                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 05-50375
                Plaintiff-Appellee,          D.C. No.
               v.                         CR 03-728-PA
MALIK SMITH,                                ORDER
             Defendant-Appellant.          AMENDING
                                          OPINION AND
                                           AMENDED
                                           OPINION

       Appeal from the United States District Court
          for the Central District of California
        Percy Anderson, District Judge, Presiding

                 Argued and Submitted
         December 17, 2008—Pasadena, California

                   Filed March 24, 2009
                  Amended April 9, 2009

 Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
         Stephen Reinhardt, Andrew J. Kleinfeld,
         Michael Daly Hawkins, Susan P. Graber,
Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez,
  Marsha S. Berzon, and Sandra S. Ikuta, Circuit Judges.

                Opinion by Judge Hawkins;
                 Dissent by Judge Berzon




                           4323
                    UNITED STATES v. SMITH                4327




                         COUNSEL

Davina T. Chen, Deputy Federal Public Defender (authored
briefs and presented oral argument), Los Angeles, California,
for the defendant-appellant.

Erik Michael Silber, Assistant United States Attorney (pre-
sented oral argument), and Craig H. Missakian, Assistant
United States Attorney (authored brief), Los Angeles, Califor-
nia, for the plaintiff-appellee.


                           ORDER

The Opinion filed March 24, 2009, slip op. 3735, is hereby
amended as follows:

1.   On page 3745, line 13: “substantial” is replaced with “se-
     rious”

2.   On page 3745, line 13: “113” is replaced with
     “113(b)(2)”

3.   On page 3745, line 14: “substantial” is replaced with “se-
     rious”

4.   On page 3745, line 16: “means” is replaced with “is any
     harm that involves”
4328                UNITED STATES v. SMITH
5.   On page 3746, lines 18-20: “(Because the evidence estab-
     lished as much, she explained, she did not raise a suffi-
     ciency of the evidence claim on appeal.)” is deleted

6.   On page 3746, footnote 4, line 10: “on appeal” is
     replaced with “in these proceedings by competent coun-
     sel”

  The “Petition for Additional Rehearing by Limited En Banc
Panel” remains pending and will be disposed of in a separate
Order.


                         OPINION

HAWKINS, Circuit Judge:

  We primarily consider whether a jury instruction imper-
missibly relieved the government of its burden to prove
beyond a reasonable doubt that the defendant used a “danger-
ous weapon” and whether any error in the instruction was
harmless. A panel of our court held that the jury instruction
was not defective and affirmed the defendant’s conviction.
United States v. Smith, 520 F.3d 1097 (9th Cir. 2008). We
subsequently granted rehearing en banc.

   Although we hold there was a “reasonable likelihood” the
trial judge’s instructions “misled” the jury to think they did
not have to determine beyond a reasonable doubt that the
defendant used a dangerous weapon, see Middleton v. McNeil,
541 U.S. 433, 437 (2004) (per curiam), we nevertheless
affirm Smith’s conviction because we “conclude that it is
‘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) (en banc) (quoting Neder v. United States, 527 U.S. 1,
18 (1999)).
                     UNITED STATES v. SMITH                  4329
   Smith also challenges his sentence. Concluding that the dis-
trict court erred in delegating its statutory duties and applying
the Sentencing Guidelines to the facts of this case, we vacate
Smith’s sentence and remand for further sentencing proceed-
ings consistent with this Opinion.

                                I.

                               A.

   Prison officials at the federal penitentiary in Lompoc, Cali-
fornia, found Charles Helem holding George Jeffries from
behind while Malik Smith was stabbing Jeffries with a prison-
made knife. The knife used in the assault was a flat, six-inch-
long “shank” fashioned from melted plastic dishware. It was
hard and sharpened to a point. Although the prison-made
knife broke in two under the force of the stabbing, Smith con-
tinued to strike Jeffries with one of the pieces until Jeffries
broke away.

