                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                      PUBLISH
                                                                          May 12, 2015
                       UNITED STATES COURT OF APPEALS
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
                            FOR THE TENTH CIRCUIT
                        _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee/Cross-
      Appellant,

v.                                                    Nos. 12-2085 & 12-2120

DERRICK IVAN JIM,

      Defendant - Appellant/Cross-
      Appellee.
                      _________________________________

                    Appeal from the United States District Court
                           for the District of New Mexico
                          (D.C. No. 1:10-CR-02653-JB-1)
                      _________________________________

John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public
Defender, with him on the briefs), Denver, Colorado for Defendant Derrick Jim.

Mark T. Baker, Assistant United States Attorney (Kenneth J. Gonzales, United States
Attorney, with him on the briefs), Albuquerque, New Mexico for Plaintiff United States
of America.


Before BRISCOE, Chief Judge, EBEL, and KELLY, Circuit Judges.


EBEL, Circuit Judge.
       A jury convicted Derrick Jim of aggravated sexual abuse occurring in the Navajo

Nation. Jim initially pled guilty to this offense, but later withdrew his plea and proceeded

to trial. On appeal, Jim claims that the trial court erred when it let the Government

present to the jury evidence of the admissions he made in his plea agreement and during

his plea colloquy. Ordinarily, Rule 410 of the Federal Rules of Evidence precludes the

Government from using such evidence against a defendant. But Jim waived his Rule 410

protections as part of the plea agreement underlying his (now withdrawn) guilty plea.

We conclude that the district court did not err in enforcing Jim’s Rule 410 waiver by

allowing the Government to present to the jury Jim’s prior admissions of guilt. We,

therefore, AFFIRM Jim’s convictions.

       In its cross-appeal, the United States challenges Jim’s 360-month prison sentence,

arguing that the district court erred in calculating Jim’s offense level under the sentencing

guidelines. We agree that the district court erred when it held that, in determining

whether a two-offense-level enhancement under U.S.S.G. § 2A3.1(b)(4)(B) for causing

the victim serious bodily injury applied in Jim’s case, the court could not consider any

injuries directly resulting from the sexual abuse for which Jim was convicted. Thus, we

remand for resentencing so the district court can determine, in the first instance, whether

that enhancement under § 2A3.1(b)(4)(B) is warranted in this case and, if so, the impact

of that enhancement on Jim’s sentence.

       Therefore, exercising jurisdiction under 18 U.S.C. § 3742(a) and (b), and 28

U.S.C. § 1291, we AFFIRM Jim’s convictions, but REMAND for resentencing.
                                              2
                                     BACKGROUND

       The evidence, viewed in the light most favorable to the jury’s verdict,1 established

the following: On August 12, 2010, K.T. had a get-together with a few friends at her

home located in the Navajo Nation. One of K.T.’s friends invited Jim. During the

evening, those at the get-together drank alcohol and socialized under K.T.’s carport and

in her driveway.

       After 1:00 a.m., K.T., feeling ill from drinking too much, went inside the house

and laid down on a couch in her living room. Jim followed her inside; locked the door to

the carport and turned off the interior lights; pulled K.T. off the couch, causing her to hit

her head on the floor; dragged her by her ankles down the hallway and into her bedroom;

and, while K.T. fought him, raped her vaginally and anally with his penis. Afterwards,

Jim dragged K.T. into the laundry room, where she was able to fight him off. He then

fled from the house through the exterior laundry room door.

       While all of this was occurring, K.T.’s friends, upon discovering that K.T.’s house

was locked and dark, knocked on the door leading from the carport to the kitchen, rang

the doorbell, and called K.T.’s cell phone, to no avail. After Jim fled, K.T. crawled to the

carport door, where her friends were knocking, and opened the door. She was naked

1
 See United States v. Berry, 717 F.3d 823, 827 (10th Cir.), cert. denied, 134 S. Ct. 495
(2013).
                                              3
from the waist down, bleeding, and crying hysterically. When she was eventually able to

speak, K.T. told her friends that Jim had raped her.

       As a result of these events, the United States charged Jim with one count of

aggravated sexual abuse—vaginal intercourse by force, in violation of 18 U.S.C.

§§ 2241(a)(1), 2246(2)(A). Jim initially pled guilty to that charge, but the district court

later granted Jim’s request to withdraw his guilty plea and proceed to trial. The

Government then added a second charge: aggravated sexual abuse—anal penetration by

force. A jury convicted Jim of both charges, and the district court imposed concurrent

360-month sentences.2

       On appeal, Jim challenges his convictions, arguing that the district court erred

when, contrary to Rule 410, it allowed the Government to present to the jury evidence

that he admitted committing the charged offenses when he initially pled guilty. We reject

this argument because Jim validly waived the usual protection Rule 410 provides against

the Government’s use of this evidence at trial. In a cross-appeal, the Government

contends that the district court erred in calculating Jim’s offense level under the


2
  These crimes are federal offenses because the United States charged that an “Indian”
committed these crimes against another “Indian” in “Indian country,” as defined in 18
U.S.C. § 1151(a). See 18 U.S.C. §§ 1152, 1153(a); see also United States v. Antelope,
430 U.S. 641, 642-43 & 644 n.4 (1977). Federal law would not have applied if a non-
Indian had committed these offenses in “Indian country” against a non-Indian. See
Antelope, 430 U.S. at 643 n.2, 644 & n.4. Jim argues that this differing treatment of
Indians and non-Indians amounts to an impermissible classification based on race.
Because the Supreme Court has already rejected Jim’s argument, see id. at 645-47, we
deny relief. Jim acknowledges the existing Supreme Court precedent and raises the issue
only to preserve it should the Supreme Court revisit the question in the future.
                                              4
sentencing guidelines. We agree, and remand for resentencing.



