OPINION

CANBY, Circuit Judge:

Rogelio Vela Jr. ("Vela") appeals from a judgment of not guilty by reason of insanity following a jury trial on a charge of assault on a federal officer, in violation of 18 U.S.C. § 111. He contends that the district court erred in failing to dismiss the indictment, refusing to instruct the jury that willfulness is an element of § 111, and denying him the opportunity to present a diminished capacity defense. He contends that, as a result., he was denied an opportunity for an outright acquittal rather than a verdict of not guilty by reason of insanity, which results in civil commitment. See 18 U.S.C. § 4243. We conclude, over the government's opposition, that we have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. We affirm the district court's judgment.

BACKGROUND

On the evening of March 22, 2007, in the San Ysidro, California, Port of Entry security office, Vela stabbed Customs and Border Protection Branch Chief Patrick Wright in the chest with a knife. The stabbing occurred after Officer Wright and Vela, who is deaf, exchanged a series of notes concerning Vela's fear that both the Mafia and his family wanted him dead, and Vela's own declaration that he intended to kill himself. Officer Wright was severely injured, but survived.

A federal grand jury returned a two-count indictment, charging Vela in Count 1 with attempted murder in violation of 18 U.S.C. § 1114 and in Count 2 with assault on a federal officer in violation of 18 U.S.C. §§ 111(a)(1) and (b). Count 1 eventually was dismissed on the government's motion, so only Count 2 is at issue on appeal. Count 2 originally charged Vela with "willfully" assaulting Officer Wright while Wright was performing his official duties. Subsequently, the grand jury returned a superseding indictment that replaced "willfully" with "intentionally."

Vela filed several pretrial motions, three of which are the concern of this appeal. First, Vela filed a motion to dismiss the superseding indictment because Count 2 failed to charge a required element of willfulness. Second, Vela filed a motion to be allowed a defense of diminished capacity to the Count 2 charge. Finally, Vela moved to dismiss Count 2 on the ground that § 111(b), the assault statute, unconstitutionally required the court, rather than the jury, to find aggravating facts that increased the authorized sentence, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied all three motions.

Vela proceeded to trial asserting an in-sanity defense, supported by expert testimony. The government proffered its own expert witness who testified that Vela was not legally insane, but only "severely depressed" at the time of the incident. After a three-day trial, the jury found Vela not guilty by reason of insanity. The district court ultimately ordered Vela committed to the custody of the Attorney General for placement in a suitable mental facility, pursuant to 18 U.S.C. § 4243(e). Vela timely appealed the judgment.

JURISDICTION

Before proceeding to the merits of Vela's appeal, we first address the government's contention that we lack jurisdiction because there is no final judgment from which Vela can appeal. The government also asserts that Vela is not entitled to appeal the verdict that accepted Vela's affirmative defense of insanity.

"The right of appeal . . . is purely a creature of statute; in order to exercise that statutory right of appeal one must come within the terms of the applicable statute — in this case, 28 U.S.C. § 1291." Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Section 1291 grants us jurisdiction to review "all final decisions of the district courts." 28 U.S.C. § 1291.

The government argues that there has been no final decision in this case because Vela was found not guilty by reason of insanity, with the result that there has been no criminal conviction and sentence. The government relies on statements from decisions of this court and the Supreme Court to the effect that "[i]n a criminal case the [final judgment] rule prohibits appellate review until conviction and imposition of sentence." Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); see also United States v. Montalvo, 581 F.3d 1147, 1150 (9th Cir. 2009) ("In criminal cases, a final decision is rendered upon imposition of the defendant's sentence."). None of the cases making such statements, however, considered whether appellate jurisdiction lies in the unusual case where a criminal. defendant is aggrieved by a verdict of not guilty by reason of insanity, which, by its nature, is not followed by a sentence. We conclude in this matter of first impression that, when a defendant is found not guilty by reason of insanity, the lack of a sentence does not necessarily preclude appellate jurisdiction.

