PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee/Cross- 

 Appellant, 

v. 

DERRICK IVAN JIM, 

 Defendant - Appellant/Cross-

 Appellee. 

Nos. 12-2085 & 12-2120 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:10-CR-02653-JB-1)

_________________________________ 

John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public 

Defender, with him on the briefs), Denver, Colorado for Defendant Derrick Jim. 

Mark T. Baker, Assistant United States Attorney (Kenneth J. Gonzales, United States 

Attorney, with him on the briefs), Albuquerque, New Mexico for Plaintiff United States 

of America. 

 

Before BRISCOE, Chief Judge, EBEL, and KELLY, Circuit Judges. 

EBEL, Circuit Judge. 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 12, 2015

Elisabeth A. Shumaker 

Clerk of Court

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 A jury convicted Derrick Jim of aggravated sexual abuse occurring in the Navajo 

Nation. Jim initially pled guilty to this offense, but later withdrew his plea and proceeded 

to trial. On appeal, Jim claims that the trial court erred when it let the Government 

present to the jury evidence of the admissions he made in his plea agreement and during 

his plea colloquy. Ordinarily, Rule 410 of the Federal Rules of Evidence precludes the 

Government from using such evidence against a defendant. But Jim waived his Rule 410 

protections as part of the plea agreement underlying his (now withdrawn) guilty plea. 

We conclude that the district court did not err in enforcing Jim’s Rule 410 waiver by 

allowing the Government to present to the jury Jim’s prior admissions of guilt. We, 

therefore, AFFIRM Jim’s convictions. 

In its cross-appeal, the United States challenges Jim’s 360-month prison sentence, 

arguing that the district court erred in calculating Jim’s offense level under the sentencing 

guidelines. We agree that the district court erred when it held that, in determining 

whether a two-offense-level enhancement under U.S.S.G. § 2A3.1(b)(4)(B) for causing 

the victim serious bodily injury applied in Jim’s case, the court could not consider any 

injuries directly resulting from the sexual abuse for which Jim was convicted. Thus, we 

remand for resentencing so the district court can determine, in the first instance, whether 

that enhancement under § 2A3.1(b)(4)(B) is warranted in this case and, if so, the impact 

of that enhancement on Jim’s sentence. 

Therefore, exercising jurisdiction under 18 U.S.C. § 3742(a) and (b), and 28 

U.S.C. § 1291, we AFFIRM Jim’s convictions, but REMAND for resentencing. 

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BACKGROUND

 The evidence, viewed in the light most favorable to the jury’s verdict,1

 established 

the following: On August 12, 2010, K.T. had a get-together with a few friends at her 

home located in the Navajo Nation. One of K.T.’s friends invited Jim. During the 

evening, those at the get-together drank alcohol and socialized under K.T.’s carport and 

in her driveway. 

 After 1:00 a.m., K.T., feeling ill from drinking too much, went inside the house 

and laid down on a couch in her living room. Jim followed her inside; locked the door to 

the carport and turned off the interior lights; pulled K.T. off the couch, causing her to hit 

her head on the floor; dragged her by her ankles down the hallway and into her bedroom; 

and, while K.T. fought him, raped her vaginally and anally with his penis. Afterwards, 

Jim dragged K.T. into the laundry room, where she was able to fight him off. He then 

fled from the house through the exterior laundry room door. 

While all of this was occurring, K.T.’s friends, upon discovering that K.T.’s house 

was locked and dark, knocked on the door leading from the carport to the kitchen, rang 

the doorbell, and called K.T.’s cell phone, to no avail. After Jim fled, K.T. crawled to the 

carport door, where her friends were knocking, and opened the door. She was naked 

 

1 See United States v. Berry, 717 F.3d 823, 827 (10th Cir.), cert. denied, 134 S. Ct. 495 

(2013).

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from the waist down, bleeding, and crying hysterically. When she was eventually able to 

speak, K.T. told her friends that Jim had raped her. 

As a result of these events, the United States charged Jim with one count of 

aggravated sexual abuse—vaginal intercourse by force, in violation of 18 U.S.C. 

§§ 2241(a)(1), 2246(2)(A). Jim initially pled guilty to that charge, but the district court 

later granted Jim’s request to withdraw his guilty plea and proceed to trial. The 

Government then added a second charge: aggravated sexual abuse—anal penetration by 

force. A jury convicted Jim of both charges, and the district court imposed concurrent 

360-month sentences.2

 

On appeal, Jim challenges his convictions, arguing that the district court erred 

when, contrary to Rule 410, it allowed the Government to present to the jury evidence 

that he admitted committing the charged offenses when he initially pled guilty. We reject 

this argument because Jim validly waived the usual protection Rule 410 provides against 

the Government’s use of this evidence at trial. In a cross-appeal, the Government 

contends that the district court erred in calculating Jim’s offense level under the 

 

2

 These crimes are federal offenses because the United States charged that an “Indian” 

committed these crimes against another “Indian” in “Indian country,” as defined in 18 

U.S.C. § 1151(a). See 18 U.S.C. §§ 1152, 1153(a); see also United States v. Antelope, 

430 U.S. 641, 642-43 & 644 n.4 (1977). Federal law would not have applied if a nonIndian had committed these offenses in “Indian country” against a non-Indian. See 

Antelope, 430 U.S. at 643 n.2, 644 & n.4. Jim argues that this differing treatment of 

Indians and non-Indians amounts to an impermissible classification based on race. 

Because the Supreme Court has already rejected Jim’s argument, see id. at 645-47, we 

deny relief. Jim acknowledges the existing Supreme Court precedent and raises the issue 

only to preserve it should the Supreme Court revisit the question in the future. 