                                       DISCUSSION

I. Jim’s challenge to the enforcement of his Rule 410 waiver

         Rule 410 provides that evidence of “a guilty plea that was later withdrawn” or

statements that a defendant made when he entered a guilty plea, later withdrawn, are not

admissible against that defendant. Fed. R. Evid. 410(a)(1), (3)3; see United States v.

Mitchell, 633 F.3d 997, 998, 1000, 1002-03 (10th Cir. 2011). But a defendant can waive

his Rule 410 protections. See United States v. Mezzanatto, 513 U.S. 196, 197 (1995).


3
    Rule 410(a) provides:

         In a civil or criminal case, evidence of the following is not admissible
         against the defendant who made the plea or participated in the plea
         discussions:

               (1) a guilty plea that was later withdrawn;

               (2) a nolo contendere plea;

               (3) a statement made during a proceeding on either of those
               pleas under Federal Rule of Criminal Procedure 11 or a
               comparable state procedure; or

               (4) a statement made during plea discussions with an attorney
               for the prosecuting authority if the discussions did not result
               in a guilty plea or they resulted in a later-withdrawn guilty
               plea.

See also Fed. R. Crim. P. 11(f) (“The admissibility or inadmissibility of a plea, a plea
discussion, and any related statement is governed by Federal Rule of Evidence 410.”).
                                              5
       In this case, Jim waived those protections as part of his initial plea agreement:

       Except under circumstances where the Court, acting on its own, fails to
       accept this plea agreement, the Defendant agrees that, upon the Defendant’s
       signing of this plea agreement, the facts that the Defendant has admitted
       under this plea agreement as set forth above, as well as any facts to which
       the Defendant admits in open court at the Defendant’s plea hearing, shall be
       admissible against the Defendant under Federal Rule of Evidence
       801(d)(2)(A) [providing that an opposing party’s statement is not hearsay]
       in any subsequent proceeding, including a criminal trial, and the Defendant
       expressly waives the Defendant’s rights under Federal Rule of Criminal
       Procedure 11(f) and Federal Rule of Evidence 410 with regard to the facts
       the Defendant admits in conjunction with this plea agreement.

(R. v.1 at 30, ¶ 10(c).) In light of Jim’s Rule 410 waiver, the district court allowed the

Government to introduce evidence during his trial of the admissions Jim made in his plea

agreement and during his plea colloquy. United States v. Jim, 839 F. Supp. 2d 1157,

1158 (D. N.M. 2012).

       On appeal, Jim does not contend that he unknowingly or involuntarily waived

Rule 410’s protections. Instead, he claims that his Rule 410 waiver was unenforceable

because it was part of an overall plea agreement that was itself not knowing and

voluntary. More specifically, Jim contends that his guilty plea, which was part of his plea

agreement, was not knowing and voluntary because he did not realize that, by pleading

guilty, he was foregoing a trial. “If a guilty plea is not knowing and voluntary, it is void,

and any additional waivers in the plea agreement generally are unenforceable.” Mitchell,

633 F.3d at 1001 (citation omitted); see also United States v. Rollings, 751 F.3d 1183,

1186 (10th Cir.), cert. denied, 135 S. Ct. 494 (2014). To determine whether Jim’s Rule

410 waiver is enforceable in this case, therefore, we consider whether Jim knowingly and
                                              6
voluntarily entered his plea agreement and guilty plea, which guilty plea the district court

later allowed him to withdraw. Because Jim failed to show that his guilty plea and the

underlying plea agreement were unknowing or involuntary, we conclude that the Rule

410 waiver contained in the plea agreement was enforceable. Based on that waiver, the

district court did not err in allowing the Government to present to the jury evidence of the

admissions Jim made in the plea agreement and during the plea colloquy.

       A. Proceedings relevant to the enforcement of Jim’s Rule 410 waiver

       In order to understand Jim’s argument against enforcement of his Rule 410 waiver

and why that argument fails, it is necessary to consider four discrete proceedings that

occurred during this criminal prosecution.

              1. Jim pled guilty

       Pursuant to the plea agreement, Jim pled guilty to one count of aggravated sexual

abuse, and the parties agreed that Jim would receive a sentence of between 151 and 188

months in prison. If the district court accepted the plea agreement, the parties’ agreed-

upon sentencing range would bind the court. See Fed. R. Crim. P. 11(c)(1)(C). In light

of that, the magistrate judge who took Jim’s guilty plea accepted his guilty plea, after

determining Jim entered it knowingly and voluntarily, but deferred deciding whether to

accept the plea agreement until sentencing. See Fed. R. Crim. P. 11(c)(3)(A); see also

United States v. Byrum, 567 F.3d 1255, 1259 (10th Cir. 2009).

              2. Jim retained new counsel

       After he pled guilty but before sentencing, Jim, acting on his own, wrote the
                                             7
district court asking for a new court-appointed attorney. During an ex parte hearing to

address that request, Jim told the district court that his current attorney had rushed him

into the plea agreement, which Jim had not fully understood. In particular, Jim told the

court that he had not realized that, by pleading guilty, he would not have a trial.

