PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAKOTA ALLEN WOLFNAME, Defendant - Appellant. No. 15-8025

________________ _________________ Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:14-C R-00223-SWS-1)

________________ _________________ Howard A. Pincus, Assistant Federal Public Defender ),Virginia L. Grady, with him on the briefs) Office of the Federal Public Defender, Denver, Colorado, for DefendantAppellant. Jason M. Conder, Assistant United States Attorn ey (Christopher A. Crofts, United States Attorney, and Kerry J. Jacobson , Assistant United States Atto rney, with him on the brief), Office of the United States Attorney, La nder, Wyoming, for Plaintiff-Appellee.

________________ _________________ Before TYMKOVICH , Chief Judge, HARTZ and MORITZ , Circuit Judges.

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ In this case, the parties ask us to decide whether assault is an element of every conviction under 18 U.S.C. § 111(a)(1)—a statute that prohi bits forcibly resisting, FILED United States Court of Appeals Tenth Circuit 

### August 26, 2016 Elisabeth A. Shumaker Clerk of Court2 opposing, impeding, intimidating, interfering with, or assaulting a federal officer engaged in the performance of his or her official duties. As it turns out, however, an earlier pa nel of this court has already answered that question. See United States v. Hathaway , 318 F.3d 1001, 1007-10 (10th Cir. 2003) (defining each of § 111’s proscribed offenses based on the type of assault involved). Thus, the district court in this case erred in failing to in struct the jury that to convict Jakota Wolfname of resisti ng or interfering w ith an officer under § 111(a)(1), the jury had to find that Wolfname assaulte d that officer. But that doesn’t necessarily mean we can grant Wolfname a new trial. Because he failed to challenge the elements instruction be low, we may reverse only if the district court’s failure to adequately instruct the jury satisfies our test for plain error. Under the facts of this case, we conclude that it does. The error was clear and obvious under Hathaway . It affected Wolfname’s subs tantial rights. And it seriously affected the fairness, integrity , or public reputation of Wolf name’s trial. Accordingly, we reverse his conviction and remand for further proceedings. B ACKGROUND While responding to an early-morning 911 call, Blaine Parnell—a police officer with the United Stat es Bureau of Indian Affa irs—attempted to arrest Wolfname on two outstanding tribal warrants . Parnell ordered Wolfname to put his hands behind his back. But Wolfname had other ideas: he took off running instead. Parnell gave chase and even tually caught up when Wolfna me hit a barbwire fence. Both men went over the fence, and Wolfna me struggled with Parnell as Parnell3 worked to subdue him. Parn ell was eventually able to handcuff Wolfname. But not before Wolfname managed to grab Parn ell’s thumb and pull it towards Parnell’s wrist. As the result of his flight from Parnell and the ensuing scuffle, a grand jury indicted Wolfname for “knowingly and fo rcibly assault[ing], resist[ing], and interfer[ing] with” Parnell while Parnell “was engaged in the performance of his official duties, which resulted in bodily injury to . . . Parnell.” See § 111(a)(1), (b). At trial, Wolfname didn’t dispute that he ran from Parnell. But he did testify that Parnell placed him in a chokehold onc e the two men ended up on the other side of the barbwire fence. As a result, Wolfname said, he was unable to breathe. And while Wolfname admitted that he grabbed Pa rnell’s hand, he denied that he intended to injure Parnell. Instead, Wo lfname explained, “I just wa nted to breathe, and that’s why I did that, pulled his arm fro m my neck.” R. vol. 3, 260. Parnell, however, told a different story. He maintained that he put Wolfname in a headlock, not a chokehol d. And he insisted that un like a chokehold, a headlock only restricts a suspect’s movement; it doesn ’t interfere with a suspect’s breathing. Besides, Parnell testified, Wolf name didn’t grab his thumb until after Parnell released him from the headlock. At the close of evidence, the governmen t asked the jury to convict Wolfname of “resisting, interfering [with ], and assaulting” Parnell. R. vol. 3, 361. In doing so, it equated assault with bei ng “willing to injure.” Id. at 362. The government also asked4 the jury to find that Wolfname made physical contact with, and inflicted bodily injury upon, Parnell. The government got most of what it asked for. The jury found Wolfname guilty of resisting and interfering with Parn ell in violation of § 111(a)(1). It also found that Wolfname made phys ical contact with Parnell. But the jury wrote, “No,” next to the assault option on the verdict form. R. vol. 2, 11. And despite testimony from Parnell and his orthopedic surgeon indi cating that Parnell suffered damage to a ligament in his thumb during the struggle, the jury also dec lined to find that Wolfname inflicted bodily injury on Parnell. The district court imposed a 24-mont h prison sentence. Wolfname appeals. D ISCUSSION