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sentencing guidelines. We agree, and remand for resentencing. 

DISCUSSION

I. Jim’s challenge to the enforcement of his Rule 410 waiver 

 Rule 410 provides that evidence of “a guilty plea that was later withdrawn” or 

statements that a defendant made when he entered a guilty plea, later withdrawn, are not 

admissible against that defendant. Fed. R. Evid. 410(a)(1), (3)3

; see United States v. 

Mitchell, 633 F.3d 997, 998, 1000, 1002-03 (10th Cir. 2011). But a defendant can waive 

his Rule 410 protections. See United States v. Mezzanatto, 513 U.S. 196, 197 (1995). 

 

3

 Rule 410(a) provides: 

In a civil or criminal case, evidence of the following is not admissible 

against the defendant who made the plea or participated in the plea 

discussions: 

(1) a guilty plea that was later withdrawn; 

(2) a nolo contendere plea; 

(3) a statement made during a proceeding on either of those 

pleas under Federal Rule of Criminal Procedure 11 or a 

comparable state procedure; or 

(4) a statement made during plea discussions with an attorney 

for the prosecuting authority if the discussions did not result 

in a guilty plea or they resulted in a later-withdrawn guilty 

plea. 

See also Fed. R. Crim. P. 11(f) (“The admissibility or inadmissibility of a plea, a plea 

discussion, and any related statement is governed by Federal Rule of Evidence 410.”). 

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In this case, Jim waived those protections as part of his initial plea agreement: 

Except under circumstances where the Court, acting on its own, fails to 

accept this plea agreement, the Defendant agrees that, upon the Defendant’s 

signing of this plea agreement, the facts that the Defendant has admitted 

under this plea agreement as set forth above, as well as any facts to which 

the Defendant admits in open court at the Defendant’s plea hearing, shall be 

admissible against the Defendant under Federal Rule of Evidence 

801(d)(2)(A) [providing that an opposing party’s statement is not hearsay] 

in any subsequent proceeding, including a criminal trial, and the Defendant 

expressly waives the Defendant’s rights under Federal Rule of Criminal 

Procedure 11(f) and Federal Rule of Evidence 410 with regard to the facts 

the Defendant admits in conjunction with this plea agreement. 

(R. v.1 at 30, ¶ 10(c).) In light of Jim’s Rule 410 waiver, the district court allowed the 

Government to introduce evidence during his trial of the admissions Jim made in his plea 

agreement and during his plea colloquy. United States v. Jim, 839 F. Supp. 2d 1157, 

1158 (D. N.M. 2012). 

On appeal, Jim does not contend that he unknowingly or involuntarily waived 

Rule 410’s protections. Instead, he claims that his Rule 410 waiver was unenforceable 

because it was part of an overall plea agreement that was itself not knowing and 

voluntary. More specifically, Jim contends that his guilty plea, which was part of his plea 

agreement, was not knowing and voluntary because he did not realize that, by pleading 

guilty, he was foregoing a trial. “If a guilty plea is not knowing and voluntary, it is void, 

and any additional waivers in the plea agreement generally are unenforceable.” Mitchell, 

633 F.3d at 1001 (citation omitted); see also United States v. Rollings, 751 F.3d 1183, 

1186 (10th Cir.), cert. denied, 135 S. Ct. 494 (2014). To determine whether Jim’s Rule 

410 waiver is enforceable in this case, therefore, we consider whether Jim knowingly and 

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voluntarily entered his plea agreement and guilty plea, which guilty plea the district court 

later allowed him to withdraw. Because Jim failed to show that his guilty plea and the 

underlying plea agreement were unknowing or involuntary, we conclude that the Rule 

410 waiver contained in the plea agreement was enforceable. Based on that waiver, the 

district court did not err in allowing the Government to present to the jury evidence of the 

admissions Jim made in the plea agreement and during the plea colloquy. 

A. Proceedings relevant to the enforcement of Jim’s Rule 410 waiver 

In order to understand Jim’s argument against enforcement of his Rule 410 waiver 

and why that argument fails, it is necessary to consider four discrete proceedings that 

occurred during this criminal prosecution. 

 1. Jim pled guilty 

 Pursuant to the plea agreement, Jim pled guilty to one count of aggravated sexual 

abuse, and the parties agreed that Jim would receive a sentence of between 151 and 188 

months in prison. If the district court accepted the plea agreement, the parties’ agreedupon sentencing range would bind the court. See Fed. R. Crim. P. 11(c)(1)(C). In light 

of that, the magistrate judge who took Jim’s guilty plea accepted his guilty plea, after 

determining Jim entered it knowingly and voluntarily, but deferred deciding whether to 

accept the plea agreement until sentencing. See Fed. R. Crim. P. 11(c)(3)(A); see also 

United States v. Byrum, 567 F.3d 1255, 1259 (10th Cir. 2009). 

 2. Jim retained new counsel 

After he pled guilty but before sentencing, Jim, acting on his own, wrote the 

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district court asking for a new court-appointed attorney. During an ex parte hearing to 

address that request, Jim told the district court that his current attorney had rushed him 

into the plea agreement, which Jim had not fully understood. In particular, Jim told the 

court that he had not realized that, by pleading guilty, he would not have a trial. 

According to Jim, when he pled guilty, he mistakenly believed that his plea agreement 

only limited the length of the sentence he would receive, should he be convicted, but that 

he would still have a jury trial to determine his guilt or innocence. (This was the only 

time that Jim made this assertion to the district court, although the district court thereafter 

did sua sponte return to this issue in several later rulings.) Before the court ruled on 

Jim’s request for another court-appointed attorney, Jim instead retained a new lawyer. 