   After the altercation, the three inmates were examined by
Reynaldo Nisperos, a physician’s assistant at the prison.
Nisperos—a twenty-year veteran of the Bureau of Prisons
who has treated between fifty and one hundred prison
stabbings—found no injuries on Helem and only minor abra-
sions on Smith’s hands and lower lip. His examination of Jef-
fries, however, revealed “very extensive injur[ies],”
including: a “ten centimeters,” “full-skin thick” laceration on
Jeffries’s right eyelid; an “eight centimeters full-skin thick-
ness laceration” on the left parietal region of his head; a third,
less serious laceration; superficial abrasions on his neck and
right knee; and several “abrasions and lacerations” of varying
sizes on his lower back. Nisperos provided first aid to both
Smith and Jeffries for their injuries.

   After the incident, the prison punished Smith for assault
and possession of a sharpened instrument, imposing 120 days
of disciplinary segregation and deducting 360 visitor days and
4330                    UNITED STATES v. SMITH
80 days of good conduct time. Smith was subsequently
released from prison in 2002.

                                    B.

   After his release, Smith was charged in connection with the
prison fight with “Assault with intent to commit murder,” in
violation of 18 U.S.C. § 113(a)(1), and “Assault with a dan-
gerous weapon, with intent to do bodily harm,” in violation of
18 U.S.C. § 113(a)(3). At trial, Lieutenant Jaime Bengford
testified that the prison-made knife had been made by accu-
mulating and melting down plastic meal trays to create a
“weapon.” Testifying as a medical expert,1 Nisperos
explained to the jury the severity of Jeffries’s injuries,
describing them as “very extensive” and detailing the loca-
tions of the specific wounds. When subsequently asked
whether, “in your opinion, based on your experience, if some-
one was stabbed in a vital organ with that prison-made knife,
could that injury be fatal,” Nisperos testified that the prison-
made knife “could cause very fatal injuries.” Smith never
challenged, on cross-examination or at any other time before
the jury, Nisperos’s conclusions that the prison-made knife
did cause “very extensive” injuries, including a skin-deep lac-
eration on Jeffries’s eyelid, or that it could have caused fatal
injuries.

  At the conclusion of trial, the court instructed the jury on
assault with intent to commit murder, assault with a danger-
ous weapon, and the lesser-included offense of simple assault.
Tracking this circuit’s then-current Model Criminal Jury
Instruction 8.5, the trial court instructed the jury on assault
with a dangerous weapon as follows:

        The defendant is charged in Count 2 of the indict-
  1
   Smith challenged Nisperos’s certification as a medical expert at trial
and before the initial three-judge panel of this court. The panel upheld the
certification, and Smith has not raised the issue on petition for rehearing.
                        UNITED STATES v. SMITH                         4331
      ment with assault with a dangerous weapon, in viola-
      tion of Section 113(a)(3) of Title 18 of the United
      States Code.

         In order for the defendant to be found guilty of
      that charge, the Government must prove each of the
      following elements beyond a reasonable doubt: First,
      the defendant intentionally struck or wounded
      George Jeffries; second, the defendant acted with the
      specific intent to do bodily harm to George Jeffries;
      and, third, the defendant used a prison-made knife.

         A prison-made knife is a dangerous weapon if it
      is used in a way that is capable of causing death or
      serious bodily injury.2

(Emphasis added.) Smith objected to the instructions, con-
tending that the third element usurped the jury’s role as finder
of fact as to whether the knife qualified as a “dangerous
weapon.”

   The jury acquitted Smith of attempted murder but con-
victed him of assault with a dangerous weapon. The court
sentenced Smith to 100 months in prison to run consecutively
with his undischarged term of imprisonment, followed by
three years of supervised release. Smith timely appealed,
arguing in part that the district court’s jury instruction had
improperly charged the jury to find only that Smith commit-
ted assault with a prison-made knife, rather than assault with
a dangerous weapon, effectively relieving the government of
the burden to prove the prison-made knife was a dangerous
weapon.
  2
    Model Criminal Jury Instruction 8.5 has since been amended to correct
the defect raised by this appeal. As of April 2008, that instruction now
requires the jury to find “[t]hird, the defendant used a dangerous weapon”
and explains that a particular object “is a dangerous weapon if it is used
in a way that is capable of causing death or serious bodily injury.” 9th Cir.
Model Crim. Jury Instr. 8.5 (2008) (emphasis added).
4332                 UNITED STATES v. SMITH
                               II.

                               A.

