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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11147
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM JAMES GILCHRIST,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:21-cr-00034-TKW-MJF-1
____________________
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2 Opinion of the Court 22-11147
Before ROSENBAUM, JILL PRYOR, and LAGOA, Circuit Judges.
PER CURIAM:
William James Gilchrist appeals his 96-month sentence for
assault with a dangerous weapon with intent to do bodily harm, in
a federal correctional institution, in violation of 18 U.S.C.
§ 113(a)(3). On appeal, Gilchrist argues that the district court erred
in finding that his Montana conviction for assault on a peace officer
was a predicate crime of violence for the career-offender enhance-
ment under U.S.S.G. § 4B1.2(a). Gilchrist also argues that the dis-
trict court erred by imposing a five-level enhancement to his of-
fense level based on U.S.S.G. § 2A2.2(b)(3)(B) because the victim’s
injuries in the instant case were not “serious bodily injuries,” but
rather were “bodily injuries” pursuant to U.S.S.G. § 2A2.2(b)(3)(A).
For the following reasons, we affirm.
I.
In November 2021, a grand jury charged Gilchrist with one
count of assault with a dangerous weapon, with intent to do bodily
harm, in a federal correctional institution, in violation of 18 U.S.C.
§ 113(a)(3) (“Count One”), and one count of knowingly making,
possessing, or obtaining a prohibited object, as defined in 18 U.S.C.
§ 1791(d)(1)(B), while being an inmate of a prison, in violation of
18 U.S.C. § 1791(a)(2) and (b)(3) (“Count Two”). Pursuant to a
written plea agreement, Gilchrist pled guilty to Count One in
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22-11147 Opinion of the Court 3
exchange for the government moving to dismiss Count Two at
sentencing.
The presentence investigation report (“PSI”) described the
following offense conduct. Gilchrist was serving a federal sentence
at the Federal Correctional Institution-Marianna, in Jackson
County, Florida. Video recordings show that, on July 30, 2021,
Gilchrist waited until inmate G.C. emerged from the shower, and
then struck him multiple times with a homemade weapon, a six-
inch object sharpened to a point on one end, while G.C. tried to
block the blows and fell to the floor. A Federal Bureau of Prisons
officer responded and directed Gilchrist to drop the weapon, and
Gilchrist discarded the weapon.
In setting forth his criminal history, the PSI included, in rel-
evant part, Gilchrist’s prior 2012 conviction for assault of a peace
officer under Montana law. While Gilchrist was in the Reintegrat-
ing Youthful Offenders correctional facility in Montana, he became
agitated and refused to return to his cell when requested to do so.
Gilchrist then ripped a metal faucet off of a sink and swung it in a
threatening manner. After refusing to drop the weapon, and caus-
ing damage to a door, a filing cabinet, and a mounted hand sanitizer
dispenser, Gilchrest tore another hand sanitizer dispenser off the
wall and threw it, striking a Juvenile Correctional Officer (“JCO”)
in the abdomen. Another JCO attempted to place Gilchrist in a
primary restraint technique, and Gilchrist struck the right side of
the JCO’s head and shoulder several times with the broken faucet.
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4 Opinion of the Court 22-11147
Gilchrest also injured two other non-JCO staff members in this in-
cident.
The PSI noted that Gilchrist’s initial base offense level was
14, pursuant to U.S.S.G. § 2A2.2(a). He received a four-level in-
crease under U.S.S.G. § 2A2.2(b)(2)(B) because he used a deadly
weapon. He also received a five-level increase under
§ 2A2.2(b)(3)(B) because G.C. sustained serious bodily injury.
Gilchrest thus had a total adjusted offense level of 23. The PSI also
noted that Gilchrist qualified as a career offender under U.S.S.G.
§ 4B1.1(b)(5), carrying an enhanced base offense level of 24, be-
cause Gilchrist was at least eighteen years old at the time of the
offense of conviction, the offense was a felony that was a crime of
violence, and he had at least two prior felony convictions for a
crimes of violence—the assault of the JCO in 2012 and a kidnapping
conviction in 2016. Gilchrist then received a three-level decrease
under U.S.S.G. § 3E1.1(a) and (b), respectively, for clearly demon-
strating acceptance of responsibility, and for assisting authorities in
the prosecution of his own misconduct by timely notifying them of
his intention to enter a guilty plea, bringing his total offense level
to 21.
Gilchrist had seven criminal-history points, which normally
would result in a criminal history category of IV, but because of his
career-offender status, his criminal history category became VI.