First, both this court and the Supreme Court repeatedly have emphasized that, as a general matter, finality coincides with the termination of the criminal proceedings. We have explained that "`[u]nder the modern doctrine, a `"final decision" generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" United States v. Ray, 375 F.3d 980, 985 (9th Cir. 2004) (quoting United States v. One 1986 Ford Pickup, 56 F.3d L181, 1184 (9th Cir. 1995) (per curiam)); see also Midland Asphalt Carp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989). And, in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), the Supreme Court recognized that "the term `final decision' normally refers to a final judgment, such as judgment of guilty, that terminates a criminal proceeding." Id. at 176, 123 S.Ct. 2174 (emphasis added).

When a criminal defendant is found guilty, it is unremarkable that there is no final judgment until the defendant is sentenced; it is only at sentencing that the criminal action terminates and "nothing [is left] for the court to do but execute the judgment." Midland Asphalt, 489 U.S. at 798, 109 S.Ct. 1494 (citation omitted); see also, e.g., Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) ("To create finality it was necessary that petitioner's conviction should be followed by sentence. . . ."). But when, as in Vela's case, a jury finds a criminal defendant not guilty lay reason of insanity, the docketing of the verdict amounts to a final judgment because the criminal proceeding has come to an end and no criminal sentence will follow. See United States v. Stewart, 452 F.3d 266, 272 (3d Cir. 2006) ("[T]he judgment of acquittal solely by reason of insanity has conclusively resolved the underlying criminal proceedings."); State v. Marzbanian, 2 Conn. Cir. Ct. 312, 198 A.2d 721, 724 (1963) ("[I]t is not correct to say that because no sentence had been pronounced there is no final judgment from which an appeal may be taken. A judgment was rendered in this case, as it must be in every case which terminates in a finding after a trial on the facts. . . ."); cf. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. at 546, 69 S.Ct. 1221 (explaining that the term "final decision" is to be given a "practical rather than a technical construction"). Thus, we conclude that appellate review of proceedings culminating in a verdict of not guilty by reason of insanity accords with our prior decisions and those of the Supreme Court.

Moreover, appellate review in cases ending with verdicts of not guilty by reason of insanity is consistent with the primary rationale underlying the final judgment rule that courts of appeal should avoid "piecemeal appellate review of trial court decisions which do not terminate the litigation." Flanagan, 465 U.S. at 264, 104 S.Ct. 1051 (citation and internal quotation marks omitted); see also Ray, 375 F.3d at 985 ("The foundation of [the final judgment rule] is not in merely technical conceptions of `finality.' It is one against piecemeal litigation." (citation omitted)). As the Supreme Court has explained, the general rule that requires parties "[to] raise all claims of error in a single appeal following final judgment on the merits," Flanagan, 465 U.S. at 263, 104 S.Ct. 1051 (quoting Firestone Tire Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)), not only "minimiz[es] appellate-court interference with the numerous decisions [trial judges] must make in the prejudgment stages of litigation," but also "reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals," id. at 263-64, 104 S.Ct. 1051. In criminal cases, the policy against piecemeal appellate review is at its strongest because of the interests of the defendant, the prosecution, and society in promptly bringing a criminal case to trial. Id. at 264, 104 S.Ct. 1051.

Permitting Vela to appeal from a verdict of not guilty by reason of insanity raises none of these concerns. His case is over; an appeal cannot interfere with or delay the progress of his criminal trial. It will not lead to multiple appeals. Thus, the rationales underlying the final judgment rule render appellate jurisdiction appropriate here.

We also reject the government's suggestion that it is improper to permit an appeal by a defendant who prevailed in his defense of insanity. The cases relied upon by the government do not support that proposition. In United States v. Wattleton, 296 F.3d 1184 (11th Cir. 2002), the defendant had appealed a conviction and sought and obtained a reversal with instructions to enter a verdict of not guilty by reason of insanity. He later challenged that verdict in an appeal of his resulting civil commitment, arguing that the defense of insanity had been imposed on him by the government. Id. at 1194. The court of appeals addressed that contention on the merits and held that there had been no such imposition. Id. at 1194-96. In Curry v. Overholser, 287 F.2d 137 (D.C. Cir. 1960), a convicted defendant similarly succeeded on appeal and remand in obtaining the verdict that he sought: not guilty by reason of insanity. Id. at 138. He challenged that verdict in subsequent civil commitment proceedings. Id. at 138-39. The court of appeals held that he could "not now be heard to complain of the consequences of his decision to seek the insanity verdict. Id. at 140.

