                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-6-2001

United States v. McCulligan
Precedential or Non-Precedential:

Docket 00-2562




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"United States v. McCulligan" (2001). 2001 Decisions. Paper 148.
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Filed July 6, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2562

UNITED STATES OF AMERICA

v.

ROBERT MCCULLIGAN
       Appellant

ON APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Crim. No. 99-cr-00410
District Judge: The Honorable Edmund V. Ludwig

Argued: April 24, 2001

Before: BARRY, AMBRO, ALDISER T, Circuit Judges

(Filed: July 6, 2001)

       Stephen P. Patrizio, Esquire
       Christopher D. Warren, Esq.
        (Argued)
       Dranoff & Patrizio
       117 South 17 Street
       Architects Building, Suite 1600
       Philadelphia, Pennsylvania 19103

        Attorney for Appellant
       Craig D. Margolis, Esquire (Argued)
       Office of the United States Attorney
       615 Chestnut Street
       Philadelphia, Pennsylvania 19106

        Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

Appellant contends that he was convicted of one crime
but sentenced for another. We agr ee, and will remand for
resentencing.

I.

Several Deputy U.S. Marshals arrived at an apartment
complex in West Norriton, Pennsylvania on June 17, 1999
to arrest Robert McCulligan, who was wanted for a violation
of supervised release. As McCulligan attempted to drive his
vehicle out of an entrance to the complex, Deputies
O'Donnell and Kurtz blocked his path with their vehicle and
ordered him to stop. McCulligan responded by driving
rapidly in reverse. The deputies pursued, and the two
vehicles collided when McCulligan apparently attempted to
turn around. McCulligan later claimed that the deputies
rammed his vehicle; the deputies contended McCulligan
rammed theirs. Either way, the force of the impact locked
the vehicles' front bumpers together at a r oughly
perpendicular angle, preventing McCulligan fr om
proceeding. As the deputies exited their vehicle and Deputy
O'Donnell moved toward the driver's side door of
McCulligan's vehicle, however, McCulligan again put his
vehicle in reverse. Unable to break fr ee, McCulligan's
vehicle began to fish-tail dangerously as its wheels spun;
fortunately, it did not strike either deputy. Deputy Kurtz
approached McCulligan's vehicle, punched out the driver's-
side window with his hand and gun, and order ed
McCulligan to stop. McCulligan surrender ed.

McCulligan was charged with assault on Deputies
O'Donnell and Kurtz under 18 U.S.C. S 111(a), two counts

                                2
of assault on a federal officer with a deadly or dangerous
weapon under 18 U.S.C. S 111(b), and destruction of
government property under 18 U.S.C. S 1361. At trial, the
government argued that McCulligan purposefully collided
with the deputies' vehicle and would have seriously injured
Deputy O'Donnell had his vehicle broken fr ee while fish-
tailing. The jury, however, found McCulligan guilty only of
the S 111(a) assault on Deputy O'Donnell and destruction of
government property, a result which, as the District Court
remarked, indicated that the jury was "unpersuaded by the
government's version of the collision." United States v.
McCulligan, No. 99-410-01, slip op. at 4 (E.D. Pa. Nov. 3,
2000).

At sentencing, McCulligan argued that his actions
amounted to nothing more than "simple assault" under
S 111(a), which carries a maximum prison ter m of one year.
Section 111(a) also provides for three years' imprisonment
in "all other cases" of assault (hereinafter "non-simple
assault").1 The District Court found that "the fish-tailing
movements of defendant's car when O'Donnell was standing
close by are enough to support an aggravated assault,
_________________________________________________________________

1. 18 U.S.C. S 111 states:

        (a) In general. Whoever--

(1) forcibly assaults, resists, opposes, impedes, intimidates, or
interferes
with any [federal officer] 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
[federal officer] on account of the per formance 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 in all other cases, be fined under this
        title or imprisoned not more than three years, or both.

        (b) Enhanced penalty. Whoever, in the commission of any acts
        described in subsection (a), uses a deadly or danger ous 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 ten
       years, or both.

                                3
albeit not necessarily with a deadly or danger ous weapon."
McCulligan, Slip Op. at 13. The District Court then used the
three-year maximum term from the"all other cases"
provision in determining McCulligan's sentencing range
under the Sentencing Guidelines.

