaldson offered

no evidence to the contrary.          Indeed, defense counsel frequently

called Arthur “Sergeant Arthur,” J.A. 270, and conceded during

oral   argument   that   Arthur   was      indeed     a   West    Virginia   State

Trooper on August 3, 2007.        For these reasons, we agree that the
                                      23
erroneous    jury    instruction     about     count   3   was   harmless.       We

therefore    affirm      the   district     court’s    denial    of    Ranaldson’s

motion for acquittal under Rule 29 or a new trial under Rule 33.



                                        E.

     We finally turn to several challenges that Ranaldson brings

regarding the district court’s application of federal sentencing

guidelines.       “In considering challenges to a sentencing court’s

application of the Guidelines, we review factual determinations

for clear error and legal issues de novo.”                     Elliot v. United

States, 332 F.3d 753, 761 (4th Cir. 2003).

     First,       Ranaldson    argues   that    his    offense    of     conviction

should have been deemed a “minor assault” under section 2A2.3

rather     than    an    “aggravated       assault”    under     section    2A2.2.

According to relevant commentary, “‘[a]ggravated assault’ means

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.”            USSG § 2A2.2 application note 1.             The

district     court      reasoned    that     Ranaldson’s       assault     involved

“intent to commit another felony” because Ranaldson tried to

seize Medford’s rifle during the struggle and West Virginia law

provides that “[a]ny person who intentionally . . . attempts to

disarm any law-enforcement officer acting in his or her official
                                        24
capacity, is guilty of a felony.”                  W. Va. Code § 61-5-17(b).               We

find no error here and Ranaldson provides no guidance about how

the court might have been incorrect. 8                     We therefore affirm the

district court’s finding that Ranaldson’s offense of conviction

was an “aggravated assault” under section 2A2.2.

       Second, Ranaldson argues that the district court should not

have       applied   the    specific      offense       characteristic       of    section

2A2.2(b)(3)(A),           namely,    that        the    victim     suffered        “bodily

injury.”        According to relevant commentary, “‘[b]odily injury’

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.”         USSG    § 1B1.1    application          note

1(B); see USSG § 2A2.2 application note 1.                        The district court

reasoned that Arthur suffered “significant injury” under that

standard      because      Ranaldson’s      punches      caused    him   to       spit    out

blood and chip a tooth.                  The court further noted that Arthur

also received various bumps and bruises.                          Ranaldson concedes

these factual findings but concludes without explanation that

Arthur’s injuries were insufficiently serious.                           We find this

argument       unpersuasive      and      thus    affirm    the    district        court’s



       8
       Ranaldson’s only argument here misconstrues the district
court’s reasoning. See Appellant’s Br. at 49-50.



                                            25
conclusion that Arthur suffered “bodily injury” under section

2A2.2(b)(3)(A).

       Third, Ranaldson argues that the district court should not

have       applied          the    “official   victim”         enhancement        under    section

3A1.2.       The enhancement applies “[i]f (1) the victim was . . . a

government         officer          or    employee       . . .    and    (2)   the     offense    of

conviction was motivated by such status.”                               USSG § 3A1.2(a).         The

district court applied the enhancement upon finding that “the

defendant engaged in the assault against the officers in order

to     interfere            with     the    official       investigation          of     the   drug

offense, that is, to give Holloway time to flush the drugs.”

J.A.       478.         Given       the    record    evidence       already       discussed,      we

cannot       find       clear       error     here       and     thus    affirm      the   court’s

decision          to        apply    the    “official          victim”     enhancement         under

section 3A1.2. 9

       Finally, Ranaldson argues that the district court erred by

not     reducing             his    offense     level          under     section       3E1.1     for

acceptance             of     responsibility.              The     court       refused     because


       9
       Ranaldson also argues that the district court erred by
applying the “obstruction of justice” enhancement of section
3C1.1 after finding that Ranaldson had lied during the
suppression hearing in denying the police officers’ allegations.
Other than insisting upon his innocence, Ranaldson gives no
reason why this factual finding was clearly erroneous. We thus
affirm the court’s decision.



                                                    26
Ranaldson had declined to plead guilty.             Such reasoning accords

with the relevant commentary: “This adjustment is not intended

to apply to a defendant who puts the government to its burden of

proof    at   trial   by   denying   the    essential   factual   elements    of

guilt, is convicted, and only then admits guilt and expresses

remorse.”     USSG § 3E1.1 application note 2.           The court’s finding

that Ranaldson falsely denied conduct relevant to the offense

also supports refusing to apply section 3E1.1.              See Elliot, 332

F.3d at 766 (affirming denial of adjustment for acceptance of

responsibility under section 3E1.1 because the defendant “did

falsely deny certain aspects of her relevant conduct” (emphasis

omitted)).      We therefore affirm the district court’s refusal to

reduce    Ranaldson’s      offense    level     under   section    3E1.1     for

acceptance of responsibility.



                                      III.

    For the reasons stated above, we

                                                                      AFFIRM.




                                       27
