The petitioner fails to establish how a verbal recommendation from the United States–beyond what the District Court already possessed in the form of the plea agreement–would have changed the District Court’s mind. For these reasons, the petitioner fails to establish either that the United States breached its plea agreement or, even if the United States had breached the agreement, that he suffered any prejudice h. Issue Not Raised on Appeal Rivero alleges that the District Court committed plain error in the following two manners: (I) the District Court denied the Defendant a bond [CVDE: 10: 3], and (ii) the District Court received a plea from the Petitioner for assault, in violation of 18 U.S.C. § 111, even though the defendant did not intend or agree to plead guilty to assault [CVDE:10: 3]. Rivero did not, however raise either of these issues in his appeal to the Eleventh Circuit, and, as a result, the Court should summarily dismiss them now.

be alleged and proved beyond a reasonable doubt. See United States v. Royal, 731 F.3d 333, 341 (4th Cir. 2013) (explaining that “elements,” under Descamps’ evaluation of what constitutes a violent felony, means any factual circumstance of the offense that the jury must find unanimously and beyond a reasonable doubt”) (internal citation and quotation omitted); United States v. Gardner, No. 14-4533, 2016 WL 2893881, at *6 (4th Cir. May 18, 2016) (noting that “alternative elements create distinct crimes” and that “[a]lternative elements of a crime . . . are factual circumstances of the offense that the jury must find unanimously and beyond a reasonable doubt,” and that the court considers how juries are instructed in determining whether certain facts are elements or means) (citation and internal quotation omitted); see also United States v. Rafidi, No. 15-4095, 2016 WL 3670273, at *5 (6th Cir. July 11, 2016) (recognizing that injury and weapon-based enhanced penalty provision of 18 U.S.C. § 111(b) is an offense element that defines a distinct offense); cf. Castillo v. United States, 530 U.S. 120 (2000) (holding as a matter of statutory interpretation that use of a machine gun constituted an offense element); Jones v. United States, 526 U.S. 227 (1999) (holding as a matter of statutory interpretation that “serious bodily injury,” which increased the defendant’s penalty, constituted an offense element under the federal carjacking statute). In this sense, Defendant’s § 249(a)(1) charges are unlike the offense at issue in Mathis v. United States, which is cited by Defendant for the proposition that the attempts-related provisions of § 249 are means of committing a § 249 offense.

(citations omitted). In United States v. Moore, 483 F.2d 1361, 1364 (9th Cir.1973), the Ninth Circuit assumed that the right remained valid and was available as a defense to a prosecution under 18 U.S.C. § 111. Again, Plaintiff’s complaint alleges that he created no disturbance of any kind.

¶ 14. A few days later, the U.S. Attorney’s Office charged Tocho with high-speed flight from a checkpoint, see 18 U.S.C. § 748, and assaulting, impeding, or resisting a federal officer, see 18 U.S.C. § 111, and Judge Goains issued a warrant for his arrest. Id.