McCulligan now appeals the District Court's judgment.
We have jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C.
S 3742(a). We exercise plenary r eview over questions of law
as well as the District Court's application of the Sentencing
Guidelines. United States v. Williams, 235 F.3d 858, 861
(3d Cir. 2000).

II.

The United States Criminal Code describes the two
crimes at issue -- simple assault and "all other cases" of
assault -- in a single statutory subsection, 18 U.S.C.
S 111(a). Under Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348 (2000), the fact that various offenses are
grouped together or share a particular label is irrelevant.
Instead, the Apprendi Court held, except for the fact of a
prior conviction, "any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a r easonable
doubt." Apprendi, 120 S.Ct. at 2362-63. The relevant
inquiry is whether "the required finding expose[s] the
defendant to a greater punishment than that authorized by
the jury's guilty verdict." Id. at 2365. Because non-simple
assault carries a greater statutory maximum than simple
assault, each element of non-simple assault must be
charged in the indictment and proven to a jury beyond a
reasonable doubt.

The District Court instructed the jurors that they were to
find McCulligan guilty upon proof of thr ee elements: (1)
that he forcibly assaulted the person named in the
indictment, (2) that the victim was a federal officer, and (3)
that McCulligan did the acts charged voluntarily and
intentionally. App. at 768, 771-772. The Court further
instructed the jury that "forcible assault" means "any
deliberate and intentional attempt or threat to inflict
physical injury on another person with force or strength,

                               4
when the attempt or threat is coupled with an apparent
present ability to do so . . . A forcible assault may be
committed by a defendant without actually touching,
striking or doing bodily harm to the other person . . . ." Id.
at 768. The government concedes that whatever fact
separates "all other cases" of assault fr om mere "simple
assault," the jury was not asked to find it. Appellee's Br. at
41-42. Any sentence greater than one year on the S 111
count thus represents error under Apprendi.

Preliminarily, we must respond to the government's
contention that because McCulligan failed to object to any
Apprendi error either at trial or during sentencing, we
review only for plain error. W e surely would not have
expected McCulligan to object to the "simple assault" jury
charge at issue in this case; he had no r esponsibility and
certainly no incentive to point out that the gover nment
could have attempted to win a conviction on some gr eater
offense. United States v. Candelario, 240 F.3d 1300, 1305
(11th Cir. 2001). No error occurr ed from McCulligan's
perspective until the sentencing stage, when, although not
explicitly invoking Apprendi, he in fact objected to the
Court's determination that his offense of conviction was
something greater than simple assault.2
_________________________________________________________________

2. McCulligan's attorney argued at sentencing that the jury convicted his
client of simple assault and that he could not be sentenced for anything
more, as this colloquy illustrates:

       [Counsel]: I don't believe that the Court can impose a sentence of
       more than one year in this case, that being the statutory
       maximum of a finding based upon a simple assault.
       . . .

       The Court: Well, wait a moment. Wasn't there a guilty verdict as to
       an assault on a federal officer?

       [Counsel]: There was, your honor .

       The Court: And you're saying the maximum statutory sentence is
       one year?

       [Counsel]: If this Court finds that it was a simple assault as
       opposed to an aggravated assault it's a one-year
       maximum, statutory maximum . . . .

                               5
To preserve the right to appeal a district court ruling, "it
is sufficient that a party, at the time the ruling. . . is made
or sought, makes known to the court the action which that
party desires the court to take . . . and the grounds
therefor." Fed. R. Crim. P. 51. McCulligan did not mention
Apprendi, but, rather, ar gued that the facts and the jury's
findings fit the definition of one crime and not another, and
that he should be sentenced under the correct statutory
maximum. When one contends that he or she is about to
be sentenced for a crime of which he or she was not
convicted -- an error by any standard-- intonation of the
word "Apprendi" is unnecessary to present the issue
squarely to the court. In any event, as our analysis below
will indicate, McCulligan's sentence would not survive
either harmless error or plain err or review.

