PUBLISH
UNITED STATES COU RT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES GONZALES, Defendant - Appellant. No. 18-2170

________________ _________________ Appeal from the United S tates District Court for the District of New Mexico (D.C. No. 1:18- CR-00585-JAP-1)

________________ _________________ Brian A. Pori, Assis tant Federal Public Defender, Albuquerque, New Mexico, for the Defendant-Appellant. Marisa Ong, Assistant United States Attorney (Dust in C. Segovia , Assistant United States Attorney, and John C. Anderson, United States Attorney, District of New Mexico), Office of the United States Attorney, Albuquerque, New Mexico, for the Plaintiff-Appellee.

________________ _________________ Before MATHESON , SEYMOUR, and BACHARACH , Circuit Judges.

________________ _________________ BACHARACH , Circuit Judge.

________________ _________________ Mr. James Gonzales pl eaded guilty to posse ssing a firearm afte r a felony conviction. See 18 U.S.C. § 922(g)(1). The district court sentenced FILED United States Court of Appeals Tenth Circuit 

### July 29, 2019
Elisabeth A. Shumaker Clerk of Court2 him to 27 months’ imprisonment and 3 years of supervised releas e. In selecting this sentence, the court enhanced the base-offense le vel under Sentencing Guideline § 3A1.2(c)(1), which applies when the defe ndant assaults a law-enforcement officer during the course of the off ense. But the court erred in interpreting § 3A1.2(c)(1), so we reverse.
1. While fleeing from Albuquerque police officers, Mr. Gonzales pulls a firearm and drops it. The sentencing issue springs f rom a 2018 confrontation between Mr. Gonzales and Albuquer que police officers. W hile trying to arres t Mr. Gonzales on outstanding warran ts, the police of ficers conducted a traffic stop. After the cars came to a s top, the officers approached an d Mr. Gonzales ran away. As Detective Eric End zel closed in, Mr. Go nzales lifted up his shirt and pulled a gun. According to D etective Endzel, Mr. Gonzales b riefly applied a “firing grip” but then dropped the gun. R. vol. 4, at 19. After dropping the gun, Mr. Gonzales r eached forward, b ut he was unab le to grab the gun and it fell to the ground . Detective Endzel believed th at Mr. Gonzales was trying to hold on to the gun. Mr. G onzales contends that the evidence also supported a finding that he had intentionally dis carded the
gun.3 2. Section 3A1.2(c)(1) requires pro of of an intent to instill fear of bodily harm. The district court ruled that

 Mr. Gonzales had failed to present evidence regarding his intent and

 § 3A1.2(c)(1) had no intent requirement. This reasoning reflects an erroneous interpretation of § 3A1.2( c)(1). We engage in de novo r eview of the distric t court’s interpreta tion of this guideline provision. United States v. Robertson , 350 F.3d 1109, 1112 (10th Cir. 2003). In applying de novo revie w, we consider (1) t he guideline’s language and scholarly commentaries on the common-l aw definition of assault, (2) our case law defining the crime of a ssault, and (3) other circuits’ interpreta tions of § 3A1.2(c)(1).
A. The Common-Law Definition of Assault We begin with the language of § 3A1.2(c)(1). It increases a defendant’s base-offense level [i]f, in a manner creating a substantial risk of serious bodily injury, the defendant or a p erson for whose conduct the defendant is otherwise accoun table . . . knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom[.] U.S.S.G. § 3A1.2(c)(1) (emphasis added). The parties agree that Mr. Gonzal es created a substantial risk of serious bodily injury a nd knew that police officers were trying to arrest4 him. Thus, Mr. Gonzales’s challenge to the § 3A1.2(c)(1) enhanc ement turns on whether he assaulted a law-en forcement officer. We interpret guideline provisio ns in the same manner as statut es and court rules . United States v. Duran , 127 F.3d 911, 918 (1 0th Cir. 1997). If a guideline term like “assault” is undefined, we generally cons ider its established common-law defin ition (if there is one). Chapman v. United
States , 500 U.S. 453, 461–62 (1991); United States v. Checora , 175 F.3d 782, 790 (10th Cir. 1999 ). To determine the common-law definiti on, courts have considered scholarly commentary. See United States v. Delis , 558 F.3d 177, 180–81 (2d C ir. 2009) (relying on treatises to determ ine the common-law definition of assault); see also United St ates v. Molinar , 881 F.3d 1064, 1071 (9th Cir. 2017) (stating tha t the court’s inter pretation of generic definitions of common-law crimes is “guided by scholarl y commentary” (quoting United States v. Esparza-Herrera , 557 F.3d 1019, 1023 (9th Cir. 2009))). Two forms of assault are rec ognized under the common law:
1. an attempted battery and
2. the deliberate infli ction of a reasonab le fear of injury. United States v. Hampton , 628 F.3d 654, 660 (4th Cir. 2010). On the first form of an assault, the governmen t does not question the elemen t of specific intent. See 2 Wayne R. LaFave, Substantive Criminal Law § 16.3(a), at 769 (3d ed. Thomso n Reuters 2018) (“An attempt to commit5 any crime requires a specific in tent to commit that crime; and so assault of the attempted-battery sort requires an intent to commit a batte ry, i.e. an intent to cause physi cal injury to the vic tim.” (footnote omitt ed)). The parties’ disagreement involves the second form of assault. Scholars generally describe the second form of assault as requ iring the subjective intent to instill fear in another. For example, Professor LaFave defined assault to require “an actual intention to cause apprehension.” 2 Wayne R. LaFave, Substantive Criminal Law § 16.3(b) (3d ed. Thomson Reuters 2018); see also Wayne R. LaFave, Criminal Law § 16.3(b) (5th ed. Tho mson Reuters 2010). L ike Professor LaFave , John Hawley and Malcolm McGregor stat ed that an assault is committed when someone intentionally instills fear in anot her. John G. Hawley & Malcolm McGregor, The Criminal Law 155–56 (5th ed. Sprague P ub. Co. 1908). And Professor Eisenberg observed that “common law criminal assault required intent to cause fear of imminent bodily har m.” Avalana K. Eisen berg, Criminal Infliction of Emotional Distress , 113 Mich. L. Rev. 607, 637 (2015). Similarly, Profe ssors Perkins and Bo yce define d the cri me of assault as “(1) an attempt to co mmit a battery or (2) an intent ional placing of another in appreh ension of receiving an immediate battery.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 159 (3d ed. The Foundation Press, Inc. 1982). And Dean Miller wrote that despite some conf lict in the cases, the test for the crime of assault “should be the intent of the accused,6 not the fear of injury of the victim of the alleged assault.” J ustin Miller, Handbook of Criminal Law § 98, at 305 (West . Pub. Co. 1934). Like these scholarly commentaries, courts elsewhere have concl uded that common-law assau lt requires specific intent to instill fea r in another. 1 Together, these opin ions and scholarly commentary support the e xistence of a specific-intent requirement for assault.
B. Our Case Law Def ining “Assault” We draw guidance not only from the common law but also from ou r case law defining the crime of assault. For example, we recogni zed in United States v. Lynch that an “assault” occur s in two circumstances: (1) “when a person commits a vol untary, deliberat e act which co nstitutes an offensive touching” and (2) “when a person intentionally thr eatens to