3. The district court allowed Jim to withdraw his guilty plea

Jim’s new attorney filed a motion to withdraw Jim’s guilty plea. Because Jim 

made this request before sentencing, the district court had discretion to permit Jim to 

withdraw his plea if he asserted a “fair and just reason for requesting” to do so. Fed. R. 

Crim. P. 11(d)(2)(B); see also United States v. Sanchez-Leon, 764 F.3d 1248, 1259 (10th 

Cir. 2014) (noting such a motion is freely allowed). Although Jim gave the district court 

several reasons why he was asking to withdraw his guilty plea (e.g., the defense had new 

evidence with which to impeach the victim and, without further explanation, Jim’s guilty 

plea “was without full understanding and arguably it was not voluntary,” (R. v.1 at 50, 

¶ 11)), Jim did not specifically reassert his mistaken belief that, even after his guilty plea, 

he would still have a jury trial. 

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The district court, in deciding whether to permit Jim to withdraw his guilty plea, 

considered several factors, including whether Jim’s guilty plea was knowing and 

voluntary.4

 See Sanchez-Leon, 764 F.3d at 1258. In addressing the knowing-andvoluntary factor, the district court sua sponte noted that it remained troubled by Jim’s 

earlier pro se assertion, made when he asked for a new attorney, that Jim had not realized 

that by pleading guilty he was giving up a trial. Adding to the district court’s concern 

was the fact that, when the magistrate judge took Jim’s guilty plea, the magistrate judge 

had not specifically informed Jim, as required by Fed. R. Crim. P. 11(b)(1)(C) and (F), 

that, by pleading guilty, he was waiving his right to a trial. Despite the district court’s 

concerns, however, the court ultimately did not decide whether Jim’s guilty plea was 

knowing or voluntary. But the court’s “doubts” about the knowing-and-voluntary nature 

of Jim’s plea “weigh[ed] heavily in favor of” the court exercising its discretion to allow 

Jim to withdraw his guilty plea. (R. v.1 at 125.) 

Nevertheless, before allowing Jim to withdraw his guilty plea, the district court 

specifically warned him that, in light of his Rule 410 waiver, if Jim withdrew his guilty 

plea and went to trial, the Government would be able to present to the jury evidence of 

 

4

 The Tenth Circuit has “identified seven factors to guide a [district] court’s decision on 

whether to grant [a defendant’s request to withdraw his guilty plea]: (1) whether the 

defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing 

defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, 

(6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.” 

Sanchez-Leon, 764 F.3d at 1258 (internal quotation marks omitted). “We also have 

suggested an additional factor to consider: the likelihood of conviction.” Id. (internal 

quotation marks omitted). 

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Jim’s admissions made when he entered that plea. In response to this warning, defense 

counsel, in open court with Jim present, acknowledged that the Government would be 

able to use the Rule 410 evidence at trial, but assured the court that Jim was “aware of 

what he’s doing and what the evidence is against him.” (R. v.3 at 24.) Jim ultimately 

elected to withdraw his guilty plea and proceed to trial. 

4. The district court enforced Jim’s Rule 410 waiver by allowing the 

Government to present Rule 410 evidence to the jury 

 

After the district court permitted Jim to withdraw his guilty plea and the parties 

were preparing for trial, Jim filed a motion in limine seeking to prevent the Government 

from presenting the Rule 410 evidence to the jury. In making that motion, Jim did not 

assert that the plea agreement containing his Rule 410 waiver was unknowing and 

involuntary on the basis that he had not realized that, when he pled guilty, he would not 

have a trial. Rather, the bases for Jim’s in limine motion were that allowing the 

government to present to the jury evidence that he had admitted committing the charged 

offenses would result in an unfair trial and that Jim did not knowingly enter into the plea 

agreement, with its Rule 410 waiver, because, at the time he made that agreement, he did 

not have full discovery of all the evidence that the Government had against him. Those 

issues are not raised now in this appeal. 

The district court, in denying Jim’s motion in limine, again raised and addressed 

sua sponte the court’s lingering concerns about the knowing-and-voluntary nature of 

Jim’s guilty plea, based on a mistaken belief that he would still have a jury trial after 

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pleading guilty. Jim, 839 F. Supp. 2d at 1180-87. Ultimately, however, the court 

rejected those concerns as a reason to exclude the Rule 410 evidence because Jim had 

failed to “come forward with evidence, a sworn statement or testimony or other evidence, 

suggesting that the Court’s concerns and doubts were correct, or that the Court’s doubts 

should preclude a finding that the plea was knowing and voluntary.” Id. at 1182. 

Because Jim had failed to show that his guilty plea was not knowing and voluntary, the 

district court enforced Jim’s Rule 410 waiver, denied his motion in limine, and permitted 

the Government to use the Rule 410 evidence against Jim at trial. Id. at 1171-74, 1177-

87. It is this decision that Jim challenges on appeal. 

The district court’s two decisions, first to allow Jim to withdraw his guilty plea 

and then to enforce the Rule 410 waiver contained in the plea agreement, are consistent 

with decisions from other circuits enforcing Rule 410 waivers contained in plea 

agreements, and consistent with the particular language of those waivers. See United 

States v. Nelson, 732 F.3d 504, 512-13, 516-17 (5th Cir. 2013) (enforcing plea 

agreement’s Rule 410 waiver against a defendant who did not enter a guilty plea as 

required under the plea agreement, where waiver expressly took effect if the defendant 

failed to enter the guilty plea), cert. denied, 134 S. Ct. 2682 (2014); United States v. 

