United States v. Jose Gutierrez

MEMORANDUM

Jose Antonio Gutierrez appeals his felony conviction for assaulting a federal officer in violation of 18 U.S.C. § 111 (a), arguing that (1) the initial and supplemental jury instructions constructively amended the indictment, and (2) there was insufficient evidence to support the conviction. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Because Gutierrez failed to object below, we review the district court’s instructions for plain error. United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir.2006). The district court properly charged the jury with Ninth Circuit Model Criminal Jury Instruction § 8.3, see United States v. Acosta-Sierra, 690 F.3d 1111 , 1118 n. 3 (9th Cir.2012), and the supplemental instruction correctly defined conduct that would qualify as forcible assault, cf. United States v. Sommerstedt, 752 F.2d 1494, 1496-97 (9th Cir.1985) (“[A] defendant may be convicted of violating section 111 if he or she uses any force whatsoever....”). The statute uses physical contact as a means of distinguishing between a misdemeanor and felony assault of a federal officer. 18 U.S.C. § 111 (a); United States v. Chapman, 528 F.3d 1215, 1218-19 (9th Cir.2008).…