The government argues that the District Court's error in
making a determination that should have gone to the jury
is not reversible for two reasons. First, the government
contends that McCulligan's offense of conviction actually
was non-simple assault despite the jury char ge and that
the failure to properly instruct the jury was harmless error
under the Supreme Court's decisions in Johnson v. United
States, 520 U.S. 461 (1997) and Neder v. United States, 527
U.S. 1 (1999). Second, the government ar gues that even if
McCulligan was convicted of the lesser assault crime, the
District Court's contrary findings of fact at sentencing did
not implicate Apprendi. Although the Court's finding of
"aggravated assault" raised McCulligan's sentencing range
beyond the one-year maximum for his simple assault
count, the argument goes, his actual sentence did not fall
outside the ten-year maximum he faced on the destruction
of government property count. We address each argument
in turn.
_________________________________________________________________

App. at 798-99; see also App. at 822 (McCulligan's attorney stating once
again that "the statutory max should be at most one year."). While
counsel seems to have assumed that it was the Court's duty to make the
simple/non-simple assault determination rather than the jury's, he was
clear in stating that the facts pointed to only one resolution.

                               6
III.

In Neder, the Supreme Court examined whether
overwhelming evidence of a particular element of an offense
can compensate for a court's failure to submit that element
to the jury. The trial court in Neder neglected to instruct
the jury in a tax fraud prosecution that conviction required
a finding of material falsehood. The defendant was found
guilty on the incomplete instructions and appealed.
Answering a question it left open in Johnson, the Supreme
Court held that non-structural constitutional err ors,
including the failure to submit an element of a crime to the
jury, are subject to harmless err or review. Neder, 527 U.S.
at 8-15.

By invoking Neder, the government necessarily contends
that McCulligan was, in fact, "convicted" of non-simple
assault despite jury instructions that charged simple
assault. See Neder, 527 U.S. at 15 (framing the question as
whether a defendant's conviction could "stand" because the
error was harmless). Confusion over the actual offense of
conviction seems inevitable where a defendant is charged
and a jury instructed according to a general statute such
as S 111(a) that Apprendi since has shown to encompass
the equivalent of multiple crimes rather than a single crime
with various sentencing factors. We note that this Court
has not yet considered whether Neder applies to a situation
where, unlike in Neder itself, the jury instructions properly
set out the elements of what is essentially a lesser included
offense. We need not unsnarl the intersection of Neder and
Apprendi in the present case, however, because we find no
evidence that could lead a rational jury to find McCulligan
guilty of non-simple assault.

Before a conviction may be sustained despite the
omission of an element from the jury instructions, Neder
demands a "thorough examination of the r ecord" by the
reviewing court:

       If, at the end of that examination, the court cannot
       conclude beyond a reasonable doubt that the jury
       verdict would have been the same absent the err or --
       for example, where the defendant contested the omitted
       element and raised evidence sufficient to support a

                               7
       contrary finding -- it should not find the err or
       harmless.

Neder, 527 U.S. at 19. To make such a determination here,
we must first examine the distinction between the two types
of S 111(a) assault, a question of first impression in this
Court. Once we understand the definition of non-simple
assault, we must search the record for proof "beyond a
reasonable doubt" of that more serious offense.

In the federal scheme (at least, post-Appr endi), SS 111(a)
and 111(b) create three separate of fenses: simple assaults,
other "non-simple" assaults not involving a dangerous
weapon or injury, and assaults that involve a danger ous
weapon or cause injury. See United States v. Nunez, 180
F.3d 227, 233 (5th Cir. 1999) (noting the three crimes).
"Simple" assault is not defined, thus leaving the catch-all
category of "other" assaults similarly without clear
demarcation. We, therefore, start from the well-established
proposition that where Congress fails to specifically define
a term, that term should be interpr eted according to its
common law definition. Moskal v. United States , 498 U.S.
103, 114 (1990); United States v. Turley, 352 U.S. 407, 411
(1957). If research into the common law yields several
competing definitions, courts should look to the r eading
that "best accords with the overall purposes of the statute"
even if it is the minority view. Moskal, 498 U.S. at 116-17.
Furthermore, "Congress' general purpose in enacting a law
may prevail over this rule of statutory construction," id. at
117, and a more "generic, contemporary" definition may
apply where the traditional definition is out of step with
modern criminal justice policy. Taylor v. United States, 495
U.S. 575, 598 (1990). Regarding the statute at issue here,
the Supreme Court has also noted that S 111 should be
construed "to effectuate the congressional purpose of
according maximum protection to federal officers." United
States v. Feola, 420 U.S. 671, 684 (1975).