According to Jim, when he pled guilty, he mistakenly believed that his plea agreement

only limited the length of the sentence he would receive, should he be convicted, but that

he would still have a jury trial to determine his guilt or innocence. (This was the only

time that Jim made this assertion to the district court, although the district court thereafter

did sua sponte return to this issue in several later rulings.) Before the court ruled on

Jim’s request for another court-appointed attorney, Jim instead retained a new lawyer.

              3. The district court allowed Jim to withdraw his guilty plea

       Jim’s new attorney filed a motion to withdraw Jim’s guilty plea. Because Jim

made this request before sentencing, the district court had discretion to permit Jim to

withdraw his plea if he asserted a “fair and just reason for requesting” to do so. Fed. R.

Crim. P. 11(d)(2)(B); see also United States v. Sanchez-Leon, 764 F.3d 1248, 1259 (10th

Cir. 2014) (noting such a motion is freely allowed). Although Jim gave the district court

several reasons why he was asking to withdraw his guilty plea (e.g., the defense had new

evidence with which to impeach the victim and, without further explanation, Jim’s guilty

plea “was without full understanding and arguably it was not voluntary,” (R. v.1 at 50,

¶ 11)), Jim did not specifically reassert his mistaken belief that, even after his guilty plea,

he would still have a jury trial.
                                               8
       The district court, in deciding whether to permit Jim to withdraw his guilty plea,

considered several factors, including whether Jim’s guilty plea was knowing and

voluntary.4 See Sanchez-Leon, 764 F.3d at 1258. In addressing the knowing-and-

voluntary factor, the district court sua sponte noted that it remained troubled by Jim’s

earlier pro se assertion, made when he asked for a new attorney, that Jim had not realized

that by pleading guilty he was giving up a trial. Adding to the district court’s concern

was the fact that, when the magistrate judge took Jim’s guilty plea, the magistrate judge

had not specifically informed Jim, as required by Fed. R. Crim. P. 11(b)(1)(C) and (F),

that, by pleading guilty, he was waiving his right to a trial. Despite the district court’s

concerns, however, the court ultimately did not decide whether Jim’s guilty plea was

knowing or voluntary. But the court’s “doubts” about the knowing-and-voluntary nature

of Jim’s plea “weigh[ed] heavily in favor of” the court exercising its discretion to allow

Jim to withdraw his guilty plea. (R. v.1 at 125.)

       Nevertheless, before allowing Jim to withdraw his guilty plea, the district court

specifically warned him that, in light of his Rule 410 waiver, if Jim withdrew his guilty

plea and went to trial, the Government would be able to present to the jury evidence of

4
 The Tenth Circuit has “identified seven factors to guide a [district] court’s decision on
whether to grant [a defendant’s request to withdraw his guilty plea]: (1) whether the
defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing
defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel,
(6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.”
Sanchez-Leon, 764 F.3d at 1258 (internal quotation marks omitted). “We also have
suggested an additional factor to consider: the likelihood of conviction.” Id. (internal
quotation marks omitted).

                                              9
Jim’s admissions made when he entered that plea. In response to this warning, defense

counsel, in open court with Jim present, acknowledged that the Government would be

able to use the Rule 410 evidence at trial, but assured the court that Jim was “aware of

what he’s doing and what the evidence is against him.” (R. v.3 at 24.) Jim ultimately

elected to withdraw his guilty plea and proceed to trial.

              4. The district court enforced Jim’s Rule 410 waiver by allowing the
              Government to present Rule 410 evidence to the jury

       After the district court permitted Jim to withdraw his guilty plea and the parties

were preparing for trial, Jim filed a motion in limine seeking to prevent the Government

from presenting the Rule 410 evidence to the jury. In making that motion, Jim did not

assert that the plea agreement containing his Rule 410 waiver was unknowing and

involuntary on the basis that he had not realized that, when he pled guilty, he would not

have a trial. Rather, the bases for Jim’s in limine motion were that allowing the

government to present to the jury evidence that he had admitted committing the charged

offenses would result in an unfair trial and that Jim did not knowingly enter into the plea

agreement, with its Rule 410 waiver, because, at the time he made that agreement, he did

not have full discovery of all the evidence that the Government had against him. Those

issues are not raised now in this appeal.

       The district court, in denying Jim’s motion in limine, again raised and addressed

sua sponte the court’s lingering concerns about the knowing-and-voluntary nature of

Jim’s guilty plea, based on a mistaken belief that he would still have a jury trial after

                                              10
pleading guilty. Jim, 839 F. Supp. 2d at 1180-87. Ultimately, however, the court

rejected those concerns as a reason to exclude the Rule 410 evidence because Jim had

failed to “come forward with evidence, a sworn statement or testimony or other evidence,

suggesting that the Court’s concerns and doubts were correct, or that the Court’s doubts

should preclude a finding that the plea was knowing and voluntary.” Id. at 1182.

Because Jim had failed to show that his guilty plea was not knowing and voluntary, the

district court enforced Jim’s Rule 410 waiver, denied his motion in limine, and permitted

the Government to use the Rule 410 evidence against Jim at trial. Id. at 1171-74, 1177-

87. It is this decision that Jim challenges on appeal.

       The district court’s two decisions, first to allow Jim to withdraw his guilty plea

and then to enforce the Rule 410 waiver contained in the plea agreement, are consistent

with decisions from other circuits enforcing Rule 410 waivers contained in plea

agreements, and consistent with the particular language of those waivers. See United

States v. Nelson, 732 F.3d 504, 512-13, 516-17 (5th Cir. 2013) (enforcing plea

agreement’s Rule 410 waiver against a defendant who did not enter a guilty plea as

required under the plea agreement, where waiver expressly took effect if the defendant

failed to enter the guilty plea), cert. denied, 134 S. Ct. 2682 (2014); United States v.