His sentencing guidelines imprisonment range was 77 to 96
months, with a statutory maximum of 10 years under 18 U.S.C.
§ 113(a)(3). Further, because the instant offense was committed
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22-11147 Opinion of the Court 5
while Gilchrist was imprisoned, his sentence for the instant offense
would be imposed to run consecutively to his undischarged term
of imprisonment, pursuant to U.S.S.G. § 5G1.3.
Gilchrest objected to the PSI’s increase under
§ 2A2.2(b)(3)(C) for permanent or life-threatening bodily injury as
well as the determination that his Montana Assault on a Peace Of-
ficer conviction was a crime of violence and, thus, a career-offender
predicate offense.
At sentencing, the district court first discussed the five-point
“serious bodily injury” enhancement in § 2A2.2(b)(3)(B) versus a
three-point “bodily injury” enhancement in § 2A2.2(b)(3)(A). After
hearing the parties’ arguments and looking through the medical
records of the victim, the district court found that the definition of
“serious bodily injury” involved either extreme physical pain, the
protracted impairment of a function, or requiring medical inter-
vention such as surgery. The district court noted that the victim’s
broken nose was enough for the court to find extreme physical pain
and overruled Gilchrest’s objection.
Turning to the career-offender enhancement, the district
court stated that it had reviewed the circumstances of the Montana
cases interpreting the statute and concluded that there needed to
be at least an implicit threat, made by the defendant and perceived
by the officer, that the defendant was going to cause harm or seri-
ous bodily injury through the use of a weapon, even if the officer
did not see the weapon but reasonably deduced that a weapon was
present. The court found that the statute at issue—Montana Code
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6 Opinion of the Court 22-11147
§ 45-5-210(1)(b)— fit within the definition of “crime of violence,”
such that the career-offender designation was appropriate, because
the statute required, at minimum, a threat to use force that creates
reasonable apprehension.
The district court found that a top-end guidelines sentence
was appropriate, and sentenced Gilchrist to a 96-month sentence,
to be served consecutively to his current sentence. While noting
that, had Gilchrist not met the career-offender requirements, his
guideline range would have been much lower at 51 to 63 months,
the district court found this range would not have taken into ac-
count the circumstances and seriousness of his prior offenses. The
district court then explicitly stated that the sentence it was going to
impose would have been the same in order to take into considera-
tion things that were not part of the guidelines calculation. The
district court focused on the violence involved in the instant of-
fense and Gilchrist’s prior history—specifically, the fact that it ap-
peared that Gilchrist’s custodial sentences had not deterred him
from violent conduct while in custody. The district court also
found that there was no apparent motive in this case, which aggra-
vated the violent nature of this case, and that the sentence needed
to deter not only Gilchrist, but also others in the prison environ-
ment from taking matters into their own hands, and to help them
understand that consequences for these kinds of actions would be
serious. And the district court again clarified that its sentence
would not have changed even if Gilchrist were not a career
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22-11147 Opinion of the Court 7
offender, and even if the serious-bodily-injury objection had been
sustained.
This appeal ensued.
II.
We review de novo whether the defendant’s prior convic-
tion qualifies as a “crime of violence” under the United States Sen-
tencing Guidelines. United States v. Dixon, 874 F.3d 678, 680 (11th
Cir. 2017). A district court’s error in calculating the guidelines
range warrants vacating the sentence, unless the error was harm-
less. United States v. Barner, 572 F.3d 1239, 1247 (11th Cir. 2009).
To determine the substantive reasonableness of a sentence, we
consider the totality of the circumstances under a deferential abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
This district court abuses its discretion when it “(1) fails to afford
consideration to relevant factors that were due significant weight,
(2) gives significant weight to an improper or irrelevant factor, or
(3) commits a clear error of judgment in considering the proper
factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)
(en banc) (quoting United States v. Campa, 459 F.3d 1121, 1174
(11th Cir. 2006) (en banc)). The party challenging the sentence
bears the burden of establishing that it is unreasonable based on the
facts of the case and the 18 U.S.C. § 3553(a) factors. United States
v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Remand based on a district court’s guidelines error is not ap-
propriate when the error did not impact the district court’s
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8 Opinion of the Court 22-11147
sentence and the ultimate sentence is substantively reasonable.