The government states correctly that, at common law,
there were no degrees of assault or battery. Rather,
"assault" was defined as the "attempt or offer to beat
another, without touching him," 3 Blackstone,
Commentaries at 120, or the "placing of another in
reasonable apprehension of a battery." United States v.

                               8
Ramirez, 233 F.3d 318, 321-22 (5th Cir. 2000) (citing
LaFave & Scott, Substantive Criminal LawS 7.16 (1986)).
"Battery" was defined at common law as the unlawful
beating of another, including "[t]he least touching of
another's person willfully, or in anger." 3 Blackstone,
Commentaries at 120. Battery could rise to the crime of
mayhem where the defendant caused permanent injury. Id.
at 121. Over time, many jurisdictions have come to use the
term "assault" to describe both assaults and batteries.
Rollin M. Perkins and Ronald N. Boyce, Criminal Law 159-
60 (3d ed. 1982); Black's Law Dictionary 114 (6th ed.
1990).

In United States v. Chestaro, 197 F .3d 600 (2d Cir. 1999),
the Second Circuit recognized that the undefined term
"simple assault" also appears in 18 U.S.C.S 113, "which
has been held to `embrace the common law meaning of that
term.' " Chestaro, 197 F .3d at 605 (quoting United States v.
Stewart, 568 F.2d 501, 504 (6th Cir .1978)); see also United
States v. Estrada-Fernandez, 150 F .3d 491, 494 n.1 (5th
Cir. 1998); United States v. Juvenile Male, 930 F.2d 727,
728 (9th Cir. 1991). Applying case law interpreting S 113 to
similar language in S 111, the Chestar o Court found that
"simple assault" is a crime "committed by either a willful
attempt to inflict injury upon the person of another, or by
a threat to inflict injury upon the person of another which,
when coupled with an apparent present ability, causes a
reasonable apprehension of immediate bodily harm." Id. at
605 (quoting United States v. Johnson, 637 F .2d 1224,
1242 n.26 (9th Cir. 1980)). Expanding further upon this
definition, the Second Circuit agreed with the government's
position in that case:

       [F]or practical purposes S 111 cr eates three distinct
       categories of conduct: (1) simple assault, which, in
       accord with the common-law definition, does not
       involve touching; (2) "all other cases," meaning assault
       that does involve contact but does not r esult in bodily
       injury or involve a weapon; and (3) assaults r esulting
       in bodily injury or involving a weapon. We think that
       this is a reasonable construction of the statute, and
       one that gives effect to every part of it.

                                9
Chestaro, 197 F.3d at 606 (emphasis added). The Fifth
Circuit recently accepted this definition in United States v.
Ramirez, 233 F.3d 318 (5th Cir . 2000) (" `[A]ll other cases'
refers to those assaults contemplated by the statute which
do involve physical contact, but do not involve a deadly
weapon or bodily injury."). Under the Chestar o scheme, a
defendant whose conduct did not involve actual contact, a
weapon, or bodily injury could be convicted only of"simple
assault" within the structure of S 111.3

The government contends that the findings in Chestaro
and Ramirez, arguably dicta , were incorrect. As did the
District Court, the government views "simple assault"
through the lens of the Model Penal Code ("MPC"). The MPC
essentially defines "simple assault" as attempting to cause
or causing injury, and "aggravated assault" as attempting
to cause or causing serious injury. MPC S 211.1. The
distinction between these two levels of assault under the
MPC thus relies not on contact, but on the potential for
serious injury. The government notes that the MPC is
widely cited by courts around the country for a variety of
propositions, including, in a general way in one case, as
being useful for interpreting S 111. See United States v.
Duran, 96 F.3d 1495, 1509 (D.C.Cir . 1996) (quoting from
the MPC with regard to S 111 but not examining the
question before this Court).