Washburn, 728 F.3d 775, 780-82 (8th Cir. 2013) (holding plea agreement, with its Rule

410 waiver, was binding on defendant once he signed the agreement and Rule 410 waiver

remained enforceable, pursuant to its express terms, even though the defendant never

entered guilty plea required under that agreement and even though district court never
                                             11
accepted the plea agreement); United States v. Quiroga, 554 F.3d 1150, 1153-57 (8th Cir.

2009) (enforcing plea agreement’s Rule 410 waiver that by its terms applied if the

defendant breached the plea agreement, when the defendant breached the agreement by

withdrawing his guilty plea); cf. United States v. Newbert, 504 F.3d 180, 181-88 (1st Cir.

2007) (looking at Rule 410 waiver language in plea agreement, but declining to enforce

waiver because of extenuating circumstances in that case).

       Jim’s Rule 410 waiver expressly stated that it took effect at the time he signed the

plea agreement. See Washburn, 728 F.3d at 779-82 (8th Cir.) (enforcing Rule 410 waiver

in plea agreement which, according to the terms of the waiver, took effect upon the

defendant’s signing the agreement, notwithstanding that the defendant later breached the

plea agreement by not entering a guilty plea); see also United States v. Escobedo, 757

F.3d 229, 233-34 (5th Cir. 2014) (looking at language of plea agreement containing Rule

410 waiver to determine whether parties intended the waiver to be effective when the

defendant signed the agreement or instead when (and if) the court accepted the plea

agreement). And Jim does not contend that his Rule 410 waiver was not enforceable for

the reason that the district court permitted him to withdraw his guilty plea. Indeed, it

would make no sense to deny the efficacy of the Rule 410 waiver just because the guilty

plea was withdrawn because that would render the waiver largely meaningless and

deprive the Government of the benefit of its bargain. The clearly contemplated situation

where the Rule 410 waiver would have any usefulness to the Government is in precisely

this situation—where the defendant failed to carry out his side of the bargain to plead
                                             12
guilty and thereby forced the Government to trial.

       However, if Jim’s entire guilty plea was not knowing and voluntary, then “any

additional waivers in the plea agreement,” including his Rule 410 waiver, would not have

been enforceable. See Mitchell, 633 F.3d at 1001; see also Rollings, 751 F.3d at 1186.

Jim’s argument on appeal, therefore, is that his entire guilty plea was not knowing and

voluntary and, thus, neither was his plea agreement which contained the Rule 410 waiver;

therefore, the Rule 410 waiver is unenforceable. So the issue we now address is whether

Jim entered his plea agreement knowingly and voluntarily.

       B. Standard of review

       We review de novo the question of whether Jim’s guilty plea was knowing and

voluntary. See Rollings, 751 F.3d at 1191; see also United States v. Hernandez-

Rodriguez, 352 F.3d 1325, 1328 (10th Cir. 2003) (holding appellate court’s review is de

novo where district court sua sponte raised and explicitly decided issue on merits).

       C. Jim’s Rule 410 waiver was enforceable because he failed to demonstrate
       that his guilty plea was not knowing and voluntary

              1. The standard by which Jim must demonstrate that his guilty plea
              was not knowing or voluntary

       It is Jim’s burden to show that his guilty plea was not knowing or voluntary. See

Rollings, 751 F.3d at 1187. Ordinarily, to meet this burden a defendant would have to

prove that his plea was not knowing and voluntary. Id. (addressing knowing-and-

voluntary nature of plea agreement); United States v. Salas-Garcia, 698 F.3d 1242, 1255

(10th Cir. 2012) (same). But Jim contends that, in order to meet his burden in this case
                                            13
and avoid his Rule 410 waiver, he need only point to “some affirmative indication” in the

record that his plea was not knowing and voluntary. Jim deems this “some affirmative

indication” to be a lighter burden than the usual burden a defendant shoulders when

challenging the knowing-and-voluntary nature of his guilty plea.

       Jim gets this “some affirmative indication” language from United States v.

Mezzanatto, 513 U.S 196 (1995). But the Court in Mezzanatto addressed a question

different from the one presented here. Mezzanatto addressed whether there should be a

per se rule precluding a defendant from ever waiving his Rule 410 protections. Id. at

197. Rejecting such a per se rule, the Court held that, like most constitutional and

statutory rights, a defendant can waive Rule 410’s protections. Id. at 200-03. In reaching

that conclusion, the Court rejected the defendant’s policy argument that allowing a

defendant to waive Rule 410’s protections “invite[d] prosecutorial overreaching and

abuse.” Id. at 209.

               The mere potential for abuse of prosecutorial bargaining power is an
       insufficient basis for foreclosing [plea] negotiation altogether. Rather,
       tradition and experience justify our belief that the great majority of
       prosecutors will be faithful to their duty. Thus, although some waiver
       agreements may not be the product of an informed and voluntary decision,
       this possibility does not justify invalidating all such agreements. Instead,
       the appropriate response to respondent’s predictions of abuse is to permit
       case-by-case inquiries into whether waiver agreements are the product of
       fraud or coercion. We hold that absent some affirmative indication that the
       agreement was entered into unknowingly or involuntarily, an agreement to
       waive the exclusionary provisions of the plea-statement Rules is valid and
       enforceable.