On appeal, Wolfname argues that we s hould reverse his conviction because the district court erred in failing to instruct the jury on assau lt as an element of resisting and interfering with an officer under § 111( a)(1). But Wolfname didn’t raise this argument below. So we review only for plain error. See United States v. Makkar , 810 F.3d 1139, 1144 (10th Cir. 2015). Under our plain-error test, we can reverse Wolfname’s conviction only if (1) an error occurred; (2) the erro r was plain; (3) the error affected Wolfname’s subs tantial rights; and (4) the e rror “seriously affected the fairness, integrity, or public reput ation of a judicial proceeding.” Id.5 I. The district court erred in failing to instruct the jury that assault is an element of resisting or interfering with an officer under § 111(a)(1). Wolfname argues that common-law assault, i.e., an attempt or threat to injure Parnell, was an essential element of his conviction for resisti ng and interfering with an officer under § 111(a)(1). Thus, he mainta ins, the district cour t erred in failing to instruct the jury on that elemen t. In support, Wolfname cites United States v. Hathaway , 318 F.3d 1001 (10th Cir. 2003). In Hathaway , the issue before us was whether § 111 sets forth separate offenses with separate elements, or whet her § 111 instead contains a single offense and separate sentencing factors. See id. at 1006 (explaining that unlike sentencing factors, “elements must be charged in the indictment, s ubmitted to a jury, and proven by the [g]overnment beyond a reasonable doubt.” (quoting Jones v. United States , 526 U.S. 227, 232 (1999))). The ve rsion of § 111(a) at issue in Hathaway provided: (a) In general. —Whoever— (1) forcibly assaults, resists, oppos es, impedes, intimidates, or interferes with [certain individu als] while engage d in or on account of the performance of official duties . . . shall, where the acts in violation of this section constitute only simple assault , be fined under this title or im prisoned not more than one year, or both, and in all other cases , be fined under this title or imprisoned not more than three years, or both. Id. at 1005 (emphasis added) (quoting § 111 (2000)). Citing Jones , we easily concluded that § 111(a) proscribes two separate offenses—a misdemeanor offense and a felony offense—“each element of which must be charged in the indictment and pr oven to the jury beyond a reasonable doubt.”6 Id. at 1107. Then we moved on to the more difficult task: delinea ting those elements. That endeavor, we pointed out, turned pr imarily on the definitions of two phrases: “simple assault” a nd “all other cases.” Id. First, we defined “assault,” in relevant part, as “a willful attempt to inflict injury upon the person of another, or . . . a threat to inflict in jury upon the person of another.” Id. at 1008 (quoting United States v. Joe , 831 F.2d 218, 220 (10th Cir. 1987)). Next, we defined “simpl e assault” as assault (i.e., an attempt or threat to injure) that “does not involve actual physical contact, a deadly or dangerous weapon, bodily injury, or the intent to commit murder or any fel ony other than those referred to in § 113(a)(2).” Id. Finally, with this definition of “simple as sault” in hand, we defined § 111(a)’s two offenses. Critically—at least for purposes of analyzing Wolfname’s argument in this case—we did so based on the type of assault involved in each. First, there’s a misdemeanor § 111(a) violation. This offens e requires proof of si mple assault, i.e., “assault which does not involve actual phys ical contact, a deadly or dangerous weapon, bodily injury, or the intent to comm it” certain felonies. Id. Second, there’s a felony § 111(a) violation. That offense requires proof of “all other cases” assault, i.e., “any assault that involves actual physical c ontact or the intent to commit [certain7 felonies] but does not involve a deadly or dangerous weapon or bodily injury.” Id. at 1008-09. 1 Based on this analysis, Wolfname argues that Hathaway made assault an essential element of every § 111(a)(1) offense. We agree. True, we didn’t explicitly state in Hathaway that the government must prove as sault when it alleges a defendant violated § 111(a)(1) by resi sting, opposing, impeding, intimidating, or interfering with—rather than assaulting—an officer. But that holding is implicit in what we did
say. In Hathaway , we set out to “determine the elem ents of the offense or offenses proscribed by § 111(a).” Id. at 1006. We then divided § 111(a) into two offenses: a misdemeanor and a felony. Finally, we defi ned each of those offenses based on the type of assault involved. See id. at 1009 (“[T]he only diffe rence between a felony offense and a misdemeanor offense under § 111( a) is the nature of the assault.”). Because a § 111(a)(1) convicti on for resisting, opposing, impeding, intimidating, or interfering must fall into one of these two categories, a conviction for any of these acts necessarily involves—at a minimum—simp le assault. Accordingly, assault is necessarily an element of a ny § 111(a)(1) conviction under Hathaway