We note first that neither of these cases raised a jurisdictional question, because they both arose in challenges to subsequent civil commitment, not in appeals from verdicts of not guilty by reason of insanity. The rulings appear to proceed on a theory akin to estoppel where the defendants asked for the verdicts that they later attacked. But in both Wattleton and Curry, the defendants had never sought any verdict other than not guilty by reason of insanity, and that is the verdict they attempted to challenge. Vela, on the other hand, is not directly attacking his verdict of not guilty by reason of insanity; he is arguing that errors were made in the district court that deprived him of a proper opportunity to be freed entirely from his indictment, or to succeed in a defense leading to an unconditional verdict of not guilty. He contends that his ultimate resort to an insanity defense is not inconsistent with his claims presented on appeal. The record supports his contention.

One month after Vela was indicted, he moved the district court to permit diminished capacity defenses to both attempted murder (Count 1) and assault (Count 2). The government filed an opposition and Vela filed a notice indicating that he "anticipate[d] relying on either the insanity defense, and/or `intends to introduce expert evidence relating to a mental disease or defect or . . . other mental condition.'" (emphasis added). The district court ruled that he could assert a diminished capacity defense to attempted murder, but not assault. Only after the government dismissed the attempted murder charge, and after the denial of his renewed motion to permit a diminished capacity defense to assault, did Vela acknowledge that he was "stuck" with insanity as a defense. Under the circumstances, we are unpersuacled that Vela is estopped because he "was given exactly what he had asked the District Court to give him." Curry, 287 F.2d at 140. Vela is challenging errors quite apart from the verdict of not guilty by reason of insanity. It is both appropriate and efficient that he be entitled to raise those issues on this appeal.

We conclude, therefore, that there are no barriers, jurisdictional or prudential, to the entertainment of Vela's appeal as an appeal from a final judgment under 28 U.S.C. § 1291. We proceed, therefore, to address Vela's contentions of error.

MERITS

I. Standards of Review

We review de novo a district court's denial of a motion to dismiss an indictment. United States v. Rivera-Sillas, 417 F.3d 1014, 1017 (9th Cir. 2005). We also review de novo whether a jury instruction fails to state the elements of a statutory crime, United States v. Gravenmeir, 121 F.3d 526, 528 (9th Cir. 1997), whether diminished capacity is a defense to a charged offense, United States v. Twine, 853 F.2d 676, 678 (9th Cir. 1988), and whether a statute is facially unconstitutional under Apprendi, United States v. Salazar-Lopez, 506 F.3d 748, 750 (9th Cir. 2007).

II. Vela's Motions to Dismiss the Indictment, Instruct the Jury on Willfulness, and Permit a Diminished Capacity Defense Were Properly Denied

Three of Vela's contentions on the merits are interrelated and amount to an attempt to convince this court that § 111 requires a heightened mens rea for conviction. According to Vela, § 111 requires proof of an element of willfulness — which Vela understands to mean a "bad purpose" — and he asserts that, consequently, § 111 must define a specific intent crime. Therefore, Vela argues, the indictment should have been dismissed for failure to allege willfulness. Or, at the very least, Vela insists that the district court erred by not permitting him to present a diminished capacity defense and by failing to instruct the jury that, to convict, it must find that he acted willfully. We conclude that none of these contentions have merit.

Vela's arguments are foreclosed by our decision in United States v. Jim, 865 F.2d 211, 215 (9th Cir. 1989), where we held that § 111 is a general intent crime. The defendant in Jim was charged with three counts of violating § 111 arising from a drunken shooting spree. Id. at 212. The trial court refused to instruct the jury on the defense of voluntary intoxication. Id. On appeal, we affirmed the ruling on the ground that § 111 was a general intent crime, id. at 215, and voluntary intoxication is not a defense to a general intent crime, id. at 212.

