Lewellyn

facts, which are not disputed on appeal: During the incident in question, Lewellyn and the victim were standing within inches of one another; Lewellyn, intending to spit on the vic- tim, attempted to do so and some spittle hit the victim in the face.

The magistrate judge found Lewellyn guilty of simple assault in violation of 18 U.S.C. § 113(a)(5) under the theory of assault as an attempt to commit a battery and declined to make any findings under the alternate theory of assault by threat of immediate bodily injury.2 Lewellyn was sentenced to two years of probation, 50 hours of community service and a $10 special assessment.

ANALYSIS

The statute in question, entitled “assaults within maritime and territorial jurisdiction,” provides in relevant part:

(a) Whoever, within the special maritime and terri- torial jurisdiction of the United States, is guilty of an assault shall be punished as follows . . . (5) Simple 2 Similarly, we need not address this alternate theory, despite the govern- ment’s urging that we do so. 2638 UNITED STATES v. LEWELLYN assault, by a fine under this title or imprisonment for not more than six months, or both, or if the victim of the…