   We review de novo the legal sufficiency of jury instruc-
tions. United States v. Romo-Romo, 246 F.3d 1272, 1274 (9th
Cir. 2001).

                               B.

   [1] “[T]he Due Process Clause of the Fourteenth Amend-
ment requires that the prosecution prove beyond a reasonable
doubt every fact necessary to establish each element of the
crimes charged.” Mejia v. Garcia, 534 F.3d 1036, 1042 (9th
Cir. 2008) (citing In re Winship, 397 U.S. 358, 364 (1970)),
cert. denied, 129 S. Ct. 941 (2009). A defendant is therefore
deprived of constitutional due process when the jury is not
properly instructed that the government bears the burden of
proving guilt beyond a reasonable doubt on each element of
the crime. Middleton, 541 U.S. at 437. Here, the trial court
stated that to support a conviction, the jury needed to find “the
defendant used a prison-made knife.” Although the court then
defined under what circumstances a prison-made knife consti-
tutes a dangerous weapon, the instructions did not unambigu-
ously require the jury to find the prison-made knife was, in
fact, a dangerous weapon. We therefore conclude there is a
“reasonable likelihood” the trial judge’s instructions “misled”
the jury to believe they did not have to determine beyond a
reasonable doubt that the prison-made knife was a dangerous
weapon.

   [2] Not all constitutional errors require reversal, however.
The Supreme Court has specifically recognized that omitting
an offense element from a jury instruction is “ ‘simply an
error in the trial process itself’ ” and not a “ ‘defect affecting
the framework within which the trial proceeds.’ ” Neder, 527
U.S. at 8 (quoting Arizona v. Fulminante, 499 U.S. 279, 310
(1991)). Because such an error is not “structural,” it “does not
                    UNITED STATES v. SMITH                 4333
necessarily render a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.” Id. at
8-9.

   Non-structural constitutional errors like the one at issue
here are therefore subject to harmless error review. See Chap-
man v. California, 386 U.S. 18 (1967). When “a reviewing
court concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelming evi-
dence, such that the jury verdict would have been the same
absent the error, the erroneous instruction is properly found to
be harmless.” Neder, 527 U.S. at 17; see also Gracidas-
Ulibarry, 231 F.3d at 1197 (error is harmless if “we conclude
that it is ‘clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error’ ”
(quoting Neder, 527 U.S. at 18)). If the error is harmless, we
will affirm the conviction regardless of whether the instruc-
tion omitted or incorrectly described an element of the
offense. See Neder, 527 U.S. at 9-10; cf. United States v. Lar-
son, 495 F.3d 1094 (9th Cir. 2007) (en banc) (affirming
despite an acknowledged Confrontation Clause error because
the error was harmless), cert. denied, 128 S. Ct. 1647 (2008).

  Notwithstanding the defect in the trial court’s instructions
—and based on the evidence and argumentation actually pre-
sented to the jury—we hold it is clear beyond a reasonable
doubt that any rational jury would have found Smith guilty
even absent the error.

  [3] An object is a dangerous weapon within the meaning of
18 U.S.C. § 113(a)(3) if it is either “inherently dangerous” or
otherwise “ ‘used in a manner likely to endanger life or inflict
great bodily harm.’ ” United States v. Riggins, 40 F.3d 1055,
1057 (9th Cir. 1994) (quoting United States v. Guilbert, 692
F.2d 1340, 1343 (11th Cir. 1982) (per curiam)) (finding a
“belt” and a “shoe” to be dangerous weapons given “the man-
ner in which the object[s] w[ere] used”). Inherently dangerous
weapons, or “ ‘dangerous weapons per se,’ ” are “ ‘obviously
4334                UNITED STATES v. SMITH
dangerous’ ” objects such as “ ‘guns, knives, and the like.’ ”
Id. (quoting Guilbert, 692 F.2d at 1343). Although we have
not previously defined “great bodily harm,” we find guidance
in the definition of “serious bodily injury” in § 113(b)(2)
(incorporating by reference the definition of “serious bodily
injury” in § 1365(h)). Therefore, we hold that “great bodily
harm” is any harm that involves “(A) a substantial risk of
death; (B) extreme physical pain; (C) protracted and obvious
disfigurement; or (D) protracted loss or impairment of the
function of a bodily member, organ, or mental faculty.” See
18 U.S.C. §§ 113(b)(2), 1365(h)(3).