United States v. Keene, 470 F.3d 1347, 1349–50 (11th Cir. 2006). If
the district court states that its sentence would not have changed
with a different guidelines calculation, we assume there was an er-
ror, calculate the guideline range without the error, and analyze
whether the sentence would be substantively reasonable under
that guideline range, considering the § 3553(a) factors. Id. at 1349–
50. The § 3553(a) factors that the district court must consider in-
clude: the nature and circumstances of the offense; the history and
characteristics of the defendant; the need for the sentence to reflect
the seriousness of the offense, promote respect for the law, provide
just punishment for the offense, afford adequate deterrence to
criminal conduct, protect the public from further crimes of the de-
fendant, and provide the defendant with needed educational or vo-
cational training, medical care, or other correctional treatment in
the most effective manner; the kinds of sentences available; the
kinds of sentence and the sentencing range established for the ap-
plicable category of offense committed by the applicable category
of defendant as set forth in the guidelines; any pertinent policy
statements; the need to avoid unwarranted sentencing disparities;
and the need to provide restitution to any victims of the offense.
18 U.S.C. §§ 3553(a)(1), (a)(2)(B)–(D), (a)(3), (a)(4)(a), (a)(5)–(7).
Further, while a district court must evaluate all the of § 3553(a) fac-
tors, the weight accorded to each factor is within its sound discre-
tion. United States v. Ramirez-Gonzalez, 755 F.3d 1267, 1272–73
(11th Cir. 2014).
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22-11147 Opinion of the Court 9
As to the career-offender enhancement, § 4B1.1 of the Sen-
tencing Guidelines provides that:
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the defend-
ant committed the instant offense of conviction; (2)
the instant offense of conviction is a felony that is ei-
ther a crime of violence or a controlled substance of-
fense; and (3) the defendant has at least two prior fel-
ony convictions of either a crime of violence or a con-
trolled substance offense.
U.S.S.G. § 4B1.1(a). Further, § 4B1.2(a) of the Sentencing Guide-
lines defines a “crime of violence” as:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that–
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery, ar-
son, extortion, or the use or unlawful possession of a
firearm described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c).
U.S.S.G. § 4B1.2(a)(1)–(2).
Courts use the categorical approach to determine whether
an indivisible statute, i.e., when a statute defines a single crime only
with a single set of elements, qualifies as a crime of violence under
U.S.S.G. § 4B1.2(a). See Mathis v. United States, 579 U.S. 500, 504–
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10 Opinion of the Court 22-11147
05 (2016). Instead of focusing on the specific facts underlying the
crime of conviction, we consider whether the prior conviction has
an element of “use, attempted used, or threatened use of physical
force against the person of another.” See id. (noting that courts
focus solely on whether the elements of the crime of conviction
sufficiently match the elements of the generic offense, while ignor-
ing the particular facts of the case); U.S.S.G. § 4B1.2(a)(1). Physical
force “means violent force—that is, force capable of causing physi-
cal pain or injury to another person.” Johnson v. United States, 559
U.S. 133, 140 (2010) (emphasis in original). “If any—even the least
culpable—of the acts criminalized do not entail that kind of force,
the statute of conviction does not categorically match the federal
standard” and, therefore, cannot serve a predicate for the career-of-
fender enhancement. Borden v. United States, 141 S. Ct. 1817, 1822
(2021) (applying the categorical approach in a case involving the
Armed Career Criminal Act).
For offenses under state law, we are bound by a state court’s
interpretation of state law, including its determination of the ele-
ments of a crime under state law. Johnson, 559 U.S. at 138. The
version of Montana Code § 45-5-210(1) in effect at the time of
Gilchrist’s prior offense provided that:
(1) A person commits the offense of assault on a peace
officer or judicial officer if the person purposely or
knowingly causes:
(a) bodily injury to a peace officer or judicial officer;
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22-11147 Opinion of the Court 11
(b) reasonable apprehension of serious bodily injury
in a peace officer or judicial officer by use of a
weapon;
(c) bodily injury to a peace officer or judicial officer
with a weapon; or
(d) serious bodily injury to a peace officer or judicial
officer.
Mont. Code Ann. § 45-5-210(1) (2011). The least culpable act crim-
inalized is § 45-5-210(1)(b), as all other subsections involve an actual
injury, while subsection (b) involves only “reasonable apprehen-
sion” of an injury. See id. “Weapon” is defined under Montana
law as “an instrument, article, or substance that, regardless of its
primary function, is readily capable of being used to produce death
or serious bodily injury.” Id. § 45-2-101(79) (2011).
The Supreme Court of Montana has interpreted section
45-5-210 primarily in sufficiency-of-the-evidence cases. In State v.