Jim controls this case. We have held that a defense of diminished capacity, like voluntary intoxication, is ordinarily available only when a crime requires proof of a specific intent. Twine, 853 F.2d at 679. Jim makes clear that § 111 defines a general intent, not a specific intent, crime. It follows from that conclusion that the district court here did not err in denying Vela's motion to dismiss the indictment for lack of an element of specific intent (as Vela defines "willfulness") or in refusing to permit or instruct the jury on a defense of diminished capacity.

Vela seizes upon the statement in Jim that the common-law crime of assault included an element of willfulness, and that, if congressional purpose is not considered, § 111 "appears to be a specific intent crime." 865 F.2d at 213. But Jim then conducted an analysis of congressional purpose and squarely held that this analysis led to the conclusion that "§ 111 is a general intent crime." Id. at 215. Vela simply misreads Jim in arguing that it imposed a requirement of willfulness or any other element of specific intent upon § 111.

Vela next contends that Jim must be limited to the holding that voluntary intoxication is not permitted as a defense to § 111, and that diminished capacity raises other considerations because it lacks the moral opprobrium of intoxication. See Montana, v. Egelhoff, 518 U.S. 37, 50, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (plurality opinion) (noting the "traditional view that an intoxicated criminal is not deserving of exoneration") But nothing in Jim's analysis of congressional purpose depended upon, or was limited to, the defense of voluntary intoxication. The conclusion that § 111 was a general intent crime necessarily precluded defenses aimed at a nonexistent element of specific intent. Indeed, at least three other circuits that have addressed the question have held that § 111 admits of no defense of diminished capacity. See United States v. Kimes, 246 F.3d 800, 809 (6th Cir. 2001); United States v. Ricketts, 146 F.3d 492, 498 (7th Cir. 1998); United States v. Ettinger, 344 F.3d 1149, 1158 (11th Cir. 2003). We have found no circuits to the contrary. Vela's construction of Jim is unsupportable.

Vela's last argument on this issue is that the authority of Jim has been undermined by later decisions of the Supreme Court or this court en banc. This contention faces a high hurdle. Only when "`the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority [should a three-judge panel] consider itself bound by the later and controlling authority, and . . . reject the prior circuit opinion as having been effectively overruled." Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc). None of the authorities relied upon by Vela meet this standard.

First, Vela argues that Jim's "speculating as to Congress's intent" is inconsistent with the Supreme Court's decision in United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (plurality opinion). In Santos, the Supreme Court, in a fractured opinion, held that because the word "proceeds," as used in the federal money-laundering statute, could mean either "receipts" or "profits," the ambiguity was resolvable only by application of the rule of lenity. Id. at 2025. The analysis in Santos, however, was necessarily specific to the words and purpose of the money-laundering statute, and we are not persuaded that this analysis can be applied directly to overcome Jim's analysis of the totally different § 111. Santos does not so undermine the reasoning of Jim that we may depart from Jim `s holding that § 111 is a general intent crime.

The other two decisions relied upon by Vela are equally far afield. Clark v. Arizona, 548 U.S. 735, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006), held in relevant part that Arizona did not violate due process of law by restricting mental capacity evidence to the defense of insanity and barring the use of such evidence to rebut the mens rea element of a crime. Id. at 764-71, 12:6 S.Ct. 2709. We fail to see how this ruling aids Vela or undermines Jim.

The last case Vela relies on is our en banc decision in United States v. Gracidas-Ulibarry, 251 F.3d 1188 (9th Cir. 2000) (en banc), in which we reaffirmed that attempts were specific intent crimes at common law. See id. at 1191-92. Because one definition of common-law assault includes "a willful attempt to inflict injury upon the person of another," Dupree, 544 F.2d at 1051 (emphasis added), Vela argues that Jim's, holding that § 111 is a general intent crime is irreconcilable with Gracidas-Ulibarry. We find no such irreconcilability. Gracidas-Ulibarry did not introduce any concepts that were not taken account of in Jim. Jim quoted Dupree `s common-law definition of assault and opined that, without a consideration of congressional purpose behind § 111, it would seem that § 111 was a specific intent crime. Jim, 865 F.2d at 213. Jim went on, however, to consider congressional purpose and hold that § 111 defined a general intent crime. Id. at 215. Nothing in Gracidas-Ulibarry, which dealt with attempted illegal entry into the country, cast any doubt, explicitly or implicitly, on Jim's construction of § 111. There is no inconsistency between the two decisions. We conclude, therefore, that Jim has not been undermined by subsequent decisions.

