Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding D.C. No. CR 03-728-PA
The opinion of the court was delivered by: Hawkins, Circuit Judge
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
We primarily consider whether a jury instruction impermissibly relieved the government of its burden to prove beyond a reasonable doubt that the defendant used a "dangerous 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)).
Smith also challenges his sentence. Concluding that the district 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 proceedings consistent with this Opinion.
Prison officials at the federal penitentiary in Lompoc, California, 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 continued 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 abrasions on Smith's hands and lower lip. His examination of Jef-fries, however, revealed "very extensive injure[ies]," including: a "ten centimeters," "full-skin thick" laceration on Jeffries's right eyelid; an "eight centimeters full-skin thickness 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 80 days of good conduct time. Smith was subsequently released from prison in 2002.
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 dangerous 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 accumulating and melting down plastic meal trays to create a "weapon." Testifying as a medical expert,*fn1 Nisperos explained to the jury the severity of Jeffries's injuries, describing them as "very extensive" and detailing the locations of the specific wounds. When subsequently asked whether, "in your opinion, based on your experience, if someone 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 laceration 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 dangerous 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 indictment with assault with a dangerous weapon, in violation of Section 113(a)(3) of ...