Washburn, 728 F.3d 775, 780-82 (8th Cir. 2013) (holding plea agreement, with its Rule 

410 waiver, was binding on defendant once he signed the agreement and Rule 410 waiver 

remained enforceable, pursuant to its express terms, even though the defendant never 

entered guilty plea required under that agreement and even though district court never 

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accepted the plea agreement); United States v. Quiroga, 554 F.3d 1150, 1153-57 (8th Cir. 

2009) (enforcing plea agreement’s Rule 410 waiver that by its terms applied if the 

defendant breached the plea agreement, when the defendant breached the agreement by 

withdrawing his guilty plea); cf. United States v. Newbert, 504 F.3d 180, 181-88 (1st Cir. 

2007) (looking at Rule 410 waiver language in plea agreement, but declining to enforce 

waiver because of extenuating circumstances in that case). 

Jim’s Rule 410 waiver expressly stated that it took effect at the time he signed the 

plea agreement. See Washburn, 728 F.3d at 779-82 (8th Cir.) (enforcing Rule 410 waiver 

in plea agreement which, according to the terms of the waiver, took effect upon the 

defendant’s signing the agreement, notwithstanding that the defendant later breached the 

plea agreement by not entering a guilty plea); see also United States v. Escobedo, 757 

F.3d 229, 233-34 (5th Cir. 2014) (looking at language of plea agreement containing Rule 

410 waiver to determine whether parties intended the waiver to be effective when the 

defendant signed the agreement or instead when (and if) the court accepted the plea 

agreement). And Jim does not contend that his Rule 410 waiver was not enforceable for 

the reason that the district court permitted him to withdraw his guilty plea. Indeed, it 

would make no sense to deny the efficacy of the Rule 410 waiver just because the guilty 

plea was withdrawn because that would render the waiver largely meaningless and 

deprive the Government of the benefit of its bargain. The clearly contemplated situation 

where the Rule 410 waiver would have any usefulness to the Government is in precisely 

this situation—where the defendant failed to carry out his side of the bargain to plead 

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guilty and thereby forced the Government to trial. 

However, if Jim’s entire guilty plea was not knowing and voluntary, then “any 

additional waivers in the plea agreement,” including his Rule 410 waiver, would not have 

been enforceable. See Mitchell, 633 F.3d at 1001; see also Rollings, 751 F.3d at 1186. 

Jim’s argument on appeal, therefore, is that his entire guilty plea was not knowing and 

voluntary and, thus, neither was his plea agreement which contained the Rule 410 waiver; 

therefore, the Rule 410 waiver is unenforceable. So the issue we now address is whether 

Jim entered his plea agreement knowingly and voluntarily. 

B. Standard of review 

 We review de novo the question of whether Jim’s guilty plea was knowing and 

voluntary. See Rollings, 751 F.3d at 1191; see also United States v. HernandezRodriguez, 352 F.3d 1325, 1328 (10th Cir. 2003) (holding appellate court’s review is de 

novo where district court sua sponte raised and explicitly decided issue on merits). 

C. Jim’s Rule 410 waiver was enforceable because he failed to demonstrate 

that his guilty plea was not knowing and voluntary 

1. The standard by which Jim must demonstrate that his guilty plea 

was not knowing or voluntary 

It is Jim’s burden to show that his guilty plea was not knowing or voluntary. See 

Rollings, 751 F.3d at 1187. Ordinarily, to meet this burden a defendant would have to 

prove that his plea was not knowing and voluntary. Id. (addressing knowing-andvoluntary nature of plea agreement); United States v. Salas-Garcia, 698 F.3d 1242, 1255 

(10th Cir. 2012) (same). But Jim contends that, in order to meet his burden in this case 

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and avoid his Rule 410 waiver, he need only point to “some affirmative indication” in the 

record that his plea was not knowing and voluntary. Jim deems this “some affirmative 

indication” to be a lighter burden than the usual burden a defendant shoulders when 

challenging the knowing-and-voluntary nature of his guilty plea. 

Jim gets this “some affirmative indication” language from United States v. 

Mezzanatto, 513 U.S 196 (1995). But the Court in Mezzanatto addressed a question 

different from the one presented here. Mezzanatto addressed whether there should be a 

per se rule precluding a defendant from ever waiving his Rule 410 protections. Id. at 

197. Rejecting such a per se rule, the Court held that, like most constitutional and 

statutory rights, a defendant can waive Rule 410’s protections. Id. at 200-03. In reaching 

that conclusion, the Court rejected the defendant’s policy argument that allowing a 

defendant to waive Rule 410’s protections “invite[d] prosecutorial overreaching and 

abuse.” Id. at 209. 

The mere potential for abuse of prosecutorial bargaining power is an 

insufficient basis for foreclosing [plea] negotiation altogether. Rather, 

tradition and experience justify our belief that the great majority of 

prosecutors will be faithful to their duty. Thus, although some waiver 

agreements may not be the product of an informed and voluntary decision, 

this possibility does not justify invalidating all such agreements. Instead, 

the appropriate response to respondent’s predictions of abuse is to permit 

case-by-case inquiries into whether waiver agreements are the product of 

fraud or coercion. We hold that absent some affirmative indication that the 

agreement was entered into unknowingly or involuntarily, an agreement to 

waive the exclusionary provisions of the plea-statement Rules is valid and 

enforceable. 