Kirn, 274 P.3d 746 (Mont. 2012), the Supreme Court of Montana
noted that it has held “numerous times that it is not necessary that
the victim personally observe a weapon in order to experience rea-
sonable apprehension of serious bodily injury by use of that
weapon.” Id. at 748 (citations omitted). In Kirn, the officers re-
sponded to a noise complaint and were greeted by Kirn, who was
described as “very agitated, very animated, belligerent and frankly,
came to the door on the fight.” Id. at 747. As the officers moved
into the apartment, Kirn tried to push one of them out the apart-
ment and then went into his bedroom, reappeared in a stance that
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showed his left side while obscuring his right hand. Id. Both offic-
ers believed Kirn walked away to get a gun and were scared. Id. In
response to the officers drawing their weapons, Kirn raised both
hands and dropped a shotgun into a chair that was still within his
reach. Id. Kirn argued that the officers could not have had reason-
able apprehension of serious bodily injury by use of a weapon be-
cause they did not see the shotgun until he dropped it, but the Mon-
tana Supreme Court concluded that, under the circumstances,
where the officers faced an unpredictable situation with a belliger-
ent man, there was sufficient evidence to convict Kirn under sec-
tion 45-5-210(1)(b). Id. at 748.
Additionally, the Supreme Court of Montana has inter-
preted other statutes that use the same language. In State v. Hag-
berg, 920 P. 2d 86 (Mont. 1996), the court analyzed whether the
facts of the case failed to state a crime under Montana Code §
45-5-202, which provides that “[a] person commits the offense of
felony assault if he purposely or knowingly causes . . . (b) reasona-
ble apprehension of serious bodily injury in another by use of a
weapon.” Id. at 89–90 (quoting Mont. Code Ann. § 45-5-202). In
that case, police officers responded to a call from restaurant em-
ployees who heard yelling and banging coming from Hagberg’s
and his wife’s truck. Id. at 88. The couple drove away but were
pulled over by an officer, who noticed there was an empty gun hol-
ster on the seat between the couple. Id. The officer looked at Hag-
berg, who smelled like alcohol and was bent over with his arms
between his legs and his hands by the floor, and noticed that he had
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22-11147 Opinion of the Court 13
a glazed look on his face that “spooked” the officer. Id. After other
officers arrived, the officer approached the car again, opened the
door, and asked Hagberg to step out. Id. Hagberg reacted by try-
ing to close the car door on the officer’s shoulder while keeping his
other hand between his knees. Id. The officer grabbed Hagberg,
spun him out of the car, and brought him to the ground, after
which he saw that Hagberg had a loaded revolver in his hand. Id.
The officer then grabbed the revolver’s hammer to prevent the gun
from discharging. Id. The Supreme Court of Montana held that it
is not necessary that a victim personally observe a weapon for a
defendant to be charged with a violation of section 45-5-202. See
id. at 90. Turning to the facts of the case, the court found that the
officer had reason to be apprehensive of serious bodily injury be-
cause the officer observed that Hagberg smelled of alcohol,
sounded belligerent and had a “glazed look on his face,” that there
was an empty holster on the seat of the car, and that Hagberg
looked as if he was holding a gun out of the officer’s sight, were
sufficient to affirm Hagberg’s conviction for felony assault. Id.
at 90.
Similarly, in State v. Smith, 95 P.3d 137 (Mont. 2004), the
Supreme Court of Montana, in the context of a case involving a
defendant convicted of assault with a weapon under Montana
Code § 45-5-213, addressed whether the victim must “see” the
weapon as an element of that crime. Id. at 141. That statute simi-
larly makes it a crime to cause “reasonable apprehension of serious
bodily injury in another by use of a weapon or what reasonably
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14 Opinion of the Court 22-11147
appears to be a weapon.” Id. at 140. After reviewing its precedent,
including cases interpreting the “nearly identical” section 45-5-202,
the Supreme Court of Montana held that “it is not technically cor-
rect that ‘use of a weapon’ (or, presumably, what appears to the
victim to be a weapon) is a requisite element of the offense.” Id. at
143. In doing so, the court noted that the caselaw permitted two
different applications of the language in section 45-5-213(b): (1) the
crime is committed if a person uses a weapon or what reasonably
appears to be a weapon to cause reasonable apprehension of seri-
ous bodily injury in the victim; and (2) where a person causes rea-
sonable apprehension that the victim will sustain serious bodily in-
jury from a weapon, if it reasonably appears to the victim that a
weapon is involved, whether actually seen or not. Id. at 141–43.