. This conclusion should come as no surpri se; we’re hardly the first to reach it. In fact, at least three of our sister circuits have concluded that Hathaway “leaves no room for a [§ 111(a)] convicti on that does not involve at le ast some form of assault.”

1 We also indicated that § 111(b) proscr ibes a third (felony) offense: one that involves assault with a deadly or danger ous weapon or assault that causes bodily injury. Hathaway , 318 F.3d at 1007-09.8 United States v. Chapman , 528 F.3d 1215, 1219 (9th Cir. 2008). Accord United States v. Green , 543 F. App’x 266, 272 n.9 (3d Cir. 2013) (unpublished) (interpreting Hathaway as “finding some assaultive conduct required to violate § 111”); United States v. Davis , 690 F.3d 127, 135 ( 2d Cir. 2012) (citing Hathaway as example of case that treats assaultive condu ct as essential element of any § 111(a) misdemeanor conviction). Yet despite this consensus, the government resists this reading of Hathaway . In support, it advances three general arguments. First, the government argues that the Hathaway court was only required to decide the elements of § 111(a)(1) assault, not the elements of § 111(a)(1) resisting, opposing, impeding, intimidating, or interf ering. This is so, the government says, because the defendant in Hathaway conceded that we could sustain his conviction for misdemeanor assault under the statute. T hus, the government asserts, we had no reason to address how § 111(a)(1) might de fine a conviction based on any of the other prohibited acts. We disagree. It’s not at all clear that the defendant’s concession in Hathaway was as specific as the government suggest s. Instead, it appears the defendant only generally conceded there that we could sustain a misdemeanor conviction under the statute—not a misdemeanor conviction for assault

. See 318 F.3d at 1010 (“[The defendant] does not contend that he was not validly convicted of violating § 111(a); instead, he argues that in light of the defi cient indictment, the district court could only have viewed his conviction as one for the misdemeanor.”). Moreover, the indictment in Hathaway alleged that the defendant assaulted, resisted, opposed,9 impeded, intimidated, and in terfered with the victim. Id. at 1004. Thus, in holding that the indictment was “ins ufficient to allege a felony violation of § 111(a)(1),” the question of how to define a felony conv iction based on each of those acts was squarely before us. Id. at 1010. Next, the government directs our atten tion to two unpublis hed Tenth Circuit

cases: United States v. Waweru , 628 F. App’x 608 (1 0th Cir. 2015), and United States v. Dale , 539 F. App’x 880 (10th Cir. 2013). According to the government, we affirmed the defendants’ § 111(a)(1) convic tions in both of these cases despite the absence of “conduct that was . . . charged or proven as ‘assault.’” Aplee. Br. 21. Thus, the government deduces, assault cannot be an element of every § 111(a)(1) conviction under Hathaway ; if it were, this court would have reversed the defendants’ convictions in Waweru and Dale

. But as the government conceded at oral argument, it doesn’ t appear that the defendant in Waweru ever argued that assa ult was an element of his conviction under Hathaway . The same is true in Dale . Nor does it appear th at we considered the question sua sponte in either case. 2 Thus, these cases wouldn’ t be precedential even if they were published. See 10th Cir. R. 32.1(A) (noti ng that unpublished decisions aren’t precedential); Merrifield v. Bd. of Cty. Comm’rs , 654 F.3d 1073, 1084 (10th Cir. 2011) (“Questions which merely lurk in the record , neither brought to the attention of the court nor ruled upon, are not to be considered as having been so