Id. at 210 (emphasis added) (internal quotation marks, citations omitted). 

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 When the Court in Mezzanatto used the language on which Jim relies, it was 

discussing Rule 410 waivers generally, rejecting a per se rule that a defendant can never 

waive his Rule 410 protections. Mezzanatto was not addressing, nor was it attempting to 

articulate, a unique (and lesser) burden that a particular defendant had to meet in order to 

challenge a Rule 410 waiver in a given case. We, thus, do not read Mezzanatto’s “some 

affirmative indication” language to establish a new and unique standard of proof for 

determining whether the defendant’s Rule 410 waiver is enforceable in a particular case. 

That is the question we must answer in our case, but that question was not presented in 

Mezzanatto. Id. at 210-11. 

Had the Court in Mezzanatto intended to establish a new standard to measure the 

knowing and voluntary nature of a waiver of rights, the Court would have done so clearly 

and directly, instead of using the phrase “some affirmative indication” in a single 

sentence found toward the end of the opinion, in a section rejecting one of several policy 

reasons offered to support a (rejected) per se rule prohibiting a defendant from ever 

waiving his Rule 410 protections. Moreover, if the Court intended to announce a new 

standard in Mezzanatto, the Court surely would have elaborated on what it meant by 

“some affirmative indication,” and the Court would have explained how that new 

standard compared with the already-existing legal standard for determining whether a 

waiver of rights was knowing and voluntary. But the Court did not see the need to 

elaborate on the meaning of “some affirmative indication” in Mezzanatto because it was 

not creating a new standard. 

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 Nor would it make sense that Mezzanatto would craft a special rule just for Rule 

410 waivers. There is no reason why it should be easier, as Jim defines “some 

affirmative indication,” for a defendant to avoid his Rule 410 waiver (or here a guilty 

plea and entire plea bargain associated with a Rule 410 waiver) than it is for a defendant 

generally to avoid a guilty plea or a waiver of other constitutional or statutory rights. To 

the contrary, the Court’s point in Mezzanatto was that Rule 410 protections are like most 

constitutional and statutory rights because they too can be waived. 513 U.S. at 200-06. 

The underlying premise of Mezzanatto is that Rule 410 protections do not require special 

evidentiary rules to address waiver. See id. at 200-04. We have found no circuit case 

expressly interpreting Mezzanatto’s “some affirmative indication” language as a new and 

different standard by which to measure the knowing and voluntary nature of Rule 410 

waivers, or plea agreements and guilty pleas associated with those waivers. 

 Thus, we conclude that Mezzanatto, by using the phrase “some affirmative 

indication that the [Rule 410 waiver] agreement was entered into unknowingly or 

involuntarily,” 513 U.S. at 210, was not setting forth a new evidentiary standard for 

determining whether a particular defendant in a given case knowingly and voluntarily 

waived his Rule 410 protections. In answering that issue here, then, we make the usual 

inquiry into whether Jim has proved or established that his guilty plea was not knowing 

and voluntary. 

This is what we did previously in Mitchell, another case addressing the validity of 

a Rule 410 waiver contained in a plea agreement. At the outset of its discussion, the 

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Mitchell court noted generally that “the protections of . . . Rule [410] may be waived,” 

and then it quoted generally from Mezzanatto: “‘[A]bsent some affirmative indication 

that the agreement was entered into unknowingly or involuntarily, an agreement to waive 

the exclusionary provisions of [Rule 410] is valid and enforceable.’” Mitchell, 633 F.3d 

at 1000 (quoting Mezzanatto, 513 U.S. at 210.) However, in order to determine whether 

the defendant’s Rule 410 waiver was enforceable in that case, Mitchell used our ordinary 

evidentiary standards to consider whether the defendant’s guilty plea, which was part of 

the same plea agreement containing his Rule 410 waiver, was knowing and voluntary. 

633 F.3d at 1001. The Mitchell court made no further reference to Mezzanatto’s “some 

affirmative indication” language. We take the same approach in this case. 

2. Jim failed to establish that his guilty plea was not knowing and 

voluntary 

On appeal, Jim claims that his guilty plea was not knowing and voluntary because 

he did not realize that, by pleading guilty, he would not have a trial. To support his 

claim, Jim points only to the doubts that the district court sua sponte raised about the 

knowing and voluntary nature of Jim’s guilty plea. Those doubts were based on 1) Jim’s 

pro se assertion to the district court, when Jim was seeking a new attorney, that Jim 

mistakenly thought that he would still have a jury trial, even after pleading guilty; and 

2) the magistrate judge’s failure to insure, on the record at the plea colloquy, that Jim 

understood that by pleading guilty, he was waiving his right to a jury trial. The district 

court’s “doubts,” however, in that different and preliminary context, are insufficient for 

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Jim to establish that his guilty plea was not knowing or voluntary. In fact, since that 

ruling, Jim offered neither his own testimony nor any other evidence that he believed he 

was retaining a right to proceed to trial notwithstanding clear language in the plea 

agreement to the contrary, nor did he renew that claim on his own in the district court. 

Although the magistrate judge who took Jim’s guilty plea did not expressly inform 

Jim that he was waiving his right to a jury trial by pleading guilty, the written plea 

agreement and the circumstances surrounding Jim’s entry of that plea show that Jim 

understood that, by pleading guilty, he would not have a trial. See United States v. 

Tanner, 721 F.3d 1231, 1233-35 (10th Cir. 2013) (per curiam). 

