FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,            Nos.   21-30128,
                                            21-30129
         Plaintiff-Appellee,
                                     D.C. Nos.
 v.                                  4:19-cr-00029-BMM-1
                                     4:19-cr-00029-BMM
LUKE JOHN SCOTT, Sr.,                4:19-cr-00030-BMM-1
                                     4:19-cr-00030-BMM
         Defendant-Appellant.

OPINION

      Appeal from the United States District Court
              for the District of Montana
       Brian M. Morris, District Judge, Presiding

        Argued and Submitted August 23, 2023
                  Portland, Oregon

                 Filed October 6, 2023

 Before: Mark J. Bennett, Lawrence VanDyke, and Holly
              A. Thomas, Circuit Judges.

               Opinion by Judge Bennett
2                          USA V. SCOTT


                          SUMMARY *


                          Criminal Law

    In consolidated appeals arising from two criminal cases,
the panel (1) affirmed Luke Scott’s conviction for felony
child abuse under the Major Crimes Act, 

,
and 

; and (2) affirmed the
district court’s application of a serious bodily injury
enhancement under U.S.S.G. § 2A3.1(b)(4)(B) to Scott’s
sentence for aggravated sexual abuse by force or threat in
violation of 

(a).
    The panel held that, as in United States v. Other
Medicine, 

 (9th Cir. 2010), the government
properly charged Scott with felony child abuse under the
Major Crimes Act and the Montana statute. The Major
Crimes Act provides federal jurisdiction for the prosecution
of Native Americans for discrete crimes, including “felony
child abuse.” It also provides that, when an enumerated
offense is not defined and punished by federal law, it shall
be defined and punished in accordance with the laws of the
state in which such offense was committed. The panel
rejected Scott’s argument that Congress’s 2013 amendments
to the Major Crime Act—including its addition of “a felony
assault under section 113”—displaced the crime of felony
child abuse under the Major Crimes Act such that the
government may no longer use state law to define the
crime. The panel wrote that if Congress intended 

(a)(7) (assault resulting in substantial bodily injury to

*
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                        USA V. SCOTT                        3


an individual under age 16) to replace felony child abuse,
Congress would have deleted felony child abuse from the
Major Crimes Act. Because the 2013 amendments had no
effect on the separate offense of felony child abuse under the
Major Crimes Act, Other Medicine controls.
    The panel rejected Scott’s argument that the district
court’s imposition of the serious bodily injury enhancement
under § 2A3.1(b)(4)(B) for his conviction for aggravated
sexual abuse resulted in improper double counting. Scott
argued that, because U.S.S.G. § 1B1.1 provides that “serious
bodily injury” is deemed to have occurred for aggravated
sexual abuse offenses, the base offense level for such
offenses under the Sexual Abuse Guidelines must already
account for serious bodily injury that resulted from the
sexual abuse. The panel adopted the Tenth Circuit’s
analysis, which reasoned that (1) § 1B1.1 provides different
definitions of “serious bodily injury”—a Harm Definition
and a Conduct Definition; (2) the Conduct Definition cannot
be used when applying the Sexual Abuse Guideline;
(3) nothing precludes a sentencing court from considering
whether the victim’s injuries “resulting directly from the
sexual abuse as well as those suffered during relevant
conduct surrounding that offense” qualify as serious bodily
injury under the Harm Definition; and (4) the serious-bodily-
injury enhancement can apply to a sexual abuse offender
convicted under convicted under § 2241, but it must be based
on the fact that the victim’s injuries meet § 1B1.1’s Harm
Definition. Because Scott made no argument that the district
court failed to apply the Harm Definition or that the victim’s
injuries resulting from the sexual abuse or from Scott’s other
conduct surrounding the offense failed to meet the Harm
Definition, the panel concluded that Scott failed to show that
4                       USA V. SCOTT


the district court erred in applying the serious-bodily-injury
enhancement.
   The panel addressed Scott’s other challenges in a
concurrently filed memorandum disposition.