2 In fact, neither case even cites Hathaway

.10 decided as to constitute precedents.” (quoting Webster v. Fall , 266 U.S. 507, 511 (1925))). Finally, the government ma kes a last-ditch effort: it argues that adopting Wolfname’s reading of Hathaway will result in an interpretation of § 111 that (1) renders some of the statute’s language superfluous; (2) is inc onsistent with other circuits’ interpretation of the statute; and (3) contradicts le gislative intent. But even assuming the government could wi n that particular battle, it would still lose the war. That’s because even if the government ’s assertions are true, it doesn’t mean that Wolfna me’s interpretation of Hathaway is incorrect. At best, it means that Hathaway ’s interpretation of § 111 is in correct. And even if we assume that’s the case, we lack authority to overrule Hathaway ’s interpretation of § 111 absent en banc review or an in tervening Supreme Court decision. See United States v. Brooks , 751 F.3d 1204, 1209 (10th Cir. 2014). In short, we are bound by Hathaway

. And Hathaway makes assault—i.e., an attempt or threat to injure—an element of every § 111(a) violation under the vers ion of the statute then in effect. Of course, that doesn’t nece ssarily mean that the inst ruction in this case was deficient. As both parties point out, Congress subseque ntly amended § 111(a) in 2008. And according to the government, the 2008 amendment clarif ied “that proof of an underlying technical assau lt is not required for a conv iction on the statute’s other five prohibited forms of forcib le conduct.” Aplee. Br. 19. We think that the amendment did just the opposite. In relevant part, the statute now reads:11 (a) In general. --Whoever-- (1) forcibly assaults, resists, opposes, impede s, intimidates, or interferes with [certain individu als] while engage d in or on account of the performance of official duties . . . shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony , be fined under this title or imprisoned not more than 8 years, or both. § 111(a) (2008) (emphasis added). Essentially, Congress amended § 111(a) to replace the phrase “in all other cases” with a slightly modified ve rsion of the definition we gave that phrase in Hathaway

. Compare Hathaway , 318 F.3d at 1008-09 (defining “all other cases” to include “any assault that involves actual physi cal contact or the intent to commit” certain felonies), with Court Security Improvement Act of 2007, Pub. L. No. 110–17 7, 121 Stat 2534 (“striking ‘in all other cases’ and inserting ‘where such acts involve physi cal contact with the victim of that assault or the intent to commi t another felony’”). In short, the 2008 amendment didn’ t controvert our holding in Hathaway ; instead, it effectively codified it. Thus, Hathaway remains good law. And under Hathaway , assault is an element of any § 111(a)(1) offense. Accordingly, the district court erred in failing to instruct the jury that, to convict Wolfname of resisting or interfe ring with Parnell, it had to find that Wolfname attempted or thr eatened to injure him.12 But that still doesn’t e nd our inquiry. Wolfname failed to raise his assault-is-an-element argument below. So we can only reve rse his conviction if we conclude that the district court’ s instructional error satisfies our plainerror test—i.e., if the instructional erro r (1) was plain; (2) affected Wolfname’s substantial rights; and (3) “seriously a ffected the fairness, integrity, or public reputation of a judicial proceeding.” Makkar , 810 F.3d at 1144. We turn to those matters next. II. The instructional error was plain. “An error is ‘plain’ if it is ‘clear or obvious’ unde r ‘current, well-settled law.’” United States v. Thornburgh , 645 F.3d 1197, 1208 (10th Cir. 2011) (quoting United States v. Whitney , 229 F.3d 1296, 1308-09 (10th Cir. 2000)). “In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed the issue.” Id. (quoting United States v. Ruiz-Gea , 340 F.3d 1181, 1187 (10th Cir. 2003)). According to the governme nt, “neither the Supreme Court nor the Tenth Circuit has directly addressed” whet her assault is an element of every § 111(a)(1) conviction, and the “circuits [that] have considered the matter are split.” Aplee. Br. 7. Thus , the government concludes, “there cannot be a finding of [plain] error.” Id. See United States v. Teague , 443 F.3d 1310, 1319 (10th Cir. 2006) (“If neither the Supreme Court nor th e Tenth Circuit has ruled on the subject, we cannot find plain error if the authority in other circuits is split.”).13 We agree with the government that th e circuits are spl it on this issue. Compare Davis , 690 F.3d at 135-36 (requiring pr oof of assaultive conduct to support misdemeanor § 111(a) conviction for resisting), with United States v. Williams , 602 F.3d 313, 3 18 (5th Cir. 2010) (holding that misdemeanor § 111(a)(1) conviction for resisting doesn’ t require proof of assaultive conduct). Likewise, we agree that if neither this court nor the Supreme Court has directly addressed a particular issue, then a circ uit split on that issue weighs against a finding of plain error. See United States v. Story , 635 F.3d 1241, 1248 (10th Cir. 2011). But that’s as far as our agreem ent with the government can extend because—contrary to the government’s as sertion—we have, in fact, “directly addressed” this issue. Aplee. Br. 7. See Hathaway , 318 F.3d at 1005-10. In Hathaway , we explained that to resolve the issue before us, we had to “determine the elements of the offense or offenses proscribed by § 111(a).” 318 F.3d at 1006. We then held that some type of assault is an element of every § 111(a) conviction. See id . at 1009 (“[T]he only difference between a felony offense and a misdemeanor offense under § 111(a) is the nature of the assault” involved. (emphasis added)). An d, as we discussed above, nothing in the 2008 amendment calls that holding into question. Accordingly, the fact that other circuits are split on the issue of whether assault is an element of every § 111(a) c onviction doesn’t prevent us from14 characterizing the error in this case as plain. 3 See Teague , 443 F.3d at 1319 (stating that circuit split pr ecludes finding of plain error if neither this court nor the Supreme Court has addressed the issue); see also Makkar , 810 F.3d at 1145 (reasoning that “another circuit’ s commission of an error doesn’t necessarily and always ‘control’ the plain error inquiry” (quoting Ahidley , 486 F.3d at 1193 n.7)). In short, an error is plain if it is “contrary to well-settled law.” Thornburgh , 645 F.3d at 1208 (quoting Ruiz-Gea , 340 F.3d at 1187). Because Hathaway is well-settled law in this circuit , the district court’s failure to instruct the jury in accord with Hathaway amounts to plain error. See id.