Contrary to the government's urging, we do not find the
MPC to be an authoritative vehicle for interpr eting simple
assault and other forms of assault under S 111(a). While
modern statutes may present evidence of contemporary
definitions Congress had in mind when crafting S 111, the
_________________________________________________________________

3. The government argues that some courts have upheld convictions for
simple assault in cases that unambiguously included a touching. See,
e.g., United States v. Bayes, 210 F .3d 64, 69 (1st Cir. 2000) (nonviolent
but sexually offensive groping can be"simple assault" under S 113(a)(5));
United States v. Smith, 812 F.2d 161 (4th Cir. 1987) (upholding
conviction for simple assault under S 113(a)(5) on facts including a non-
injurious touching). These cases do not necessarily cut against the
conclusion in Chestaro. "[T]he fact that the battery is actually committed
does not result in a merger therein of the assault; proof of a battery
supports a conviction for assault." United States v. Guilbert, 692 F.2d
1340, 1343 (11th Cir. 1982) (citation omitted).

                               10
wording of S 111 does not bear out the pr oposition that its
drafters envisioned an MPC-like scheme. Congr ess did not
choose to use language such as "assault" and"more serious
assault," "assault" and "aggravated assault," or "minor
assault" and "major assault." Instead, Congress chose the
terms "simple assault" and "all other" assaults, which seem
to suggest, if not explicitly refer to, the traditional notion of
assault as a crime separated from battery accor ding to the
presence or absence of touching.

The similar language of 18 U.S.C. S 113, r elied upon in
Chestaro, lends support to the conclusion that "simple
assault" equates with traditional common-law assault.
Specifically, Congress appeared to r ecognize a boundary
based on contact in S 113 by dividing assaults involving
striking or beating in S 113(a)(4) from"simple assaults" in
S 113(a)(5).4 Rather than set up broad categories of assault
_________________________________________________________________

4. 18 U.S.C. S 113(a) states:

       (a) Whoever, within the special maritime and territorial
jurisdiction
       of the United States, is guilty of an assault shall be punished as
       follows:

       (1) Assault with intent to commit murder , by imprisonment for not
       more than twenty years.

       (2) Assault with intent to commit any felony, except murder or a
       felony under chapter 109A, by a fine under this title or
       imprisonment for not more than ten years, or both.

       (3) Assault with a dangerous weapon, with intent to do bodily harm,
       and without just cause or excuse, by a fine under this title or
       imprisonment for not more than ten years, or both.

       (4) Assault by striking, beating, or wounding, by afine under this
       title or imprisonment for not more than six months, or both.

       (5) Simple assault, by fine under this title or imprisonment for
not
       more than six months, or both, or if the victim of the assault is
an
       individual who has not attained the age of 16 years, by fine under
       this title or imprisonment for not more than 1 year, or both.

       (6) Assault resulting in serious bodily injury, by a fine under
this
       title or imprisonment for not more than ten years, or both.

       (7) Assault resulting in substantial bodily injury to an individual
     who has not attained the age of 16 years, by fine under this title
or
     imprisonment for not more than 5 years, or both.

                             11
and battery based on the severity of potential injury as in
the MPC, the various provisions of S 113 call for harsher
punishment for assaults with particular characteristics or
results. As the authors of the MPC explained, the lack of
intermediate grades of assault and battery at common law
led to situations where "attempts to inflict serious bodily
injury were not graded . . . at the level that most
legislatures thought appropriate." MPCS 211.1, Comment
1(c). Legislatures responded by "cr eat[ing] a range of
personal injury offenses focusing upon the means by which
the actor caused or threatened injury, the person upon
whom the injury or threat was inflicted, and the
seriousness of the injury caused or threatened." Id. In
effect, the legislatures referr ed to by the MPC -- including,
it seems, Congress -- used the presence of striking,
weapons, bodily injury, particular intents, and other
specific factors as proxies for potential severity. Remove
these extra ingredients, and one is left with a definition for
"simple assault" that matches the traditional notion of
assault as an attempted battery or the placing of one in
apprehension of immediate harm -- actions that do not
involve contact. We, therefore,find that, under S 111(a),
proof of actual contact is required to sustain a conviction
for any crime beyond simple assault.