Id. at 210 (emphasis added) (internal quotation marks, citations omitted).

                                            14
       When the Court in Mezzanatto used the language on which Jim relies, it was

discussing Rule 410 waivers generally, rejecting a per se rule that a defendant can never

waive his Rule 410 protections. Mezzanatto was not addressing, nor was it attempting to

articulate, a unique (and lesser) burden that a particular defendant had to meet in order to

challenge a Rule 410 waiver in a given case. We, thus, do not read Mezzanatto’s “some

affirmative indication” language to establish a new and unique standard of proof for

determining whether the defendant’s Rule 410 waiver is enforceable in a particular case.

That is the question we must answer in our case, but that question was not presented in

Mezzanatto. Id. at 210-11.

       Had the Court in Mezzanatto intended to establish a new standard to measure the

knowing and voluntary nature of a waiver of rights, the Court would have done so clearly

and directly, instead of using the phrase “some affirmative indication” in a single

sentence found toward the end of the opinion, in a section rejecting one of several policy

reasons offered to support a (rejected) per se rule prohibiting a defendant from ever

waiving his Rule 410 protections. Moreover, if the Court intended to announce a new

standard in Mezzanatto, the Court surely would have elaborated on what it meant by

“some affirmative indication,” and the Court would have explained how that new

standard compared with the already-existing legal standard for determining whether a

waiver of rights was knowing and voluntary. But the Court did not see the need to

elaborate on the meaning of “some affirmative indication” in Mezzanatto because it was

not creating a new standard.
                                             15
       Nor would it make sense that Mezzanatto would craft a special rule just for Rule

410 waivers. There is no reason why it should be easier, as Jim defines “some

affirmative indication,” for a defendant to avoid his Rule 410 waiver (or here a guilty

plea and entire plea bargain associated with a Rule 410 waiver) than it is for a defendant

generally to avoid a guilty plea or a waiver of other constitutional or statutory rights. To

the contrary, the Court’s point in Mezzanatto was that Rule 410 protections are like most

constitutional and statutory rights because they too can be waived. 513 U.S. at 200-06.

The underlying premise of Mezzanatto is that Rule 410 protections do not require special

evidentiary rules to address waiver. See id. at 200-04. We have found no circuit case

expressly interpreting Mezzanatto’s “some affirmative indication” language as a new and

different standard by which to measure the knowing and voluntary nature of Rule 410

waivers, or plea agreements and guilty pleas associated with those waivers.

       Thus, we conclude that Mezzanatto, by using the phrase “some affirmative

indication that the [Rule 410 waiver] agreement was entered into unknowingly or

involuntarily,” 513 U.S. at 210, was not setting forth a new evidentiary standard for

determining whether a particular defendant in a given case knowingly and voluntarily

waived his Rule 410 protections. In answering that issue here, then, we make the usual

inquiry into whether Jim has proved or established that his guilty plea was not knowing

and voluntary.

       This is what we did previously in Mitchell, another case addressing the validity of

a Rule 410 waiver contained in a plea agreement. At the outset of its discussion, the
                                             16
Mitchell court noted generally that “the protections of . . . Rule [410] may be waived,”

and then it quoted generally from Mezzanatto: “‘[A]bsent some affirmative indication

that the agreement was entered into unknowingly or involuntarily, an agreement to waive

the exclusionary provisions of [Rule 410] is valid and enforceable.’” Mitchell, 633 F.3d

at 1000 (quoting Mezzanatto, 513 U.S. at 210.) However, in order to determine whether

the defendant’s Rule 410 waiver was enforceable in that case, Mitchell used our ordinary

evidentiary standards to consider whether the defendant’s guilty plea, which was part of

the same plea agreement containing his Rule 410 waiver, was knowing and voluntary.

633 F.3d at 1001. The Mitchell court made no further reference to Mezzanatto’s “some

affirmative indication” language. We take the same approach in this case.

              2. Jim failed to establish that his guilty plea was not knowing and
              voluntary

       On appeal, Jim claims that his guilty plea was not knowing and voluntary because

he did not realize that, by pleading guilty, he would not have a trial. To support his

claim, Jim points only to the doubts that the district court sua sponte raised about the

knowing and voluntary nature of Jim’s guilty plea. Those doubts were based on 1) Jim’s

pro se assertion to the district court, when Jim was seeking a new attorney, that Jim

mistakenly thought that he would still have a jury trial, even after pleading guilty; and

2) the magistrate judge’s failure to insure, on the record at the plea colloquy, that Jim

understood that by pleading guilty, he was waiving his right to a jury trial. The district

court’s “doubts,” however, in that different and preliminary context, are insufficient for

                                             17
Jim to establish that his guilty plea was not knowing or voluntary. In fact, since that

ruling, Jim offered neither his own testimony nor any other evidence that he believed he

was retaining a right to proceed to trial notwithstanding clear language in the plea

agreement to the contrary, nor did he renew that claim on his own in the district court.

       Although the magistrate judge who took Jim’s guilty plea did not expressly inform

Jim that he was waiving his right to a jury trial by pleading guilty, the written plea

agreement and the circumstances surrounding Jim’s entry of that plea show that Jim

understood that, by pleading guilty, he would not have a trial. See United States v.

Tanner, 721 F.3d 1231, 1233-35 (10th Cir. 2013) (per curiam).