   [4] Here, “overwhelming and uncontradicted evidence at
trial” indicated both that the prison-made knife was inherently
dangerous and that it was used in a manner that risked great
bodily harm to Jeffries. See United States v. Hollis, 490 F.3d
1149, 1157 (9th Cir. 2007) (holding that jury instruction
errors are harmless when there is “overwhelming and uncon-
tradicted evidence at trial” concerning the omitted element).

   [5] It is undisputed that the knife was formed by melting
Styrofoam meal trays into a hard, flat, six-inch-long shank,
which was sharpened to a dagger-like point. Nisperos pro-
vided uncontradicted expert testimony that the knife did cause
“full skin thickness” lacerations about Jeffries’s head and
face, and that it could have caused “very fatal injuries.” Smith
did not challenge these expert conclusions on cross-
examination and, as his counsel conceded at oral argument,
entered no evidence at trial to rebut a conclusion that the
shank was a dangerous weapon. There is therefore no reason-
able doubt that any rational jury would have found that the
prison made knife at issue here—designed for, and capable of,
inflicting great bodily harm—was an inherently dangerous
weapon within the meaning of 18 U.S.C. § 113(a)(3).

  [6] It is also clear beyond a reasonable doubt that any ratio-
nal juror would have found Smith used the prison-made knife
in a manner likely to inflict extreme physical pain, cause
                         UNITED STATES v. SMITH                          4335
obvious disfigurement, or impair the function of a bodily
organ. While Jeffries did not require hospitalization, he sus-
tained “very extensive injur[ies],”3 including two lacerations
penetrating the entire thickness of his skin about his head and
face. He also nearly lost an eye: Smith’s counsel conceded at
oral argument that the evidence established that the ten centi-
meters long laceration within the fold of Jeffries’s inner eye-
lid was caused by the shank and that, if Smith’s stroke had
“been more precisely targeted,” Jeffries could have lost the
eye and thereby sustained serious bodily injury.4 Given the
evidence before the jury regarding the severity and location of
Jeffries’ injuries, it is clear beyond a reasonable doubt that
any rational juror would have found that Smith’s specific use
of the prison-made knife was capable of causing serious bod-
ily injury.

   [7] Whether the jury found Smith did not intend to kill Jef-
fries,5 and whether Smith did in fact inflict great bodily harm
  3
     Although Nisperos checked a box on his incident report indicating that
Jeffries’s extensive injuries required only “minor first aid,” his testimony
indicates that if a patient does not have “a lot of blood loss [or] organ
damage” requiring “outside hospital[ization],” the patient will be treated
at the prison with “minor first aid,” including, for example, the suturing
of lacerations. The only reasonable inference to be drawn from the inci-
dent report, therefore, is that Jefferies’s injuries were not so severe that he
required emergency hospital care for extreme blood loss or organ damage.
   4
     While Smith’s appellate counsel’s admission does not constitute evi-
dence in the record, it does constitute a concession about the evidence in
the record: that it left the jury with no reasonable doubt that the shank
caused the injury on Jeffries’s eyelid. This conclusion has never been dis-
puted at any point in the long history of this case. Thus while we agree
with the dissent’s characterization of “[o]ur task in conducting the harm-
less error analysis” here, [Dissent at 4342 n.2], we note further that the
task requires us to refrain from conjuring factual disputes that were never
presented to the jury, that are unsupported by the evidence, and that have
accordingly been waived in these proceedings by competent counsel. We
must consider the trial Smith actually had, and not one he might hypotheti-
cally receive on remand.
   5
     Smith’s acquittal on the attempted murder charge does not suggest the
jury “did not believe that the object was used in the manner the prosecutor
4336                     UNITED STATES v. SMITH
within the meaning of the law, are both immaterial to whether
Smith used the shank in a manner that made it likely that Jef-
fries would suffer such harm. As the dissent itself acknowl-
edges, “Smith struck him with a sharpened object in a
downward motion with a high degree of force” about his face,
head, and shoulders, [Dissent at 4342], causing, in Nisperos’s
words, “very extensive injur[ies].” Those injuries demonstrate
that Smith used the shank in a manner that seriously risked
blinding Jeffries in his right eye and otherwise inflicting
extreme physical pain. See Riggins, 40 F.3d at 1057 (belt and
shoe were dangerous weapons where defendant beat child “as
hard as she could” and expert testified victim could have suf-
fered severe injury or death, despite fact that victim “only suf-
fered welts and bruises”). The overwhelming and
uncontradicted evidence therefore leaves no doubt that
Smith’s use of the weapon was “ ‘likely to . . . inflict great
bodily harm’ ” upon Jeffries. Id. at 1057 (quoting Guilbert,
692 F.2d at 1343).