                        COUNSEL

Stephen R. Hormel (argued), Hormel Law Office, Spokane
Valley, Washington, for Defendant-Appellant.
Tim Tatarka (argued), Assistant United States Attorney,
United States Attorney’s Office, Billings, Montana; Kalah
A. Paisley, Assistant United States Attorney; Jesse A.
Laslovich, United States Attorney; United States Attorney’s
Office, Great Falls, Montana; for Plaintiff-Appellee.
                          USA V. SCOTT                           5

OPINION

BENNETT, Circuit Judge:

    This is a consolidated appeal of two criminal cases, and
we have jurisdiction under 

 and 

. In this opinion, we address two issues raised by
Defendant-Appellant Luke Scott. 1 In Appeal No. 21-30128,
we hold that the government had jurisdiction to prosecute
Scott for felony child abuse under the Major Crimes Act, 

, and 

. We
therefore affirm Scott’s conviction for felony child abuse. In
Appeal No. 21-30129, because Scott fails to show that the
district court’s imposition of the serious bodily injury
enhancement under § 2A3.1(b)(4)(B) of the United States
Sentencing Guidelines 2 resulted in improper double
counting, we affirm the district court’s imposition of the
enhancement.
                     I. BACKGROUND
    We discuss only the background relevant to the issues in
this opinion. Scott is a Native American who lived on the
Fort Peck Indian Reservation in Montana. The crimes Scott
was convicted of occurred on that Reservation. Scott
proceeded pro se at both trials but had counsel during
sentencing.




1
 We address all of Scott’s other challenges in a concurrently filed
memorandum disposition.
2
 U.S. Sent’g Guidelines Manual § 2A3.1(b)(4)(B) (U.S. Sent’g Comm’n
2018) [hereinafter U.S.S.G.].
6                            USA V. SCOTT


A. Appeal No. 21-30128: Child Assault Case
     Scott was charged in a two-count indictment. Count 1
charged Scott with assaulting “John Doe,” with that assault
resulting in serious bodily injury in violation of 

(a)(6). Count 2 charged Scott, who was over eighteen,
with felony child abuse under the Major Crimes Act and

, for purposely or knowingly
causing bodily injury to Doe, who was under fourteen. 3 The
jury found Scott guilty on both counts. Scott argues for the
first time on appeal that the Major Crimes Act does not
provide federal jurisdiction to prosecute felony child abuse
under Montana law.
B. Appeal No. 21-30129: Sexual Abuse Case
    In the second case, Scott was charged with offenses
related to forcing a forty-seven-year-old female victim to
engage in a sexual act. Count 1 charged Scott with
aggravated sexual abuse by force or threat in violation of 

(a). Count 2 charged him with assault with
intent to commit murder in violation of 

(a)(1).
    The victim testified that on the day of the assault, she had
been drinking since the early afternoon, and had gotten into
a verbal argument with another woman. Later that evening,
the victim ran into Scott, and she followed him down to the
river because he said his mother was there. But when they

3
   

(1) provides: “A person commits the
offense of assault on a minor if the person commits an offense under 45-
5-201, and at the time of the offense, the victim is under 14 years of age
and the offender is 18 years of age or older.” As relevant here, section
45-5-201 in turn provides: “A person commits the offense of assault if
the person . . . purposely or knowingly causes bodily injury to another .
. . .” 