Here, we conclude that any alleged error in the district
court’s application of the career-offender enhancement under
U.S.S.G. § 4B1.1 was harmless. The district court explained that,
had the career-offender enhancement not been applied, Gilchrest’s
guidelines range would have been 51 to 63 months, but indicated
that it would have imposed the same sentence on Gilchrist if it had
not applied the enhancement. In doing so, the court focused on
Gilchrest’s prior history of violence—in particular, his violence in
custody—and the need for deterrence, aligning with the § 3553(a)
factors of the history and characteristics of the defendant, the need
for the sentence to reflect the seriousness of the offense, and the
need to provide adequate deterrence to the criminal conduct. It
was within the district court’s discretion to weigh Gilchrest’s
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22-11147 Opinion of the Court 15
history of violence and the need for deterrence in this case, and we
conclude that Gilchrist’s sentence is substantively reasonable. Fur-
ther, notwithstanding the district court’s statement, the court did
not err in sentencing him as a career offender because his Montana
conviction for Assault of a Peace Officer was a “crime of violence,”
and, therefore, a predicate offense for the career-offender enhance-
ment under § 4B1.1.
Accordingly, we affirm as to this issue.
III.
We review for clear error a district court’s determination
that a victim’s injuries meet the threshold for a bodily-injury en-
hancement. See United States v. Torrealba, 339 F.3d 1238, 1242,
1246 (11th Cir. 2003) (holding that the district court did not clearly
err in determining that the victim’s injuries were permanent or
life-threatening under U.S.S.G. § 2A4.1(b)(2)(A), which is the guide-
lines provision governing injuries sustained during kidnapping of-
fenses and which uses the same definitions in U.S.S.G. § 1B1.1 that
govern assault offenses). We will reverse for clear error only where
we are left with a definite and firm conviction that a mistake was
committed. United States v. Rothenberg, 610 F.3d 621, 624 (11th
Cir. 2010). Further, we may affirm for any reason supported by the
record, even if that reason was not relied upon by the district court.
United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012).
Where a defendant objects to a factual finding that is used to
calculate his guideline range, the government bears the burden of
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16 Opinion of the Court 22-11147
establishing the disputed fact by a preponderance of the evidence.
United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005).
“The preponderance of evidence is a relaxed evidentiary standard,
however, it does not grant the court a license to sentence a defend-
ant in the absence of sufficient evidence when that defendant has
properly objected to a factual conclusion.” United States v.
Agis-Meza, 99 F.3d 1052, 1055 (11th Cir. 1996).
The Sentencing Guidelines provide that, if the victim of an
assault sustained bodily injury, the offense level is increased accord-
ing to the seriousness of the injury. U.S.S.G. § 2A2.2(b)(3). “Bodily
injury” is defined as “any significant injury; e.g., an injury that is
painful and obvious, or is of a type for which medical attention or-
dinarily would be sought.” U.S.S.G. § 1B1.1, cmt. n.1(B). “Serious
bodily injury” is defined as an “injury involving extreme physical
pain or the protracted impairment of a function of a bodily mem-
ber, organ, or mental faculty; or requiring medical intervention
such as surgery, hospitalization, or physical rehabilitation.” Id.
cmt. n.1(M). If the victim sustains “bodily injury,” three levels are
added to the base offense level, and if the victim sustains “serious
bodily injury,” five levels are added. U.S.S.G. § 2A2.2(b)(3)(A)–(B).
First, we conclude that any alleged error in the district
court’s application of § 2A2.2(b)(3)(B) was harmless because the
court stated that it would have sentenced Gilchrist the same had it
not applied that five-level enhancement, and Gilchrist’s sentence is
substantively reasonable for the reasons discussed above. Even dis-
regarding the district court’s statement, however, the court did not
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22-11147 Opinion of the Court 17
clearly err in applying § 2A2.2(b)(3)(B). Under the preponderance-
of-the-evidence standard, the district court, after reviewing the vic-
tim’s medical records, did not clearly err in finding that the victim
suffered “serious bodily injury,” rather than just “bodily injury,”
based on the victim’s broken nose. Further, we note that, even
though the district court did not rely on these injuries in its finding,
the victim reportedly lost consciousness and was found “incoher-
ent” and “covered in blood,” from the stab lacerations he received
from Gilchrist. Based on this record, the district court did not
clearly err in finding that the victim suffered “serious bodily in-
jury.”
Accordingly, we affirm as to this issue.
IV.
For the reasons stated, we affirm Gilchrest’s sentence.
AFFIRMED.