   Smith nevertheless argues the error in the jury instructions
was not harmless because the evidence demonstrating the
prison-made knife was a dangerous weapon was both “under-
whelming” and “contested.” Neither claim is persuasive.
Although Smith contested Nisperos’s certification as an
expert, he never once challenged any of Nisperos’s unambig-
uous expert opinions about the nature of the shank or the
extent of Jeffries’s injuries.

  Smith points to Lieutenant Bengford’s testimony that the
unaltered Styrofoam food trays from which the shank was

suggested or that it did not believe that the object was, as Nisperos testi-
fied, capable of causing ‘very fatal injuries’ (or both).” [Dissent at 4344].
Smith’s acquittal of “Assault with intent to commit murder,” 18 U.S.C.
§ 113(a)(1), coupled with his conviction for “Assault with a dangerous
weapon, with intent to do bodily harm,” 18 U.S.C. § 113(a)(3), demon-
strates only that the jury did not believe he intended to kill Jeffries. It says
nothing at all about either the latent capabilities of the prison-made knife
or whether it was used in a manner likely to inflict great bodily harm.
                    UNITED STATES v. SMITH                     4337
fashioned were “thin, very thin plastic” and “would not be
perceived as a possible weapon or a potential weapon” to
argue the jury could have found the shank was not a danger-
ous weapon. But this testimony was unambiguously elicited
for the purpose of casting doubt on whether Smith had him-
self melted the trays to create the shank, not whether the
shank was indeed a dangerous weapon. In fact, the exchange
between Smith’s counsel and the prison official on this issue
concluded as follows:

    Q:   [W]as [there] evidence consistent with creating
         a weapon in Mr. Smith’s cell . . . ?

    A:   . . . . So, no, if a tray was—because they’re thin,
         very thin plastic, these common-fare trays,
         where the meat item comes in. It’s only about
         a three-by-five-inch piece of plastic. So it’s not
         considered, in itself, as a potential weapon.

    Q:   But when it’s melted down or burnt, it is a
         weapon; correct?

    A:   When you accumulate a few of those, you could
         put them together and melt it down into a
         weapon, yes.

    Q:   Okay. And in this case, there was no evidence
         that was consistent or showed that Mr. Smith
         had created this weapon in his cell; correct?

(Emphasis added.) Thus not only did Smith never submit any
evidence or argue before the jury that the prison-made knife
was not a dangerous weapon, but his counsel’s questions
assumed (if not conceded) that it was a “weapon.” In fact,
throughout the entire three-day trial, Smith’s counsel consis-
tently referred to the implement at issue here as a “knife” and
4338                    UNITED STATES v. SMITH
a “shank”—words that both colloquially connote inherent dan-
gerousness.6

                                    C.

   [8] In the absence of any evidence or argument before the
jury to contest the government’s overwhelming case, it is
clear beyond a reasonable doubt that any rational juror would
have found the prison-made knife was a dangerous weapon
within the meaning of 18 U.S.C. § 113(a)(3), regardless of
whether the jury instructions were constitutionally defective.

                                   III.

                                    A.