1 See United States v. Delis , 558 F.3d 177, 180 (2d Cir. 2009) (“[C]ommon-law assault consisted of either attempted battery or the deliberate infliction upon another o f a reasonable fear of phys ical injury and is often described as a specific intent crime.”); United States v. Hampton , 628 F.3d 654, 660 (4 th Cir. 2010) (stating that common-law assault “‘consisted of either attempted battery or the ‘deliber ate infliction upon another of a reasonable fear of physical in jury’” (quoting Delis , 558 F.3d at 180–81)); United States v. Lamott , 831 F.3d 1153, 1156 (9th Cir. 2016) (“We have previous ly held that common law assault is a sp ecific intent crime.”); Carter v. Commonwealth , 606 S.E.2d 839, 841 (Va. 2005) (concluding that the common-law cr ime of assault occurs when th e defendant “engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates suc h reasonable fear or apprehension in the victim”).7 hurt someone else and has the ap parent ability to do so.” 881 F .3d 812, 817 (10th Cir. 2018) (inter nal quotation omitted). The second form of assault is at issue here. Mr. Gonzales’s co nduct would constitute this form of assault only if he had “intention ally” threatened to hurt on e of the officers. Id. Given this definition of “assault,” the district court cou ld apply the enhancem ent under § 3A1.2(c) (1) only if the government h ad established an inten tion to instill fear. The government contends that a showing of inten tion is unneces sary under United States v. Calderon , 655 F.2d 1037 (10t h Cir. 1981). We disagree with the government’s in terpretation of Calderon . That case addressed 18 U.S.C. § 351(e), whi ch governs assaults on members of Congress. Under § 351(e), the Calderon defendant argued that the government had needed to prove an attempt to commit a battery. We disagreed, noting that common-law assault includes not only att empted battery but also acts “putting a nother in reasonable apprehensi on of bodily harm.” 655 F.2d at 1038. We conclu ded that the district court h ad adequately defined the two types of assault by instructing the jury: Any willful attempt to (sic) thr eat to inflict injury upon the person of another, when coupled with an apparent present ability to do so, or any intentional display of force such as would give the victim reason to f ear or expect immediate bodily harm, constitutes an assault.8 Id. The government points to the reference in this instruction to “ an[] intentional display of force.” According to the government, thi s language jettisoned the need to show a n intent to instill fear. The government misreads Calderon . There we merel y rejected the defendant’s argument t hat § 351(e) required an attempt to commi t a battery. We didn’t need to decide whether the display of a weap on (without an intent to i nstill fear) could constit ute an assault under th e common law. Indeed, in Calderon , the defendant stepped forward, identified himself, threw two eggs at a member of Congress, and announ ced why he ha d thrown the eggs. 655 F.2d at 1038. His int ent to instill fear w as not an issue. Unlike the government, the di strict court didn’t rely on Calderon