The plea agreement itself informed Jim that he had the right to plead not guilty 

and to have a jury trial and, at that trial, to confront and cross-examine witnesses, to 

testify and present witnesses in his defense, compelling their attendance if need be, and 

not to be required to incriminate himself. The plea agreement further stated that Jim 

“agrees to waive these rights and to plead guilty . . . .” (R. v.1 at 27, ¶ 3.) And Jim 

declared that, 

 [b]y my signature on this plea agreement, I am acknowledging that I 

am pleading guilty because I am, in fact, guilty of the offense to which I am 

pleading guilty. I recognize and accept responsibility for my criminal 

conduct. Moreover, in pleading guilty, I acknowledge that if I chose to go 

to trial instead of entering this plea, the United States could prove facts 

sufficient to establish my guilt of the offense to which I am pleading guilty 

beyond a reasonable doubt. 

(Id. at 28, ¶ 8 (emphasis added).) Jim also stated in the plea agreement that he had 

“thoroughly reviewed all aspects of this case with [his] attorney and is fully satisfied with 

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that attorney’s legal representation.” (Id. at 26, ¶ 1.) Finally, immediately above Jim’s 

signature, the plea agreement stated “I have read this agreement and carefully reviewed 

every part of it with my attorney. I understand the agreement and voluntarily sign it.” 

(Id. at 34.) The plea agreement, thus, adequately informed Jim that, by pleading guilty, 

he was giving up a trial. And by signing the agreement, he acknowledged understanding 

that trial waiver. 

During the change-of-plea hearing, Jim stated in open court that he had read and 

signed the plea agreement, that he understood the agreement, and that he had no 

questions about it. Jim also acknowledged that he was pleading guilty of his own free 

will because he was in fact guilty. His responses during the plea colloquy, thus, generally 

reinforced that he understood the terms of the plea agreement. And that agreement 

clearly informed Jim that, by pleading guilty, he was not going to have a trial which, had 

it occurred, would have had sufficient facts against him to support a conviction. 

Furthermore, Jim’s personal history indicates that he was capable of understanding 

the terms of his plea agreement. At the time he signed that agreement, Jim was twentyeight years old, a high school graduate, with some college credits. And he had twice 

before pled guilty to drunk driving charges, so he had previous experience with guilty 

pleas. 

In light of the language in the plea agreement informing Jim that, by pleading 

guilty, he was giving up a trial, and the circumstances surrounding his entry of that plea 

that show that Jim was capable of understanding, and did understand, the terms of that 

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agreement, we find no error in the district court’s ruling that Jim knowingly and 

voluntarily entered his guilty plea. See Tanner, 721 F.3d at 1233-34.5 6

 

II. The Government’s cross-appeal challenging Jim’s sentences 

 

5

 We disagree with Jim’s contention that the district court’s decision to allow him to 

withdraw his guilty plea was inconsistent with the court’s later determination that Jim 

failed to show that his guilty plea was not knowing and voluntary. The district court had 

discretion to permit Jim to withdraw his plea upon Jim’s assertion of “a fair and just 

reason.” Fed. R. Crim. P. 11(d)(2)(B); see also United States v. Muhammad, 747 F.3d 

1234, 1241 (10th Cir.), cert. denied, 134 S. Ct. 2741 (2014). Leave to withdraw should 

be freely given. See Sanchez-Leon, 764 F.3d 1248, 1259. Challenging the knowing-andvoluntary nature of Jim’s guilty plea, on the other hand, presents a legal question 

requiring a binary determination—the plea was either knowing and voluntary or it was 

not—to be made in light of all the circumstances surrounding the plea. See Muhammad, 

747 F.3d at 1240; Tanner, 721 F.3d at 1233-34. That determination did not rest on the 

court’s exercise of discretion. See Rollings, 751 F.3d at 1191 (stating that the question of 

whether a guilty plea is knowing and voluntary is a legal conclusion). In light of these 

differing legal standards, the district court’s decision to exercise its discretion to permit 

Jim to withdraw his guilty plea was not inconsistent with the court’s later conclusion that 

Jim had failed to show that his plea was unknowing or involuntary. Even if the district 

court’s decisions were inconsistent, however, it would suggest only one of the two is 

incorrect. Here, only the latter ruling, that Jim failed to show that his guilty plea was not 

knowing and voluntary, is before us for review. See Quiroga, 554 F.3d at 1156-57 (8th 

Cir.). And we uphold that decision. 

6 Jim raises two additional arguments. The first is that Rule 410 applies to exclude 

admissions he made, after his guilty plea, to the probation officer who was preparing the 

presentence report. We need not address this argument because Jim acknowledges that 

the Government did not present evidence of these post-plea admissions to the jury and 

thus that issue is not presented in this appeal. Jim’s second argument is that, even if his 

Rule 410 waiver permitted the Government to present Rule 410 evidence at trial, the 

Government still could not use that evidence in its case-in-chief. Jim’s Rule 410 waiver 

does not so limit the Government’s use of the Rule 410 evidence, however, and this court 

has previously recognized that, based on a valid Rule 410 waiver, the Government can 

use Rule 410 evidence in its case-in-chief. See Mitchell, 633 F.3d at 998. 

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 In its cross-appeal, the Government challenges the concurrent 360-month 

sentences that the district court imposed for Jim’s aggravated sexual abuse convictions. 