   Smith also challenges the terms and conditions of his sen-
tence. “ ‘We review de novo the district court’s interpretation
of the United States Sentencing Guidelines, review for clear
error the district court’s factual determinations, and review for
abuse of discretion the district court’s applications of the
Guidelines to the facts.’ ” United States v. Gomez-Leon, 545
F.3d 777, 782 (9th Cir. 2008) (alteration omitted) (quoting
United States v. Holt, 510 F.3d 1007, 1010 (9th Cir. 2007)).
“We must reverse if the district court committed a significant
procedural error, such as incorrectly calculating the advisory
Guidelines’ sentencing range.” Id. at 782-83 (citing Gall v.
United States, 128 S. Ct. 586, 597 (2007); United States v.
Carty, 520 F.3d 984, 991-93 (9th Cir.) (en banc), cert. denied,
128 S. Ct. 2491 (2008)).
  6
   See Webster’s New International Dictionary 1249, 2087, 2589 (3d ed.
2002) (defining a “knife” as “a [weapon] consisting of a sharp-edged
blade provided with a handle”; a “weapon” as “something (as a club,
sword, gun, or grenade) used in destroying, defeating, or physically injur-
ing an enemy”; and a “shank” as a “knife”).
                        UNITED STATES v. SMITH                       4339
                                    B.

   [9] As a condition of his supervised release, Smith was
required to submit to an unspecified number of non-treatment
drug tests. The district court did not state the maximum num-
ber of drug tests Smith was required to take, and the govern-
ment concedes that this failure constituted an impermissible
delegation of the court’s statutory duty under 18 U.S.C.
§ 3583(d). See United States v. Stephens, 424 F.3d 876, 883-
84 (9th Cir. 2005).7

   [10] Smith argues further that the district court applied the
wrong standard to his request for concurrent, rather than con-
secutive, sentences. The government has also conceded that
the district court erroneously consulted U.S.S.G. § 5G1.3(a),
rather than U.S.S.G. § 5G1.3(c), when it denied Smith’s
request for concurrent sentences. Because “the sentence
imposed . . . [was] a result of an incorrect application of the
Guidelines,” and we cannot say that “the error did not affect
the district court’s selection of the sentence imposed,” a “re-
mand is required under § 3742(f)(1).” Williams v. United
States, 503 U.S. 193, 202-03 (1992).

   Accordingly, we AFFIRM Smith’s conviction, VACATE
the sentence imposed, and REMAND for resentencing as to
the conditions of his supervised release and the decision to
impose Smith’s sentence concurrently, partially concurrently,
or consecutively to his undischarged term of imprisonment.

 Conviction AFFIRMED;                      sentence        VACATED;
REMANDED for resentencing.
  7
    Our conclusion here has no bearing on the continued validity of United
States v. Garcia, 522 F.3d 855 (9th Cir. 2008), where the district court
directed one of the defendants to “ ‘submit to one drug test within 15 days
of release from imprisonment and at least two periodic drug tests thereaf-
ter, as determined by the court.’ ” Id. at 860 (emphasis added). Here, as
in Stephens, the number of tests was to be set “by the probation officer.”
Stephens, 424 F.3d at 883.
4340                     UNITED STATES v. SMITH
BERZON, Circuit Judge, with whom SCHROEDER,
REINHARDT, WARDLAW, and PAEZ, Circuit Judges, join,
dissenting:

   I agree with the majority that the jury instructions given in
this case were erroneous, because they relieved the govern-
ment of its burden of proving that the object in question was
a “dangerous weapon” within the meaning of the federal
assault statute. The given instructions purported to define
“dangerous weapon,” but, critically, failed to instruct the jury
that it must find, as an element of the offense — and, there-
fore, beyond a reasonable doubt — that Smith used a danger-
ous weapon. Given that error and the trial record, I cannot
agree with the majority that it is clear beyond a reasonable
doubt that a rational jury would have returned the same ver-
dict had a proper instruction been given. See Chapman v. Cal-
ifornia, 386 U.S. 18, 23 (1967). I therefore respectfully
dissent.