Accordingly, the district court did not err by denying Vela's motions to dismiss the indictment for failure to charge willfulness, to instruct the jury on willfulness, or to permit a diminished capacity defense.

III. 18 U.S.C. § 111 Does Not Violate Apprendi

Vela's final contention is that his conviction must be vacated because § 111 is facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348. At issue are the aggravating factors contained in § 111(b) — use of a deadly or dangerous weapon and infliction of bodily injury — which, if proven, increase the offense's maximum penalty to twenty years in prison.

Consistent with Apprendi, the indictment in this case charged the aggravating facts and the jury in this case was instructed that, to convict Vela under § 111(b), it must find that Vela "used a dangerous or deadly weapon and/or inflicted bodily injury" in committing the offense. Nonetheless, Vela argues that § 111 is facially unconstitutional because, even if the sentence-enhancing facts were found by the jury in his. case, Congress intended that these factors be treated as sentencing factors and decided by the trial judge, not by the jury. Vela relies upon this court's pre- Apprendi holding in United States v. Young, 936 F.2d 1050 (9th Cir. 1991) (per curiam), that Congress in § 111 intended the factor of use of a deadly and dangerous weapon to be "strictly a sentencing provision" that need not be alleged in the indictment. Id. at 1054. Because we conclude that Young's reasoning has been fatally undermined by subsequent decisions of the Supreme Court and our en banc court, we reject Vela's contention that § 111 violates Apprendi. See Miller v. Gammie, 335 F.3d 889, 892-93.

In concluding that Congress intended the deadly or dangerous weapon aggravates of § 111 to be a sentencing provision, rather than an essential element of the crime, the Young panel cited the facts that (1) the deadly or dangerous weapon provision "[was] not structurally separated from the rest of the section, indicating that the section contains only one substantive offense"; (2) the provision "[was] not drafted as a stand-alone offense; it incorporates the predicate acts by reference rather than affirmatively setting forth any specific elements"; and (3) Congress, in later amending § 111 and dividing it into subsections (a) and (b), "[w]ithout otherwise materially altering the provision, . . . subsequently labeled the provision `Enhanced Penalty.'" Id. at 1054. None of these rationales continues to hold water.

To begin, Young's reliance on the first two facts — the lack of structural separation between the primary offense and the deadly and dangerous weapon provision, as well as the deadly and dangerous weapon provision's incorporation by reference of the elements of the primary offense — is inconsistent with the Supreme Court's rationale in the more recent decision of Jones v. United States, 526 U.S. 227, 233, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Jones considered Congress's intent in drafting the federal carjacking statute, 18 U.S.C. § 2119, which, similarly to § 111 as it presently stands, "begins with a principal paragraph listing a series of obvious elements," and that, "at first glance," the numbered subsections that follow appear to be only sentencing provisions. Id. at 232, 119 S.Ct. 1215. The Court admonished, however, that the "`look' of [a] statute . . . is not a reliable guide to congressional intentions" where the provisions in question "not only provide for steeply higher penalties, but condition them on further facts . . . that seem quite as important as the elements in the principal paragraph." Id. at 233, 119 S.Ct. 1215.

Like the statute at issue in Jones, which increased the maximum penalty from fifteen years to either twenty-five years or life, see id. at 230, 119 S.Ct. 1215 (citing 18 U.S.C. § 2119 (Supp. V 1988)), § 111(b) increases the maximum penalty to twenty years, up from the one or eight years imposed by § 111(a), 18 U.S.C. § 111(b). Further, like the aggravating facts of serious bodily injury or death at issue in Jones, see Jones, 526 U.S. at 230, 119 S.Ct. 1215, § 111(b) requires proof of either use of a dangerous weapon or infliction of bodily injury, which, as several of our sister circuits have held, "are of the type that the states and the federal government traditionally have considered elements of an offense rather than sentencing factors." United States v. Chestaro, 197 F.3d 600, 608 (2d Cir. 1999); see also United States v. Hathaway, 318 F.3d 1001, 1007 (10th Cir. 2003); United States v. Campbell, 259 F.3d 293, 299 (4th Cir. 2001). Thus, the "look" of what is now § 111(b) is insufficient to support the conclusion that Congress intended its aggravating facts to be only sentencing provisions.

