                                                              [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT           FILED
                               ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                      No. 10-11125             NOVEMBER 28, 2011
                                ________________________           JOHN LEY
                                                                    CLERK
                            D.C. Docket No. 0:09-cr-60187-WJZ-2



UNITED STATES OF AMERICA,

lllllllllllllllllllll                                      Plaintiff - Appellee,

                                         versus

KEVIN LINCKS,

lllllllllllllllllllll                                      Defendant - Appellant.

                                ________________________

                                      No. 10-11200
                                ________________________

                            D.C. Docket No. 0:09-cr-60187-WJZ-1



UNITED STATES OF AMERICA,

lllllllllllllllllllll                                      Plaintiff - Appellee,

                                              versus
DONALD LINCKS,

lllllllllllllllllllll                                              Defendant - Appellant.

                               ________________________

                        Appeals from the United States District Court
                            for the Southern District of Florida
                               ________________________

                                   (November 28, 2011)

Before EDMONDSON, BARKETT and SUHRHEINRICH,* Circuit Judges.

PER CURIAM:

         Donald Lincks and his son, Kevin Lincks (together, “Defendants”), appeal

their convictions and sentences following a jury trial for assaulting a postal worker

engaged in his official duties, in violation of 18 U.S.C. § 111(a)(1).1

         The evidence at trial indicated that Donald and Kevin stopped a mailman to

obtain an unemployment check sent to Kevin at a friend’s house, and that when

the mailman refused to give them the mail, Defendants struck him and forcibly

took the mail. The court sentenced Donald and Kevin under the § 111(a) felony

assault provision, carrying a maximum of eight years’ imprisonment, to ninety-

three and eighty-four months, respectively.

         *
         Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit
Court of Appeals, sitting by designation.
         1
        After a mistrial resulting from a deadlocked jury and a two-week delay for scheduling,
defendants were convicted in a second trial.

                                               2
      Having reviewed the record and considered the oral argument of counsel,

we affirm the convictions in this case, finding no reversible error pertaining

thereto. As to Kevin’s argument, the record shows no violation of Batson v.

Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986), and Kevin raises no

other issue pertaining to his conviction.

      Donald contends that, because the district court had provided standby

counsel for his initial trial, it abused its discretion in denying his motion to appoint

standby counsel for his retrial and also in denying his motion to continue his

retrial. On this record, we find no abuse of discretion in the decisions of the

district court denying standby counsel and a continuance under the circumstances

presented.

      We do find reversible error, however, as to the sentences imposed on both

Donald and Kevin and we remand for resentencing. The Defendants claim that the

court erred in sentencing them for felony assault because the indictment and jury

instructions, when taken together, were sufficient only to convict them of

misdemeanor assault. Accordingly, their sentences for felony assault—as opposed

to “simple” assault—violated the requirement of Apprendi v. New Jersey that “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.”


                                            3
530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).

      The indictment here alleged in pertinent part that Defendants “knowingly,

forcibly assaulted, resisted, impeded, intimidated, and interfered with an officer of

the United States . . . , and did thereby inflict bodily injury upon him,” thus

violating 18 U.S.C. §§ 2 and 111(a)(1).2 A defendant commits felony assault if,

and only if, his “acts involve physical contact with the victim of that assault or the

intent to commit another felony.” 18 U.S.C. § 111(a). Only the former

circumstance — physical contact — is at issue here.

      The indictment did not explicitly allege physical contact, and the jury

instructions did not require such a finding to convict Defendants. Thus, the jury


      2
          The statute, 18 U.S.C. § 111, reads in full:

      (a) In general.--Whoever--
              (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes
              with any person designated in section 1114 of this title while engaged in or
              on account of the performance of official duties; or
              (2) forcibly assaults or intimidates any person who formerly served as a
              person designated in section 1114 on account of the performance of
              official duties during such person's term of service,
      shall, where the acts in violation of this section constitute only simple assault, be
      fined under this title or imprisoned not more than one year, or both, and where
      such acts involve physical contact with the victim of that assault or the intent to
      commit another felony, be fined under this title or imprisoned not more than 8
      years, or both.
      (b) Enhanced penalty.--Whoever, in the commission of any acts described in
      subsection (a), uses a deadly or dangerous weapon (including a weapon intended
      to cause death or danger but that fails to do so by reason of a defective
      component) or inflicts bodily injury, shall be fined under this title or imprisoned
      not more than 20 years, or both.


                                                  4
was not required to find physical contact, or even the infliction of bodily injury,

beyond a reasonable doubt. As a result, the verdict supports only a conviction for

simple assault, with a statutory maximum of one year’s imprisonment. Thus, any

sentence over one year exceeds the maximum penalty authorized by the jury’s

verdict and must be vacated.3

       Accordingly, we AFFIRM Defendants’ convictions for simple assault in

violation of 18 U.S.C. § 111(a)(1), but VACATE their sentences under the felony

assault provision of § 111(a)(1), and REMAND for resentencing consistent with

Apprendi.

       AFFIRMED in part, VACATED in part, and REMANDED.




       3
         We find no merit to the claim that the trial court erred in imposing a six-level official
victim enhancement because the assault was motivated by the victim’s status as a postal worker.

                                                 5