(1)(a).
                        USA V. SCOTT                        7


arrived no one was there. They sat down and started talking.
Scott told the victim that the woman with whom she had
gotten into an argument had “put a hit on” her. Scott then
put his arm around the victim’s neck and used his free hand
to cover her nose and mouth. The victim thought she “was
going to die.” Scott’s arm squeezed her neck, and she had a
hard time breathing. Scott then pulled off her clothes and
forced his penis into her vagina. Sometime during the
assault, the victim blacked out, and she heard Scott say that
he would be killed because he failed to “finish [her] off.”
After the assault, Scott dragged the victim up the hill by her
arm. She then walked to a bar and called 911.
    The prosecution presented corroborating evidence,
including testimony from officers involved in the
investigation and medical professionals who examined the
victim after the rape and assault. The nurse who treated the
victim testified that the victim had intravaginal bleeding but
no visible exterior lacerations on her vaginal area. A
medical expert testified about the effects of strangulation,
including the risk of death. The prosecution also introduced
photos of the victim’s injuries, which included scratches on
her neck and face, and scratches and bruises on other parts
of her body. Scott testified that he never had sex with the
victim and did not commit the assault.
    The jury found Scott guilty on Count 1, aggravated
sexual abuse. It did not reach a verdict on Count 2’s charge
of assault with intent to commit murder, instead finding
Scott guilty of the lesser included misdemeanor offense of
assault by striking, beating, or wounding in violation of 

(a)(4).
   During sentencing, Scott argued that the court should not
apply the sentencing enhancement for serious bodily injury
8                        USA V. SCOTT


under U.S.S.G. § 2A3.1(b)(4)(B) because serious bodily
injury was already accounted for in the base offense level for
aggravated sexual abuse. The district court rejected Scott’s
argument and applied the enhancement. The court sentenced
Scott to 125 months.
    On appeal, Scott renews his argument that imposition of
the serious bodily injury enhancement resulted in improper
double counting.
             II. STANDARD OF REVIEW
    We review de novo jurisdictional issues, even when they
are raised for the first time on appeal. See United States v.
Anderson, 

 (9th Cir. 2006) (“Jurisdictional
issues are reviewed de novo . . . .”); United States v. Kahlon,

 (9th Cir. 1994) (noting that jurisdictional
claims are an exception to the rule that issues generally
cannot be raised for the first time on appeal).
    In reviewing a district court’s imposition of an
enhancement under the Sentencing Guidelines, we review de
novo a district court’s identification and interpretation of the
correct legal standards. United States v. Gasca-Ruiz, 

 (9th Cir. 2017) (en banc). We apply clear
error review to the district court’s factual findings. 

 We
review for abuse of discretion “a district court’s application
of the Sentencing Guidelines to the facts of a given case,”—
“that is, . . . whether the set of historical facts as found
satisfies the governing legal standard.” 

                    III. DISCUSSION
A. Major Crimes Act
    “The Major Crimes Act, 

, provides
federal jurisdiction for the prosecution of Native Americans
                         USA V. SCOTT                          9


for . . . discrete crimes,” including “felony child abuse.”
United States v. Other Medicine, 

 (9th Cir.
2010). The Major Crimes Act provides that, when an
enumerated offense “is not defined and punished by Federal
law[,] . . . [it] shall be defined and punished in accordance
with the laws of the State in which such offense was
committed.” 

 at 680 (quoting 

(b)). In
Other Medicine, we held that because “[t]he text of the
Major Crimes Act does not point to a federal definition of
felony child abuse,” 

, it was proper for the
government to prosecute the offense under 

 (the same Montana statute here), 

, 681–
82. Thus, we concluded that “there is federal jurisdiction
under the Major Crimes Act to prosecute cases of physical
assault on a child . . . as ‘felony child abuse’” using state law
to define that crime. 

.
    As in Other Medicine, the government properly charged
Scott with felony child abuse under the Major Crimes Act
and 

. Scott argues, however,
that Other Medicine does not control because it was decided
before the 2013 amendments to the Major Crimes Act. In
2013, the Major Crimes Act was amended as follows
(deleted text is crossed out and added text is bolded):

        (a) Any Indian who commits against the
        person or property of another Indian or other
        person any of the following offenses, namely,
        murder, manslaughter, kidnapping, maiming,
        a felony under chapter 109A, incest, assault
        with intent to commit murder, assault with a
        dangerous weapon, assault resulting in
        serious bodily injury (as defined in section
        1365 of this title) a felony assault under
10                           USA V. SCOTT


         section 113, an assault against an individual
         who has not attained the age of 16 years,
         felony child abuse or neglect, arson, burglary,
         robbery, and a felony under section 661 of
         this title within the Indian country, shall be
         subject to the same law and penalties as all
         other persons committing any of the above
         offenses, within the exclusive jurisdiction of
         the United States.