The record contains no evidence of actual contact by
McCulligan. Thus, even assuming Neder applies to this
case, any "conviction" for non-simple assault cannot be
salvaged -- the error would not be har mless. The question
remains whether the sentence McCulligan r eceived beyond
the statutory maximum for simple assault, his true offense
of conviction, may be sustained.

IV.

The government contends that because McCulligan faced
a statutory maximum sentence of at least ten years for his
destruction of government property conviction, any error in
sentencing him beyond the one-year maximum for his
simple assault conviction did not affect the outcome of the
proceedings. This argument is familiar to readers of post-
Apprendi drug cases under 21 U.S.C. S 841. In United
States v. Williams, 235 F.3d 858 (3d Cir. 2000), this Court

                                12
held, as have other Courts of Appeals, that while"the
District Court's finding regarding the amount of drugs
substantially increased the possible statutory maximum
sentence under 21 U.S.C. S 841(b)(1), . . . Apprendi is not
applicable [where] the sentence actually imposed [is] well
under the original statutory maximum of 20 years."
Williams, 235 F.3d at 863.

This case is different from W illiams in that here the
government contends the sentence actually imposed was
less than the statutory maximum of a separate count of
conviction. Although we need not decide the issue here, the
argument that mistakes in determining the sentence on one
count may be ignored so long as a greater sentence might
have been imposed on another count seems to be for eclosed
by Apprendi itself:

       [T]he State has argued that even without the trial
       judge's finding of racial bias, the judge could have
       imposed consecutive sentences on counts 3 and 18
       that would have produced the 12-year ter m of
       imprisonment that Apprendi received; Appr endi's
       actual sentence was thus within the range authorized
       by statute for the three offenses to which he pleaded
       guilty. . . . The constitutional question, however, is
       whether the 12-year sentence imposed on count 18 was
       permissible, given that it was above the 10-year
       maximum for the offense charged in that count. The
       finding is legally significant because it incr eased --
       indeed, it doubled -- the maximum range within which
       the judge could exercise his discretion, converting what
       otherwise was a maximum 10-year sentence on that
       count into a minimum sentence. The sentences on
       counts 3 and 22 have no more relevance to our
       disposition than the dismissal of the remaining counts.

Apprendi, 120 S.Ct. at 2354 (emphasis added). The Tenth
Circuit recently cited this language in aS 841 drug case in
which the government argued that a 30-year sentence
should not implicate Apprendi wher e the defendant was
convicted of two counts, each with a 20-year maximum,
because the sentencing court could have run the sentences
consecutively to achieve the 30-year total. United States v.
Jones, 235 F.3d 1231 (10th Cir. 2000). The Jones Court

                               13
responded that the proper concern was "the legality of the
sentences actually imposed, regardless of whether in the
aggregate they are less severe than the sentences that
could have been imposed. We will not per mit our result to
be guided by idle speculation as to the sentence that might
be imposed by the district court on remand." Jones, 235
F.3d at 1238.

The government argues that we need not engage in such
"idle speculation" where the sentence necessarily would be
the same on remand by operation of U.S.S.G.S 5G1.2(d).
Section 5G1.2(d) states, in relevant part:

       [I]f the sentence imposed on the count carrying the
       highest statutory maximum is less than the total
       punishment [as determined under the Guidelines],
       then the sentence imposed on one or more of the other
       counts shall run consecutively, but only to the extent
       necessary to produce a combined sentence equal to the
       total [Guidelines] punishment.

S 5G1.2(d). The government presses on us several cases in
which Courts of Appeals have let stand sentences that,
even absent error, would have been the same as those
which were imposed. See, e.g., United States v. Page, 232
F.3d 536, 544-45 (6th Cir. 2000); United States v. Sturgis,
238 F.3d 956, 960-61 (8th Cir. 2001); United States v.
White, 238 F.3d 537, 543 (4th Cir . 2001).