3 Although the government doe sn’t explicitly argue as much in asserting that the instructional erro r isn’t plain, circu its are also split on the meaning of the 2008 amendment itself. Compare Davis , 690 F.3d at 136 (concluding that amendment itself demonstrates Congress’ intent to re quire proof of assaultive conduct), with Williams , 602 F.3d at 317 (concluding that amendment “s upports the conclusion that § 111(a)(1) prohibits more than assault, simple or otherwise”); see also United States v. Gagnon , 553 F.3d 1021, 1025 n.4 (6th Ci r. 2009) (stating that 2008 “amendment does little to clarify . . . whether § 111 is limited only to assaults or includes all the actions spelled out in § 111(a)”). We decline to rely on this circuit split as persuasive evidence that the error in this case isn’t plain for two reasons. First, both the Sixth Circuit in Gagnon and the Fifth Circuit in Williams were writing on a clean slate; neither had to take Hathaway ’s analysis into account in interpreting th e 2008 amendment. Second, in discussing the amendment, both the Sixth Circuit in Gagnon and the Fifth Circuit in Williams elided Congress’ use of the phrase “involve[s] physical contact with the victim of that assault .” Court Security Improvement Act of 2007, Pub. L. No. 110 –177, 121 Stat 2534 (e mphasis added)). In fact, the Gagnon court went so far as to replace that phrase with ellipses in quoting the amended version of the statute. 533 F.3d at 1025 n.4. Beca use this phrase unambiguously expresses that assault is an element of ever y felony § 111(a) conviction, a circuit split on the issue wouldn’t dissuade us from finding plain error even if the government had preserved this argument. See United States v. Ahidley , 486 F.3d 1184, 1193 and n.7 (10th Cir. 2007) (finding plain error despite circ uit split because statutory language was unambiguous); Anderson v. U.S. Dep’t of Labor , 422 F.3d 1155, 1174 (10th Cir. 2005) (“The failure to raise an issue in an opening brief waives that issue.”).15 III. The instructional error affected Wo lfname’s substantial rights and the fairness, integrity, or public reput ation of a judicial proceeding. For purposes of our plain-error test , “[a]n error seri ously affects the defendant’s substantial rights . . . when the defendant dem onstrates ‘that there is a reasonable probability that, but for the erro r claimed, the result of the proceeding would have been different.’” United States v. Rosales-Miranda , 755 F.3d 1253, 1258 (10th Cir. 2014) (quoting United States v. Mendoza , 698 F.3d 1303, 1310 (10th Cir. 2012)). “A reasonable probab ility is a probability sufficie nt to undermine confidence in the outcome.” Id. (quoting United States v. Hasan , 526 F.3d 653, 665 (10th Cir. 2008)). Here, the district court fa iled to instruct the jury th at to convict Wolfname of resisting or interfering with Parnell, it had to find that Wolfname assaulted, i.e., attempted or threatened 4 to injure, him. See Hathaway , 318 F.3d at 1008 (defining assault). And, but for that error, we agr ee that there is a r easonable probability the jury would have reached a different verd ict. After all, Wolfname unequivocally denied that he intended to injure Parne ll. Instead, Wolfname testified, he only grabbed Parnell’s hand and pulled Parnell’s ar m away from his neck so that he could breathe. Critically, after hearing this test imony, the jury declined to convict Wolfname of assaulting Parnell—even after the prosecutor equated assault with being “willing to injure.” R. vol. 3, 362. These facts, standing alone, are sufficient to