       The plea agreement itself informed Jim that he had the right to plead not guilty

and to have a jury trial and, at that trial, to confront and cross-examine witnesses, to

testify and present witnesses in his defense, compelling their attendance if need be, and

not to be required to incriminate himself. The plea agreement further stated that Jim

“agrees to waive these rights and to plead guilty . . . .” (R. v.1 at 27, ¶ 3.) And Jim

declared that,

               [b]y my signature on this plea agreement, I am acknowledging that I
       am pleading guilty because I am, in fact, guilty of the offense to which I am
       pleading guilty. I recognize and accept responsibility for my criminal
       conduct. Moreover, in pleading guilty, I acknowledge that if I chose to go
       to trial instead of entering this plea, the United States could prove facts
       sufficient to establish my guilt of the offense to which I am pleading guilty
       beyond a reasonable doubt.

(Id. at 28, ¶ 8 (emphasis added).) Jim also stated in the plea agreement that he had

“thoroughly reviewed all aspects of this case with [his] attorney and is fully satisfied with
                                             18
that attorney’s legal representation.” (Id. at 26, ¶ 1.) Finally, immediately above Jim’s

signature, the plea agreement stated “I have read this agreement and carefully reviewed

every part of it with my attorney. I understand the agreement and voluntarily sign it.”

(Id. at 34.) The plea agreement, thus, adequately informed Jim that, by pleading guilty,

he was giving up a trial. And by signing the agreement, he acknowledged understanding

that trial waiver.

         During the change-of-plea hearing, Jim stated in open court that he had read and

signed the plea agreement, that he understood the agreement, and that he had no

questions about it. Jim also acknowledged that he was pleading guilty of his own free

will because he was in fact guilty. His responses during the plea colloquy, thus, generally

reinforced that he understood the terms of the plea agreement. And that agreement

clearly informed Jim that, by pleading guilty, he was not going to have a trial which, had

it occurred, would have had sufficient facts against him to support a conviction.

         Furthermore, Jim’s personal history indicates that he was capable of understanding

the terms of his plea agreement. At the time he signed that agreement, Jim was twenty-

eight years old, a high school graduate, with some college credits. And he had twice

before pled guilty to drunk driving charges, so he had previous experience with guilty

pleas.

         In light of the language in the plea agreement informing Jim that, by pleading

guilty, he was giving up a trial, and the circumstances surrounding his entry of that plea

that show that Jim was capable of understanding, and did understand, the terms of that
                                              19
agreement, we find no error in the district court’s ruling that Jim knowingly and

voluntarily entered his guilty plea. See Tanner, 721 F.3d at 1233-34.5 6

II. The Government’s cross-appeal challenging Jim’s sentences




5
  We disagree with Jim’s contention that the district court’s decision to allow him to
withdraw his guilty plea was inconsistent with the court’s later determination that Jim
failed to show that his guilty plea was not knowing and voluntary. The district court had
discretion to permit Jim to withdraw his plea upon Jim’s assertion of “a fair and just
reason.” Fed. R. Crim. P. 11(d)(2)(B); see also United States v. Muhammad, 747 F.3d
1234, 1241 (10th Cir.), cert. denied, 134 S. Ct. 2741 (2014). Leave to withdraw should
be freely given. See Sanchez-Leon, 764 F.3d 1248, 1259. Challenging the knowing-and-
voluntary nature of Jim’s guilty plea, on the other hand, presents a legal question
requiring a binary determination—the plea was either knowing and voluntary or it was
not—to be made in light of all the circumstances surrounding the plea. See Muhammad,
747 F.3d at 1240; Tanner, 721 F.3d at 1233-34. That determination did not rest on the
court’s exercise of discretion. See Rollings, 751 F.3d at 1191 (stating that the question of
whether a guilty plea is knowing and voluntary is a legal conclusion). In light of these
differing legal standards, the district court’s decision to exercise its discretion to permit
Jim to withdraw his guilty plea was not inconsistent with the court’s later conclusion that
Jim had failed to show that his plea was unknowing or involuntary. Even if the district
court’s decisions were inconsistent, however, it would suggest only one of the two is
incorrect. Here, only the latter ruling, that Jim failed to show that his guilty plea was not
knowing and voluntary, is before us for review. See Quiroga, 554 F.3d at 1156-57 (8th
Cir.). And we uphold that decision.
6
 Jim raises two additional arguments. The first is that Rule 410 applies to exclude
admissions he made, after his guilty plea, to the probation officer who was preparing the
presentence report. We need not address this argument because Jim acknowledges that
the Government did not present evidence of these post-plea admissions to the jury and
thus that issue is not presented in this appeal. Jim’s second argument is that, even if his
Rule 410 waiver permitted the Government to present Rule 410 evidence at trial, the
Government still could not use that evidence in its case-in-chief. Jim’s Rule 410 waiver
does not so limit the Government’s use of the Rule 410 evidence, however, and this court
has previously recognized that, based on a valid Rule 410 waiver, the Government can
use Rule 410 evidence in its case-in-chief. See Mitchell, 633 F.3d at 998.
                                             20
       In its cross-appeal, the Government challenges the concurrent 360-month

sentences that the district court imposed for Jim’s aggravated sexual abuse convictions.