See Violence Against Women Reauthorization Act of 2013,

(b), 

, 125 (2013).
    Scott argues that by adding “a felony assault under
section 113,” Congress added all felony assaults under
§ 113, including “[a]ssault resulting in substantial bodily
injury to . . . an individual who has not attained the age of 16
years” under § 113(a)(7). As a result, according to Scott, the
government must charge felony child abuse under
§ 113(a)(7) and may no longer use state law to define the
crime.
    We reject Scott’s argument. In essence, Scott argues that
the addition of § 113(a)(7) displaced the crime of felony
child abuse under the Major Crimes Act. 4 But as the
government points out, that makes no sense, because the
2013 amendments retained “felony child abuse” as a
separate offense. If Congress intended § 113(a)(7) to replace
felony child abuse, it would have deleted felony child abuse


4
 To the extent that Scott’s argument could be construed as proposing a
“federal law first” rule—that the government must charge a crime
defined by federal law even if the defendant’s conduct also fits a separate
Major Crimes Act crime defined by state law—we rejected such
argument in Other Medicine. See 

.
                         USA V. SCOTT                       11


from the Major Crimes Act. Congress did not do so. Thus,
“felony assault under section 113” and “felony child abuse”
remain discrete crimes chargeable under the Major Crimes
Act. Because the 2013 amendments had no effect on the
separate offense of felony child abuse under the Major
Crimes Act, Other Medicine controls.
B. Serious Bodily Injury Enhancement
    To calculate Scott’s offense level for aggravated sexual
abuse in violation of 

(a), the district court
properly looked to U.S.S.G. § 2A3.1 (“Sexual Abuse
Guideline”). Under that guideline, the base offense level for
aggravated sexual abuse is 30. U.S.S.G. § 2A3.1(a)(2). But
the offense level can be increased for certain enumerated
“[s]pecific [o]ffense [c]haracteristics,” including a two-level
increase “if the victim sustained serious bodily injury.” Id.
§ 2A3.1(b)(4)(B).
    Here, the application of the serious bodily injury
enhancement is not straightforward because the Sentencing
Guidelines provide different definitions of “serious bodily
injury.” Section 1B1.1, which applies generally to all
guideline provisions, provides two definitions:

       [1] “Serious 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. [2] In addition, “serious
       bodily injury” is deemed to have occurred if
       the offense involved conduct constituting
       criminal sexual abuse under 18 U.S.C.
12                       USA V. SCOTT


        § 2241 or § 2242 or any similar offense under
        state law.

Id. § 1B1.1 cmt. n.1(M). In this opinion, we refer to the first
definition as the “Harm Definition” and the second as the
“Conduct Definition.”
     The Sexual Abuse Guideline offers another definition:

        For purposes of this guideline: . . . “serious
        bodily injury” [has] the meaning given [that]
        term[] in Application Note 1 of the
        Commentary to § 1B1.1 (Application
        Instructions). However, for 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 subsection (a).

Id. § 2A3.1 cmt. n.1.
    Scott argues that, because § 1B1.1 provides that “serious
bodily injury” is deemed to have occurred for aggravated
sexual abuse offenses, the base offense level for such
offenses under the Sexual Abuse Guideline must already
account for any serious bodily injury that resulted from the
sexual abuse. He contends that the serious bodily injury
enhancement can be applied only when “conduct separate
and apart from the conduct surrounding” the sexual abuse
resulted in serious bodily injury to the victim. Because, in
his view, he engaged in no separate conduct apart from the
sexual abuse that resulted in serious bodily injury to the
victim, he argues that imposition of the serious bodily injury
enhancement resulted in improper double counting.
                        USA V. SCOTT                      13


    To address Scott’s improper double-counting argument,
we must first decide, in applying the Sexual Abuse
Guideline, how we should interpret “serious bodily injury.”
Although we have not addressed this issue, other circuits
have. See United States v. Long Turkey, 