4 The government doesn’t suggest that it alleged, let alone proved, that Wolfname threatened to inju re Parnell. Accordingly, we limit our inquiry to its allegation that Wolfname at tempted to injure him.16 undermine our confidence in the verdict. See Rosales-Miranda , 755 F.3d at 1258 (quoting Hasan , 526 F.3d at 665). Nevertheless, despite the jury’s refusal to convic t Wolfname of assaulting Parnell, the government maintain s that the district court’s fa ilure to instru ct the jury that assault was an element of resisting and interfering with Parnell didn’t affect Wolfname’s substantial rights. First, the government poi nts out that in convicting Wolfname, the jury necessarily found that he acted forc ibly, i.e., that he used, attempted to use, or threatened to us e physical force. Second, it argues that Wolfname did, in fact , injure Parnell. But a finding that Wolfname used force (or attempted or threatened to use it) isn’t the same as a finding that Wolf name attempted or threatened to inflict injury

. Likewise, a finding that Wolfname actually injured Parnell doesn’t necessarily equate with a finding that Wolfname intended to injure him. Moreover, the jury explicitly rejected the government’s asse rtion that Wolfname injured Parnell. Accordingly, we agree with Wolfname that the district court’s erroneous failu re to instruct the jury on the element of assault affect ed his substantial rights. It also affected the fairne ss, integrity, or public reputa tion of the trial. True, a district court’s failure to instruct the jury on an essential element of the crime charged won’t always satisfy the four th prong of the plain-error test. See, e.g. , Johnson v. United States , 520 U.S. 461, 469-70 (1997) (dec lining to reverse under fourth prong of plain-error test because, even assumi ng failure to instruct on element of offense affected defendant’s substantial rights, evidence supporti ng omitted element was17 overwhelming and uncontr overted). But here, the evidence of the omitted element—that Wolfname threatened or a ttempted to injure Parnell— was neither overwhelming nor uncontroverted. Thus, we agree th at reversal is appropriate. C ONCLUSION The circuits may be split on the meaning of § 111. Bu t they’re not split on the meaning of Hathaway . That opinion, as the Ninth Ci rcuit has pointed out, “leaves no room for a [§ 111(a)] convicti on that does not involve at le ast some form of assault.” Chapman , 528 F.3d at 1219. Accord Green , 543 F. App’x at 272 n.9; Davis , 690 F.3d at 135. Moreover, our analysis in Hathaway appears not only to have survived the 2008 amendment to § 111(a), but perhaps to have inspired it. See 153 Cong. Rec. S15789-01 (daily ed. Decembe r 17, 2007) (statement of Sen. Kyl) (indicating that 2008 amendment “codif[ied]” Hathaway ’s “thoughtful explanation” regarding meaning of phrase “in all other cases”). Acco rdingly, the district court’s failure to instruct the jury on the esse ntial element of assault co nstitutes plain error. And because that plain error affected Wolfna me’s substantial right s and the fairness, integrity, or public reputation of his tria l, we reverse Wolfna me’s conviction and remand for further proceedings.