   We have held that an object is a “dangerous weapon”
within the meaning of 18 U.S.C. § 113(a)(3) if it is “danger-
ous per se” or “used in a manner likely to endanger life or
inflict great bodily harm.”1 United States v. Riggins, 40 F.3d
  1
    I am not at all sure that this standard is an appropriate interpretation of
the statute. Were the issue before us, I would probably conclude that a
“dangerous weapon” must be an object designed to injure someone
through the use of force, not an object — like a shoe or a pot or a chair
— that could seriously injure someone but is not meant for or likely to be
used for that purpose. Cf. Medley v. Runnels, 506 F.3d 857, 863-64 (9th
Cir. 2007) (en banc) (recognizing that the California statute in question
requires that a “firearm” be “designed to be used as a weapon”). It seems
evident to me that a “weapon” describes a specific kind of object, not any
object that can injure someone. Congress’s purpose in providing an
enhancement for use of a dangerous weapon, I would likely conclude, was
to deter possession of, access to, and use of objects particularly dangerous
in themselves, not the use of everyday objects that are not meant as objects
of violence but can be used for that purpose. In other words, Congress
wanted to deter people from having and using guns, switchblades, and
                         UNITED STATES v. SMITH                         4341
1055, 1057 (9th Cir. 1994) (quoting United States v. Guilbert,
692 F.2d 1340, 1343 (11th Cir. 1982)). For objects that cannot
“obviously” be described as dangerous, Riggins, 40 F.3d at
1057, then, a conviction under § 113(a)(3) must rest not on
the object’s abstract capabilities, but instead on evidence that
the accused used the object during the commission of an
assault in a seriously endangering manner. We have therefore
emphasized that determining whether an object was so used
in a particular case is a fact-intensive inquiry reserved for the
jury. See id.

   The erroneous jury instructions removed this critical — and
dispositive — issue of fact from the jury. Smith’s defense at
trial questioned the dangerousness of the Styrofoam “prison-
made knife” by attacking its inherent capabilities, by empha-
sizing the relatively minor extent of the injuries it allegedly
caused, and by contesting the prison guard witnesses’ version
of how it was used. Unlike the majority, I cannot say that the
evidence of the object’s dangerousness, either inherently or as
it was used, was so overwhelming that the jury instructions’
failure to direct the jury to decide this critical issue of fact was
harmless beyond a reasonable doubt.

  If anything, the bulk of the testimony at trial reasonably
suggested that the prison-made knife, as used during the alter-
cation, was unlikely to cause serious bodily injury. The jury

brass-knuckles, but not from wearing shoes, cooking in pots, or sitting in
chairs and then deciding to use them to hurt someone. The use of everyday
objects to exert additional force does not seem sufficiently different from
throwing a good punch to come within the statutory language or Con-
gress’s purpose.
   There has been no direct challenge in this case, however, to the Riggins
line of cases holding otherwise. Also, an appropriately instructed jury
probably could have found that the prison-made knife falls on the “danger-
ous weapon” side of the line I suggest, as it was at least designed to inflict
injury, whether capable of doing so or not. I therefore do not dissent on
this ground.
4342                     UNITED STATES v. SMITH
heard from two correctional officers who observed the fight
in the prison yard. Both officers testified that while Jeffries
was restrained, Smith struck him with a sharpened object in
a downward motion with a high degree of force. One officer
offered a more specific account: he testified that Smith struck
Jeffries in the small of his back “really forcefully . . . it looked
like he was putting all of his effort into it.” But the testimony
also was that the object broke under that pressure and that,
despite Smith’s use of his utmost force, the injuries to Jef-
fries’s back required only minor first aid. Defense counsel
emphasized this point at closing. Thus, it would have been
reasonable for the jury to conclude that the object, even when
used as violently as possible, was capable of causing only
minor injuries.