. The court instead relied on United States v. Ford , 613 F.3d 1263 (10th Cir. 2010), stating that it had clarified that “ U.S.S.G. § 3A1.2(c)( 1) is not to be applied based on the s ubjective intent of th e defendant.” R. vo l. 1 at 76.
But Ford did not decide the need to prove subjective intent. The Ford court instead assumed, for th e sake of argument, that the government had needed to prove intent. Ford , 613 F.3d at 1269 (“Mr. For d’s conduct qualifies under even ‘the most demanding standard’ of assault: conduct wh ich places another in reasonable apprehension of recei ving a battery with intent to ‘cause apprehension’ or actua l ‘bodily harm .’” (quoting United States v.
Robinson , 537 F.3d 798, 802–03 ( 7th Cir. 2008))). Ford said nothing to9 support application of the enhancement wit hout proof of the def endant’s intent. We thus gather little guidance from either Calderon or Ford . But Lynch is instructive, treating a threat to hurt someone as an assault only if the threat is intentional. See pp. 6–7, above. Lynch thus supports treatment of assault as a specific-intent crime.
C. Other Circuits’ Interpr etations of § 3A1.2 The government also invokes thr ee opinions (in ot her circuits) interpreting § 3A1.2(c)(1) or its predecessor: (1) United States v.
Robinson , 537 F.3d 798, 802–03 (7t h Cir. 2008); (2) United States v. Olson , 646 F.3d 569, 572–74 (8th Cir. 2011); and (3) United States v. Lee , 199 F.3d 16 (1st Cir. 1999). These opinion s provide us with lit tle guidance.
Robinson applied § 3A1 .2(c)(1) without dec iding whether the defendant had intend ed to instill fear of bodily harm. 537 F.3d at 802–03. In dictum, the court doubted the applicabi lity of this “stringe nt intent requirement” under § 3A1.2(c). Id. at 803. But the court gave no explanation for this doubt.
In Olson , the Eighth Circuit didn’t have the occasion to address the applicability of an intent requ irement under § 3A1.2(c)(1). Olson , 646 F.3d at 574 n.5 (stating that the cou rt “need not, and do[es] not, d ecide whether a mental state falling short of i ntent to cause fear could sati sfy the10 common-law definition of ‘menaci ng’ assault for the purposes of § 3A1.2(c)”).
Lee is inconsistent with our precedent. There the First Circuit he ld that application of the predecessor to § 3A1.2(c) 2 turns on the “mere knowledge of consequences,” not o n the “purpose to cause fear.” Lee , 199 F.3d at 19–20. But the Lee court did not rest its holding on the commonlaw definition of assaul t; the court focused instead on the pol icy of this guideline to protect victim s who are public officials. Id. The court reasoned that the comm on-law definition of assault “does not cl early resolve the question [of] what de gree of scienter is required . . .: awareness of consequences or something more purposeful.” Id. We respectfully disagree with the First Circuit’s reasoning. “A ssault” either requires intent (to inst ill fear) or it doesn’t. The dif ficulty of answering this question does not allow us to dispense with the guideline requirement of an assault because the victim was a public offic ial. 3

2 The provision appeared at that time in § 3A1.2(b). U.S.S.G. § 3A1.2 (1999).

3 The government also argues that we need not follow the common -law definition of assault because the guidelines focus on sentencin g rather than criminal liability. But § 3A1.2(c )(1) uses a term widely recogn ized in criminal law: “assault. ” This use of crimin al-law terminology i s common in the guidelines. See, e.g. , U.S.S.G. §§ 2L1.2 cm t. 2, 4B1.2(a)(2).11 3. The district court’s err or was prejudicial. The government contend s that even if it ha d needed to show a subjective intent to instill fear , we should find this intent. But we are not the factfinder; the district cou rt was, and it made no finding on Mr. Gonzales’s intent. Though the district court didn’t make a finding on intent, the court noted that Mr. Gonzales hadn’t presented eviden ce about his int ent. But Mr. Gonzales didn’t need to present such evidence; the burden o f proof fell on the governmen t to trigger the enhancement. United States v. Campbell , 372 F.3d 1179, 1183 ( 10th Cir. 2004).
4. Because the district court erroneously dis regarded Mr. Gonzales’s subjective intent, we vacate his sentence and remand for further pr oceedings. The district court erre d in concluding that subjective intent i s immaterial under § 3A1. 2(c)(1). To the cont rary, the § 3A1.2(c) (1) enhancement would appl y only if Mr. Gonzales had the specific i ntent to put a law-enforcement officer in fear of se rious bodily injury. On that issue, the parties presented different views of the ev idence. The government argues that Mr. Gonzales in tended to instill fea r of bodily harm when he pulled th e gun from his holster . Mr. Gonzales resp onds that the evidence p ermitted a reasonable inf erence that he was tryin g to discard the gun.12 Both findings would be reasonable under the evidence. We can’t resolve this conflict in the evidence because we aren’t a factf inder. The district court is the entity entrusted with factfinding; and on remand, that court should address the factual question of Mr. G onzales’s int ent. See United States v. Manatau , 647 F.3d 1048, 1055 (10t h Cir. 2011). We thus vacate Mr. Gonzales’s sentence and remand for resentencing.