The Government specifically contends that the district court erred in its interpretation of 

U.S.S.G. § 2A3.1(b)(4)(B), which enhances a sexual abuse defendant’s offense level by 

two if his victim suffered serious bodily injury. The district court determined that, in 

deciding whether the serious-bodily-injury enhancement applies in a given case, the 

sentencing court cannot, as a matter of law, consider injuries resulting directly from the 

sexual abuse underlying the defendant’s convictions. See United States v. Jim, 877 

F. Supp. 2d 1018, 1037-41 (D. N.M. 2012). Reviewing that determination de novo, see 

United States v. Hoyle, 751 F.3d 1167, 1172 (10th Cir. 2014), cert. denied, 135 S. Ct. 944 

(2015), we disagree. 

To calculate Jim’s offense level for his aggravated sexual abuse convictions, the 

district court had to apply U.S.S.G. § 2A3.1. Section 2A3.1(b)(4)(B) adds two offense 

levels “if the victim sustained serious bodily injury.” “Serious bodily injury” is defined 

in another section of the guidelines, in the application notes to § 1B1.1, which apply 

generally to all guideline provisions. 

Section 1B1.1’s application notes provide two different definitions of “serious 

bodily injury.” First, “‘[s]erious bodily injury’ means injury involving extreme physical 

pain or the protracted impairment of a function of a bodily member, organ, or mental 

faculty; or requiring medical intervention such as surgery, hospitalization, or physical 

rehabilitation.” U.S.S.G. § 1B1.1 app. n.1(L). Second, “‘serious bodily injury’ is 

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deemed to have occurred if the offense involved conduct constituting criminal sexual 

abuse under 18 U.S.C. § 2241 or [§] 2242 or any similar offense under state law.” 

U.S.S.G. § 1B1.1 app. n.1(L). 

That second definition of serious bodily injury cannot apply when the sentencing 

court is calculating the offense level for an 18 U.S.C. § 2241 offense like Jim’s because 

the base offense level for that offense already takes into account the fact that the 

defendant’s “offense involved conduct constituting criminal sexual abuse under 18 

U.S.C. § 2241.” U.S.S.G. § 1B1.1 app. n.1(L). It is for that reason that the application 

notes for U.S.S.G. § 2A3.1, the guideline specifically addressing sexual abuse 

convictions, provide that, “for purposes of this [sexual abuse] guideline, ‘serious bodily 

injury’ means conduct other than criminal sexual abuse, which is already taken into 

account in the base offense level under” § 2A3.1(a). U.S.S.G. § 2A3.1, app. n. 1 

(emphasis added). The two-level serious-bodily-injury enhancement can still apply to a 

sexual abuse offender, but it must be based on the fact that the victim’s injuries meet the 

first definition of “serious bodily injury”: “injury involving extreme physical pain or the 

protracted impairment of a function of a bodily member, organ, or mental faculty; or 

requiring medical intervention such as surgery, hospitalization, or physical 

rehabilitation.” U.S.S.G. § 1B1.1 app. n.1(L). 

The district court concluded that, in deciding whether the victim’s injuries meet 

this definition of “serious bodily injury,” the court could not, as a matter of law, consider 

any injuries that resulted directly from the underlying sexual abuse itself. Jim, 877 

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F. Supp. 2d at 1037-38. The district court based that conclusion on the language of 

§ 2A3.1’s application note 1: “[F]or purposes of this guideline, ‘serious bodily injury’ 

means conduct other than criminal sexual abuse, which already is taken into account in 

the base offense level under” § 2A3.1(a). (Emphasis added.) 

Admittedly that application note’s language—in particular, the phrase “injury 

means conduct”—is perplexing. But read in context, we conclude that language means 

that the sentencing court, in calculating a sexual abuse defendant’s offense level, cannot 

apply the serious-bodily-injury enhancement based on the fact that the offender 

committed a sexual abuse offense. It is that “conduct . . . which already is taken into 

account in the base offense level” for sexual abuse offenses, U.S.S.G. § 2A3.1, app. n.1. 

The language of the application note does not preclude the sentencing court, in deciding 

whether a sexual offender’s victim suffered serious bodily injury, from considering 

injuries resulting directly from the sexual abuse. 

Moreover, attempting to distinguish between injuries suffered as a direct result of 

the sexual abuse and those suffered during the incident but before or after the sexual 

abuse is an unworkable requirement. In many cases, it will be difficult to separate those 

injuries that resulted directly from the sexual abuse from injuries suffered while the 

offender was forcing the victim’s submission, for example, or from injuries compelling 

the victim’s silence. 

For these reasons, we conclude that a sentencing court can consider injuries the 

victim suffered resulting directly from the sexual abuse as well as those suffered during 

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relevant conduct surrounding that offense, see U.S.S.G. § 1B1.3(a)(1), when determining 

whether the victim suffered serious bodily injury, defined as “injury involving extreme 

physical pain or the protracted impairment of a function of a bodily member, organ, or 

mental faculty; or requiring medical intervention such as surgery, hospitalization, or 

physical rehabilitation,” U.S.S.G. § 1B1.1 app. n.1(L). Of course, regardless of when 

such injuries were suffered they still must satisfy the fairly egregious injury standard of 

U.S.S.G. § 1.1B1, app. n.(1)(L) to justify an enhancement under § 2A3.1(b)(4)(B). 

Our interpretation of § 2A3.1(b)(4)(B)’s serious-bodily-injury enhancement is 

similar to the interpretation adopted by the Eighth Circuit. See United States v. Long 

Turkey, 342 F.3d 856, 858 (8th Cir. 2003) (holding that the sentencing court, in 

determining whether the serious-bodily-injury enhancement should apply in a given case, 

can consider “injuries resulting from an episode of criminal sexual abuse”; noting that 

“only that the act of sexual abuse is insufficient by itself to support” the enhancement). 