The Government specifically contends that the district court erred in its interpretation of

U.S.S.G. § 2A3.1(b)(4)(B), which enhances a sexual abuse defendant’s offense level by

two if his victim suffered serious bodily injury. The district court determined that, in

deciding whether the serious-bodily-injury enhancement applies in a given case, the

sentencing court cannot, as a matter of law, consider injuries resulting directly from the

sexual abuse underlying the defendant’s convictions. See United States v. Jim, 877

F. Supp. 2d 1018, 1037-41 (D. N.M. 2012). Reviewing that determination de novo, see

United States v. Hoyle, 751 F.3d 1167, 1172 (10th Cir. 2014), cert. denied, 135 S. Ct. 944

(2015), we disagree.

       To calculate Jim’s offense level for his aggravated sexual abuse convictions, the

district court had to apply U.S.S.G. § 2A3.1. Section 2A3.1(b)(4)(B) adds two offense

levels “if the victim sustained serious bodily injury.” “Serious bodily injury” is defined

in another section of the guidelines, in the application notes to § 1B1.1, which apply

generally to all guideline provisions.

       Section 1B1.1’s application notes provide two different definitions of “serious

bodily injury.” First, “‘[s]erious bodily injury’ means injury involving extreme physical

pain or the protracted impairment of a function of a bodily member, organ, or mental

faculty; or requiring medical intervention such as surgery, hospitalization, or physical

rehabilitation.” U.S.S.G. § 1B1.1 app. n.1(L). Second, “‘serious bodily injury’ is
                                             21
deemed to have occurred if the offense involved conduct constituting criminal sexual

abuse under 18 U.S.C. § 2241 or [§] 2242 or any similar offense under state law.”

U.S.S.G. § 1B1.1 app. n.1(L).

       That second definition of serious bodily injury cannot apply when the sentencing

court is calculating the offense level for an 18 U.S.C. § 2241 offense like Jim’s because

the base offense level for that offense already takes into account the fact that the

defendant’s “offense involved conduct constituting criminal sexual abuse under 18

U.S.C. § 2241.” U.S.S.G. § 1B1.1 app. n.1(L). It is for that reason that the application

notes for U.S.S.G. § 2A3.1, the guideline specifically addressing sexual abuse

convictions, provide that, “for purposes of this [sexual abuse] guideline, ‘serious bodily

injury’ means conduct other than criminal sexual abuse, which is already taken into

account in the base offense level under” § 2A3.1(a). U.S.S.G. § 2A3.1, app. n. 1

(emphasis added). The two-level serious-bodily-injury enhancement can still apply to a

sexual abuse offender, but it must be based on the fact that the victim’s injuries meet the

first definition of “serious bodily injury”: “injury involving extreme physical pain or the

protracted impairment of a function of a bodily member, organ, or mental faculty; or

requiring medical intervention such as surgery, hospitalization, or physical

rehabilitation.” U.S.S.G. § 1B1.1 app. n.1(L).

       The district court concluded that, in deciding whether the victim’s injuries meet

this definition of “serious bodily injury,” the court could not, as a matter of law, consider

any injuries that resulted directly from the underlying sexual abuse itself. Jim, 877
                                             22
F. Supp. 2d at 1037-38. The district court based that conclusion on the language of

§ 2A3.1’s application note 1: “[F]or purposes of this guideline, ‘serious bodily injury’

means conduct other than criminal sexual abuse, which already is taken into account in

the base offense level under” § 2A3.1(a). (Emphasis added.)

       Admittedly that application note’s language—in particular, the phrase “injury

means conduct”—is perplexing. But read in context, we conclude that language means

that the sentencing court, in calculating a sexual abuse defendant’s offense level, cannot

apply the serious-bodily-injury enhancement based on the fact that the offender

committed a sexual abuse offense. It is that “conduct . . . which already is taken into

account in the base offense level” for sexual abuse offenses, U.S.S.G. § 2A3.1, app. n.1.

The language of the application note does not preclude the sentencing court, in deciding

whether a sexual offender’s victim suffered serious bodily injury, from considering

injuries resulting directly from the sexual abuse.

       Moreover, attempting to distinguish between injuries suffered as a direct result of

the sexual abuse and those suffered during the incident but before or after the sexual

abuse is an unworkable requirement. In many cases, it will be difficult to separate those

injuries that resulted directly from the sexual abuse from injuries suffered while the

offender was forcing the victim’s submission, for example, or from injuries compelling

the victim’s silence.

       For these reasons, we conclude that a sentencing court can consider injuries the

victim suffered resulting directly from the sexual abuse as well as those suffered during
                                             23
relevant conduct surrounding that offense, see U.S.S.G. § 1B1.3(a)(1), when determining

whether the victim suffered serious bodily injury, defined as “injury involving extreme

physical pain or the protracted impairment of a function of a bodily member, organ, or

mental faculty; or requiring medical intervention such as surgery, hospitalization, or

physical rehabilitation,” U.S.S.G. § 1B1.1 app. n.1(L). Of course, regardless of when

such injuries were suffered they still must satisfy the fairly egregious injury standard of

U.S.S.G. § 1.1B1, app. n.(1)(L) to justify an enhancement under § 2A3.1(b)(4)(B).

       Our interpretation of § 2A3.1(b)(4)(B)’s serious-bodily-injury enhancement is

similar to the interpretation adopted by the Eighth Circuit. See United States v. Long

Turkey, 342 F.3d 856, 858 (8th Cir. 2003) (holding that the sentencing court, in

determining whether the serious-bodily-injury enhancement should apply in a given case,

can consider “injuries resulting from an episode of criminal sexual abuse”; noting that

“only that the act of sexual abuse is insufficient by itself to support” the enhancement).