  True, Jeffries’s physical examination after the incident
revealed a laceration on his right eyelid. There was no testi-
mony, however, that Smith directed the prison-made knife
towards Jeffries’s face, nor any testimony, from Nisperos, the
medical examiner, or any one else, that Jeffries “nearly lost an
eye.”2 Maj. Op. at 4335. Nor, contrary to the majority’s
   2
     Unlike the majority, I do not understand Smith’s appellate counsel’s
statements at oral argument as concessions about the jury’s likely under-
standing of the record in this case, and would not rely on them even if I
did so understand them. Our task in conducting the harmless error analysis
is to determine whether every member of the jury hearing the evidence in
this case would have concluded, beyond a reasonable doubt, that Smith
used the prison-made knife in a manner likely to inflict great bodily harm.
See Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (“[T]he question
[Chapman] instructs the reviewing court to consider is not what effect the
constitutional error might generally be expected to have upon a reasonable
jury, but rather what effect it had upon the guilty verdict in the case at
hand.”). For that reason, Smith’s appellate counsel’s statements, made
nine years after the fact, are irrelevant to our inquiry, as they reflect only
her assessment of the same trial evidence before us now. Neither her char-
acterization of the testimony, nor, for that matter, any post-trial factual
concession about what actually happened during the altercation, bear on
our task. The only question posed is whether this jury, in its assessment
of the trial evidence, would have reached the verdict of guilty beyond a
reasonable doubt had a correct instruction been given.
                    UNITED STATES v. SMITH                  4343
account, see Maj. Op. at 4330, 4334, did Nisperos testify that
the injuries to Jeffries’s eyelid resulted from the prison-made
knife or the use of any other sharp object. In fact, the medical
term Nisperos used to describe the injury, “laceration,” signi-
fies “a torn or jagged wound,” as opposed to a clean cut, sug-
gesting that the wound was not inflicted by a sharp object. See
PDR Medical Dictionary 958 (2d ed. 2000); see also http://
www.healthatoz.com/healthatoz/Atoz/common/standard/
transform.jsp?requestURI=/healthatoz/Atoz/ency/wounds.jsp
(distinguishing “cuts,” “slicing wounds made with a sharp
instrument,” from “lacerations,” which are “produced by a
tremendous force against the body . . . from an external source
like a punch”). There was testimony that in addition to strik-
ing Jeffries with the sharpened object, Smith struck him with
his clenched fist. The photographic depiction of Jeffries’s
injury, from my lay perspective, reveals nothing more than a
pool of blood above his right eye, hardly a showing sufficient
to support the conclusion that a stabbing is the only plausible
explanation for the injury. The jury reasonably could have
concluded, instead, that the injury to the eyelid was the result
of punches thrown by Smith, not of the prison-made knife.

   In short, in the absence of any testimony establishing that
Smith directed the prison-made knife toward Jeffries’s eye, I
cannot conclude that it is clear beyond a reasonable doubt
that, had they been properly instructed, every member of the
jury would have found beyond a reasonable doubt that Smith
used the object in a manner likely to cause great bodily harm.

   The medical examiner’s testimony that the object “could
cause very fatal injuries” does not convince me otherwise.
Nisperos, a medical professional who had twice failed the
American medical doctor board exams and had never before
testified as a forensic expert, testified that the object could
cause fatal injuries if directed at a vital organ. The jury could
well have decided not to rely on Nisperos’s opinion, given his
less-than-impressive medical background, the vagueness of
his testimony about the dangerousness of the object, and the
4344                 UNITED STATES v. SMITH
contradiction between his very general assertion and the
record fact that the object broke when used on the victim’s
back, after causing no more than minor lacerations.

   Moreover, Nisperos’s testimony is only marginally perti-
nent to the facts of this case, because there was paltry evi-
dence that Smith attacked Jeffries in any vital organ. Defense
counsel stressed this point in closing argument, in part to
defend against the attempted murder charge. As the definition
the jury should have been given focuses on how the object
was used, the jury could have viewed Nisperos’s testimony as
off-to-the-side on the facts of this case.

   Tellingly, the jury acquitted Smith on the attempted murder
charge, suggesting either that it did not believe that the object
was used in the manner the prosecutor suggested or that it did
not believe that the object was, as Nisperos testified, capable
of causing “very fatal injuries” (or both). Either way, the
jury’s actual verdict indicates that it did not believe a great
deal of the evidence the majority relies on as indisputably
supporting the assault with a dangerous weapon verdict.

   Finally, although Smith’s counsel, as well as the prosecu-
tors, referred to the object as a “weapon” and a “knife,” the
jury was required to find that the object is a “dangerous
weapon,” not just any weapon. As the majority observes, the
use of such words may connote dangerousness, but this obser-
vation only highlights the prejudicial effect of failing to give
a correct jury instruction on dangerousness. Under the case
law, dangerousness is a critical question for the jury, not for
counsel or the court.

   I cannot conclude that the failure to give the correct instruc-
tion on dangerousness was harmless beyond a reasonable
doubt. I respectfully dissent.