See generally United States v. Volpe, 224 F.3d 72, 78 (2d Cir. 2000) (noting that 

§ 2A3.1(b)(4)’s “degree-of-injury adjustment punishes the assailant for the injuries to the 

victim that result from the assault”). 

The district court here declined to consider the victim’s injuries that resulted 

directly from the sexual abuse in an effort to avoid double-counting the defendant’s 

conduct. Jim, 877 F. Supp. 2d at 1039-40. Generally, “impermissible ‘double counting’ 

occurs when the same conduct on the part of the defendant is used to support separate 

increases under separate enhancement provisions which necessarily overlap, are 

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indistinct, and serve identical purposes.” United States v. Joe, 696 F.3d 1066, 1070 (10th 

Cir. 2012) (internal quotation marks omitted). The district court worried in this case that 

basing the serious-bodily-injury enhancement on injuries resulting directly from the 

sexual abuse would impermissibly double count the victim’s injuries, which “are already 

taken into account in the base offense level for criminal sexual abuse,” § 2A3.1 app. n.1. 

Jim, 877 F. Supp. 2d at 1039. But the base offense level takes into account the offender’s 

conduct in committing a sexual abuse offense, not the injuries the victim suffered. The 

district court’s reasoning erroneously treats the victim’s injuries as identical to the 

defendant’s conduct. While in any given case there may be a correlation between the 

egregiousness of the defendant’s conduct in committing the sexual abuse and the injuries 

the victim suffered as a direct result of the sexual abuse, that will not always be the case. 

And, in any event, the guidelines can enhance a defendant’s offense level both for the 

egregiousness of his conduct in committing a sex offense and for the injuries inflicted 

during that offense because those enhancements address different and distinct matters. 

Furthermore, the high standard for injuries required to satisfy U.S.S.G. § 1B1.1, app. 

n.1(L) provides adequate insurance against double-counting because the injuries 

described there fall outside the standard or heartland range of injuries that could be 

expected in a baseline offense of criminal sexual abuse under § 2A3.1(a). So long as the 

district court does not impose the serious-bodily-injury enhancement just on the fact that 

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criminal sexual abuse occurred, there will not be the type of impermissible doublecounting about which the district court was concerned.7

 Having determined that the district court erred in refusing to consider whether 

§ 2A3.2(b)(4)(B)’s two-offense-level enhancement for serious bodily injury could apply 

in this case, we remand for resentencing. On remand, the district court can consider, in 

the first instance, whether the victim’s injuries amounted to serious bodily injury, defined 

as “injury involving extreme physical pain or the protracted impairment of a function of a 

bodily member, organ, or mental faculty; or requiring medical intervention such as 

surgery, hospitalization, or physical rehabilitation.”8

 

 

7 The district court also raised a second, very different, double-counting concern: The 

district court worried that applying § 2A3.1(b)(4)(B)’s two-level serious-bodily-injury 

enhancement could double count the defendant’s use of force in cases like this one, 

where the court also applied § 2A3.1(b)(1)’s four-offense-level enhancement because the 

offense involved sexual abuse by force. Jim, 877 F. Supp. 2d at 1039-40. That is not a 

concern here, however, because the Government, at least on appeal, seeks only to support 

the two-level serious-bodily-injury enhancement with injuries that the victim suffered as 

a direct result of the sexual abuse. The Government does not seek to support the seriousbodily-injury enhancement further with injuries the victim suffered as a result of Jim 

forcing her to submit to that sexual abuse by dragging her off the couch and down the 

hallway into the bedroom and then holding her down. 

8

 Because we are remanding for resentencing, we do not consider here Jim’s argument 

challenging the substantive reasonableness of his 360-month sentence. See United States 

v. Kieffer, 681 F.3d 1143, 1165 (10th Cir. 2012). But, in order to provide guidance for 

resentencing, we address and reject Jim’s argument, made for the first time on appeal, 

that the district court was somehow bound by the Government’s concession in the plea 

agreement underlying Jim’s withdrawn guilty plea that an advisory range of 155 to 188 

months in prison was appropriate in Jim’s case. The Government’s concession, made in 

a Rule 11(c)(1)(C) plea agreement, never bound the district court because Jim withdrew 

his guilty plea before the court had an opportunity to accept the plea agreement 

underlying the plea. And, by the time the district court sentenced Jim, after his jury trial, 

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CONCLUSION 

 For the foregoing reasons, we AFFIRM Jim’s convictions. But we REMAND, 

directing the district court to VACATE Jim’s two concurrent 360-month sentences and to 

resentence him after considering whether to apply § 2A3.1(b)(4)(B)’s two-offense-level 

enhancement for causing serious bodily injury.

 

circumstances relating to Jim’s sentence had changed. At the time that Jim and the 

Government entered into the plea agreement, he was charged with only one count of 

aggravated sexual abuse; little discovery had occurred; DNA tests had not yet linked Jim 

physically to the victim; and Jim was entitled to a three-offense-level reduction for 

accepting responsibility by pleading guilty, see U.S.S.G. § 3C1.1. By the time the district 

court sentenced Jim, after trial, he had been charged with and convicted of two counts of 

aggravated sexual abuse; and he was no longer entitled to the three-offense-level 

reduction for accepting responsibility because he put the Government to its proof by 

going to trial. Further, the district court enhanced Jim’s offense level after finding that he 

perjured himself at trial, an enhancement that no one envisioned at the time of the earlier 

plea agreement. We, therefore, reject Jim’s assertion that the sentencing court is 

somehow bound by the advisory guideline range to which the parties originally agreed in 

the plea agreement. 

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