(8th Cir. 2003) (holding that an “act of sexual abuse is
insufficient by itself to support a § 2A3.1(b)(4)(B)
enhancement” but that a court can consider “any injuries
resulting from an episode of criminal sexual abuse”); United
States v. Jim, 

, 814–15 (10th Cir. 2015)
(holding that a court may apply the serious bodily injury
enhancement based on the victim’s injuries resulting directly
from the sexual abuse); cf. United States v. Bell, 

 (5th Cir. 2004) (noting that the “serious bodily
injury” definitions under § 1B1.1 and § 2A3.1 are
inconsistent but declining to “work[] out” the inconsistency
because there was evidence of serious bodily injury apart
from the rape—the victim’s face was swollen as though he
had been beaten).
    We find the Tenth Circuit’s analysis in Jim persuasive.
The court began by reconciling the different definitions of
“serious bodily injury.” It reasoned that § 1B1.1 provides
two definitions: the Harm Definition and the Conduct
Definition. Jim, 

. It then determined that the
Conduct Definition cannot be used when applying the
Sexual Abuse Guideline because, as the Sexual Abuse
Guideline application note explains, that guideline already
accounts for the defendant’s sexual abuse conduct in the
base offense level. 

 While the court noted that the
“application note’s language—in particular, the phrase
‘injury means conduct’—is perplexing,” it concluded that,
when read in context, the “language means that the
sentencing court, in calculating a sexual abuse defendant’s
14                      USA V. SCOTT


offense level, cannot apply the serious-bodily-injury
enhancement based on the fact that the offender committed
a sexual abuse offense.” 

 That is, the court cannot rely
on the Conduct Definition to support the enhancement.
     But the court determined that nothing precludes a
sentencing court from considering whether the victim’s
injuries “resulting directly from the sexual abuse as well as
those suffered during relevant conduct surrounding that
offense” qualify as serious bodily injury under the Harm
Definition. 

. Thus, the court held that the “two-
level serious-bodily-injury enhancement can still apply to a
sexual abuse offender [convicted under § 2241], but it must
be based on the fact that the victim’s injuries meet the first
definition of ‘serious bodily injury’” under § 1B1.1—the
Harm Definition. Id. at 814. The court noted that its
decision was consistent with out-of-circuit cases. Id. at 815.
It then explained why its holding did not result in improper
double counting:

       [T]he 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
                         USA V. SCOTT                        15


       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 [the Harm
       Definition] 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 criminal sexual abuse occurred, there
       will not be the type of impermissible double-
       counting about which the district court was
       concerned.

Id. at 815–16.
    We agree with this analysis and adopt it. It provides a
reasonable interpretation of the Sentencing Guidelines that
reconciles the differing definitions of “serious bodily
injury,” is consistent with the decisions of other circuits, and
does not result in impermissible double counting with regard
to the base offense level. It also avoids the “unworkable
requirement” of “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.” Id. at 815.
    Under this test, Scott fails to show that the district court
erred in applying the serious bodily injury enhancement. He
makes no argument that the court failed to apply the Harm
Definition or that the victim’s injuries resulting from the
16                      USA V. SCOTT


sexual abuse or from Scott’s other conduct surrounding the
offense failed to meet the Harm Definition. Instead, he
argues only that application of the enhancement per se
results in improper double counting when it is based on the
victim’s injuries caused directly by the sexual abuse.
Because we reject that argument, we affirm the district
court’s imposition of the enhancement.
                  IV. CONCLUSION
    In Appeal No. 21-30128, the government had
jurisdiction to prosecute the felony child abuse offense under
the Major Crimes Act, 

, and 

. Thus, we AFFIRM Scott’s conviction for
felony child abuse. In Appeal No. 21-30129, we AFFIRM
the district court’s imposition of the serious bodily injury
enhancement, as Scott fails to show that it resulted in
improper double counting.
     AFFIRMED.