This case, however, is distinguishable fr om each of those
cases because of the simple fact that McCulligan's sentence
would not have been the same absent the trial court's error,
regardless of S 5G1.2(d). The sentencing courts in Page,
Sturgis, and White each made a drug quantity
determination, which, as noted above, constitutes a
permissible exercise of discretion where the finding of fact
alters the Guidelines calculation but does not r esult in a
sentence exceeding the statutory maximum. Her e, the so-
called "finding of fact" that increased McCulligan's
Guideline range did not involve some variable such as drug
quantity, but the offense of conviction itself. The District
Court erroneously found that McCulligan had been
convicted of a S 111(a) non-simple assault, which is
punishable by a term of imprisonment exceeding one year

                                14
and thus qualifies as a "crime of violence" under U.S.S.G.
S 4B1.2. By operation of the career of fender table at
U.S.S.G. S 4B1.1, this finding increased McCulligan's
criminal history category to VI. Given that McCulligan
actually was convicted of simple assault, which by virtue of
its one-year statutory maximum does not qualify as a crime
of violence, the District Court should have used a criminal
history category of V.5 This correct application of the
Guidelines would have led to a shorter total punishment
range; thus, the reasoning of Page Stur gis, and White along
with the language of S 5G1.2(d) upon which they are based
does not apply.

The government contends that a court may deter mine, by
a preponderance of the evidence, the "of fense statutory
maximum" for purposes of sentencing just as it may
determine drug quantity. We disagr ee. Finding drug
quantity based on evidence such as undisputed lab r esults
is far different than pretending the jury convicted a
defendant of one crime when actually he or she was
convicted of another. Moreover, the Guidelines do not
instruct judges to determine the statutory maxima of
offenses. Rather, the Guidelines state that "Offense
Statutory Maximum . . . refers to the maximum term of
imprisonment authorized for the offense of conviction
. . . ." U.S.S.G. S 4B1.1, Application Note 2. The maximum
sentence faced by a defendant convicted of a particular
crime is set by Congress, not "found" by courts. McCulligan
was convicted of simple assault, and the offense statutory
maximum is accordingly read fromS 111(a). See United
States v. Rogers, 228 F.3d 1318, 1321-22 (11th Cir. 2000)
(holding that, on remand to correct an Apprendi error, the
base offense level derived from the actual drug quantity
_________________________________________________________________

5. The District Court did not examine whether McCulligan's conviction
for destruction of government property under 18 U.S.C. S 1361
constituted a crime of violence. The term"crime of violence" includes
offenses that "involve[ ] conduct that presents a serious potential risk
of
physical injury to another." U.S.S.G.S 4B1.2(a)(2). As the District Court
noted, however, the mix of verdicts on the various counts charged
indicates that the jury did not believe the gover nment's assertion that
McCulligan purposefully rammed into the deputies' vehicle. McCulligan,
Slip. Op. at 4.

                               15
6. United States v. Doggett, 230 F .3d 160 (5th Cir. 2000), which the
government cites in support of its position, is inapposite here. In
Doggett, the defendant's base offense level was 34, derived from a
permissible court finding of drug quantity. A three-level enhancement
was added for two prior felony controlled substance convictions,
resulting in a total offense level of 37. By operation of S 4B1.1, the
defendant's criminal history category was VI. Doggett, 230 F.3d at 166
n.3. Contrary to the government's argument, the career offender table
did not alter the defendant's total offense level in that case. Where the
total offense level already equals or exceeds 37, a determination of the
offense statutory maximum is unnecessary. See U.S.S.G. S 4B1.1.
would not change, but the effect of the "career offender"
provision must be re-evaluated in light of the lower
maximum sentence allowed under the offense of conviction).6

While, even after Apprendi, a sentencing court may make
certain factual determinations as it calculates the sentence
under the Guidelines, a defendant cannot be convicted of
one crime yet sentenced under the Guidelines as though he
or she were convicted of some other crime. United States v.
Knobloch, 131 F.3d 366, 373 (3d Cir . 1997)(finding that
error in the application of the Guidelines af fected the
defendant's "substantial right to suffer no greater an
imposition on his liberty than the Guidelines allow."). We
hold that the District Court, operating without a clear
definition of "simple assault," erred in finding McCulligan's
statutory maximum on the S 111 count to be mor e than
one year.

V.

The jury charge and facts of this case both point to a
conviction for simple assault under S 111(a). The District
Court erroneously determined instead that McCulligan was
convicted under the "all other" assaults pr ovision, and this
error led to a misapplication of the Guidelines. We will
affirm the conviction but remand for r esentencing.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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