Nor does Congress's labeling of § 111(b) with the descriptor "Enhanced penalty" save Young's analysis. As our en banc court recognized in United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc), relying on such labels to infer congressional intent may be misleading, requiring a "conceptual pigeon-holing" that Congress intended sub silentio that sentence-enhancing factors such as those in § 111(b) be found by the judge rather than the jury. Id. at 565-66. Instead, we held that "[t]he days of semantical hair splitting between `elements of the offense' and `sentencing factors' are over," and that "[t]o the extent that our case law holds to the contrary, it is overruled." Id. at 566 (citation omitted).

Indeed, Buckland is particularly applicable to the facts of this case. In Buckland, we considered a facial challenge to a portion of the Controlled Substances Act, 21 U.S.C. § 841, on the ground that, as pre- Apprendi decisions of our court had held, Congress intended the judge, rather than the jury, to make certain sentence-enhancing determinations concerning drug quantity. Id. at 563-64. We rejected the assumption that "we are bound by our pre- Apprendi holdings" on the matter, id. at 567 (" Apprendi `s reading of the Due Process Clause has stripped these holdings of precedential value."), and instead heeded the Supreme Court's instruction "that `every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,'" id. at 564 (citing Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895)). We found dispositive the fact that, in contrast to the state statute at issue in Apprendi which expressly provided that the sentencing enhancement be imposed by the trial judge by a preponderance of the evidence, Congress did not specify in § 841 whether the judge or the jury would determine the drug quantity facts at issue. Id. at 565 (citing Apprendi 530 U.S. at 468, 120 S.Ct. 2348). Thus, we refused to read into the statute a congressional intent to "remove from the jury the assessment of the facts necessary to increase the prescribed range of penalties to which a criminal defendant is exposed." Id. at 566-67 (internal quotation marks, brackets, and citation omitted). And because the appellant failed to identify any persuasive legislative history to the contrary, we held that we were obliged to construe the statute so as not to violate Apprendi. Id. at 567.

As in § 841, Congress did not specify in § 111(b) whether the aggravating facts would be found by the judge or the jury or by what standard of proof. Vela, however, fails to provide persuasive legislative history suggesting that Congress "purposely remov[ed] from the jury" the responsibility to decide whether a defendant, in violating § 111, used a deadly or dangerous weapon or inflicted bodily injury. Id. at 566-67 (internal quotation marks and citation omitted). As in Buckland, we consider a construction of § 111 consistent with Apprendi to be "fairly possible," and thus "we are obliged to so construe it," Id. at 567. We conclude, therefore, that Young has been effectively overruled to the extent that it is inconsistent with this opinion.

Our conclusion resolves what otherwise might be viewed as a conflict between Young and our recent opinion in United States v. Chapman, 528 F.3d 1215 (9th Cir. 2008). In Chapman, we observed that the: Supreme Court, in Jones established "that where a statute sets out separate punishment clauses, each adding further elements to the crime, the punishment clauses constitute separate and distinct criminal offenses, rather than one offense with different punishments." Id. at 1218 (citing Jones, 526 U.S. at 252, 119 S.Ct. 1215). We joined a number of our sister circuits in holding that, in accordance with Jones, § 111 must be construed to create three distinct criminal offenses, with § 111(a) containing one misdemeanor and one felony and § 111(b) containing a second felony. Id. at 1218. If § 111(b) is itself a separate criminal offense, it follows that one of the offense elements is a finding of either use of a deadly and dangerous weapon or infliction of bodily injury, which is consistent with Apprendi.

For all of these reasons, we reject Vela's facial challenge to § 111 and hold that the district court properly refused to dismiss Count 2 of the superseding indictment.

CONCLUSION

Although we conclude that we have jurisdiction to entertain Vela's appeal from the judgment of not guilty by reason of insanity, none of his contentions on the merits succeeds. Accordingly, the judgment is

AFFIRMED.