See generally United States v. Volpe, 224 F.3d 72, 78 (2d Cir. 2000) (noting that

§ 2A3.1(b)(4)’s “degree-of-injury adjustment punishes the assailant for the injuries to the

victim that result from the assault”).

       The district court here declined to consider the victim’s injuries that resulted

directly from the sexual abuse in an effort to avoid double-counting the defendant’s

conduct. Jim, 877 F. Supp. 2d at 1039-40. Generally, “impermissible ‘double counting’

occurs when the same conduct on the part of the defendant is used to support separate

increases under separate enhancement provisions which necessarily overlap, are
                                             24
indistinct, and serve identical purposes.” United States v. Joe, 696 F.3d 1066, 1070 (10th

Cir. 2012) (internal quotation marks omitted). The district court worried in this case that

basing the serious-bodily-injury enhancement on injuries resulting directly from the

sexual abuse would impermissibly double count the victim’s injuries, which “are already

taken into account in the base offense level for criminal sexual abuse,” § 2A3.1 app. n.1.

Jim, 877 F. Supp. 2d at 1039. But the base offense level takes into account the offender’s

conduct in committing a sexual abuse offense, not the injuries the victim suffered. The

district court’s reasoning erroneously treats the victim’s injuries as identical to the

defendant’s conduct. While in any given case there may be a correlation between the

egregiousness of the defendant’s conduct in committing the sexual abuse and the injuries

the victim suffered as a direct result of the sexual abuse, that will not always be the case.

And, in any event, the guidelines can enhance a defendant’s offense level both for the

egregiousness of his conduct in committing a sex offense and for the injuries inflicted

during that offense because those enhancements address different and distinct matters.

Furthermore, the high standard for injuries required to satisfy U.S.S.G. § 1B1.1, app.

n.1(L) provides adequate insurance against double-counting because the injuries

described there fall outside the standard or heartland range of injuries that could be

expected in a baseline offense of criminal sexual abuse under § 2A3.1(a). So long as the

district court does not impose the serious-bodily-injury enhancement just on the fact that




                                              25
criminal sexual abuse occurred, there will not be the type of impermissible double-

counting about which the district court was concerned.7

       Having determined that the district court erred in refusing to consider whether

§ 2A3.2(b)(4)(B)’s two-offense-level enhancement for serious bodily injury could apply

in this case, we remand for resentencing. On remand, the district court can consider, in

the first instance, whether the victim’s injuries amounted to serious bodily injury, defined

as “injury involving extreme physical pain or the protracted impairment of a function of a

bodily member, organ, or mental faculty; or requiring medical intervention such as

surgery, hospitalization, or physical rehabilitation.”8


7
 The district court also raised a second, very different, double-counting concern: The
district court worried that applying § 2A3.1(b)(4)(B)’s two-level serious-bodily-injury
enhancement could double count the defendant’s use of force in cases like this one,
where the court also applied § 2A3.1(b)(1)’s four-offense-level enhancement because the
offense involved sexual abuse by force. Jim, 877 F. Supp. 2d at 1039-40. That is not a
concern here, however, because the Government, at least on appeal, seeks only to support
the two-level serious-bodily-injury enhancement with injuries that the victim suffered as
a direct result of the sexual abuse. The Government does not seek to support the serious-
bodily-injury enhancement further with injuries the victim suffered as a result of Jim
forcing her to submit to that sexual abuse by dragging her off the couch and down the
hallway into the bedroom and then holding her down.
8
  Because we are remanding for resentencing, we do not consider here Jim’s argument
challenging the substantive reasonableness of his 360-month sentence. See United States
v. Kieffer, 681 F.3d 1143, 1165 (10th Cir. 2012). But, in order to provide guidance for
resentencing, we address and reject Jim’s argument, made for the first time on appeal,
that the district court was somehow bound by the Government’s concession in the plea
agreement underlying Jim’s withdrawn guilty plea that an advisory range of 155 to 188
months in prison was appropriate in Jim’s case. The Government’s concession, made in
a Rule 11(c)(1)(C) plea agreement, never bound the district court because Jim withdrew
his guilty plea before the court had an opportunity to accept the plea agreement
underlying the plea. And, by the time the district court sentenced Jim, after his jury trial,
                                              26
                                      CONCLUSION

       For the foregoing reasons, we AFFIRM Jim’s convictions. But we REMAND,

directing the district court to VACATE Jim’s two concurrent 360-month sentences and to

resentence him after considering whether to apply § 2A3.1(b)(4)(B)’s two-offense-level

enhancement for causing serious bodily injury.




circumstances relating to Jim’s sentence had changed. At the time that Jim and the
Government entered into the plea agreement, he was charged with only one count of
aggravated sexual abuse; little discovery had occurred; DNA tests had not yet linked Jim
physically to the victim; and Jim was entitled to a three-offense-level reduction for
accepting responsibility by pleading guilty, see U.S.S.G. § 3C1.1. By the time the district
court sentenced Jim, after trial, he had been charged with and convicted of two counts of
aggravated sexual abuse; and he was no longer entitled to the three-offense-level
reduction for accepting responsibility because he put the Government to its proof by
going to trial. Further, the district court enhanced Jim’s offense level after finding that he
perjured himself at trial, an enhancement that no one envisioned at the time of the earlier
plea agreement. We, therefore, reject Jim’s assertion that the sentencing court is
somehow bound by the advisory guideline range to which the parties originally agreed in
the plea agreement.
                                             27
