OPINION
Michael McEnry (“McEnry”) was convicted, on a plea of guilty, of serving as an airman without an airman’s certificate, in violation of 49 U.S.C. § 46306(b)(7). He appeals from his sentence on the ground that the district court procedurally erred by sentencing him pursuant to U.S.S.G. § 2A5.2, rather than U.S.S.G. § 2B1.1. We have jurisdiction under 28 U.S.C. *895 § 1291 and 18 U.S.C. § 3742, and we vacate the sentence and remand for resentencing.
I.
On January 5, 2009, McEnry landed a Cessna 210F aircraft at the Eastern Sierra Regional Airport in Bishop, California. The circumstances of his landing were unusual: he did not communicate with the airport by radio during his approach and landing, and he touched down significantly farther along the runway than would be the case on a normal landing. When the plane did land, it overran the runway. McEnry’s behavior on getting out of the plane was also unusual. He tied the plane down at its two wings, but neglected to tie down the tail, as one would normally do. He did not walk purposefully toward the terminal, but wandered about before approaching it. On arriving at the terminal, he asked where he was and claimed that he had flоwn through military airspace, during which time military aircraft flew alongside him and fired flares. Someone at the airport called the police, reporting that McEnry might have been under the influence while flying. 1
At the time McEnry landed, another aircraft had been scheduled to take off, but the pilot delayed his launch because he saw McEnry’s plane coming in before he began his take-off. On investigating McEnry, the Federal Aviation Administration (“FAA”) determined that he had no airman’s certificate, ie., a pilot’s license. He had been issuеd a student pilot’s certificate in 1986, which expired 24 months after its issuance. 2 The FAA also determined that the aircraft had not had a required annual inspection since October 2004 and had a number of mechanical problems, leading it to conclude that the plane should not be flown. Before the plane was ultimately flown out of Eastern Sierra Regional Airport, the FAA required “some bare minimum” maintenance that gave the FAA agent “some comfort in saying ... you’re okay to take this onetime flight to a place where all the rest of the repairs could be done.” An FAA agent testified that “there was a lot that needed to be done” to make McEnry’s plane airworthy.
McEnry was charged with violating 49 U.S.C. §§ 46306(b)(7), which prohibits knowingly and willfully serving or attempting to serve as an airman without an airman’s certificate authorizing such service, 3 and 46306(c)(2), which provides for a higher statutory maximum if the violation is related to transporting a controlled substance by aircraft or aiding or facilitating certain controlled substance violations. He pled guilty, without a plea agreement, to violating § 46306(b)(7) after the government agreed to move to dismiss the § 46306(c)(2) charge; however, the government reserved its right to present its evidence with regard to controlled substances at sentencing. 4
*896 No sentencing guideline expressly applies to McEnry’s crime of conviction. 49 U.S.C. § 46306(b); U.S.S.G. App’x A. Accordingly, the guidelines specify that the district court must “apply the most analogous offense guideline” or, “[i]f there is not a sufficiently analogous guideline,” sentence the defendant pursuant to 18 U.S.C. § 3553. U.S.S.G. § 2X5.1. The Probatiоn Officer recommended that the court apply § 2A5.2(a)(2)(A), the guideline for interference with a flight crew member or interference with the dispatch, navigation, operation, or maintenance of a mass transportation vehicle, where the offense involved recklessly endangering the safety of an airport or aircraft. Under this guideline, McEnry’s Base Offense Level was 18. The government argued that this was the correct guideline, because the offense involved recklessly endangering the safety of an airсraft. McEnry contended that “[i]t is questionable whether any guideline is sufficiently analogous,” and argued that four other guidelines, including § 2Bl.l(b)(13), were more analogous to his offense. Section 2B1.1 provides for a Base Offense Level of 6. Section 2Bl.l(b)(13) establishes an enhancement for reckless risk of death or serious bodily injury; this enhancement would raise McEnry’s Offense Level to 14.
Following an evidentiary hearing, the court concluded that although § 2A5.2(a)(2) was “not that suitable and not that analogous really, [it was] the only guideline that is particulаrly close in terms of conduct.” The court gave McEnry a three-point downward adjustment for acceptance of responsibility and found him to be in Criminal History Category I. Determining that “given ... the overall totality of the circumstances ... a sentence in the middle of the guidelines is a fair sentence and appropriate,” the court sentenced McEnry to a 21-month term of imprisonment. This appeal followed.
II.
We review de novo the district court’s interpretation of the sentencing guidelines, and review the district court’s findings of fact for clear error.
United States v. Laurienti,
III.
The sole question in dispute is which section of the Sentencing Guidelines applies to McEnry’s offense, “knowingly and willfully serving] ... as an airman without an airman’s certificate authorizing [him] to serve in that capacity” when the aircraft is not used to provide air transportation. 49 U.S.C. § 46306(b)(7). The district court applied § 2A5.2, which applies, inter alia, to 49 U.S.C. §§ 46308 (interference with air navigation), 46503 (interference with airport security screening personnel), and 46504 (interference with flight crew members and attendants). The governmеnt contends that this was the correct *897 provision. McEnry contends that the appropriate provision is § 2B1.1, a general fraud and deceit guideline, which applies, inter alia, to “knowingly and willfully serv[ing] ... as an airman operating an aircraft in air transportation without an airman’s certificate authorizing the individual to serve in that capacity.” 49 U.S.C. § 46317(a)(1).
It is undisputed that no guideline directly applies to the offense of conviction in this case. Thus, it is also undisputed that the sentencing court must, under U.S.S.G. § 2X5.1 “apply the most analogous offense guideline” if one exists or, “[i]f there is not a sufficiently analogous guideline,” sentence the defendant pursuant to 18 U.S.C. § 355S. 6 The core of the parties’ dispute is how a district court should determine which guideline is “the most analogous offense guideline” under § 2X5.1. Under our standard of review, this interpretive question is properly reviewed de novo.
Although we have not previously had the occasion to consider § 2X5.1 in depth, we have addressed the broader question of how a district court must proceed in selecting an apprоpriate guideline. When deciding which guideline to apply, a district court must determine the guideline section in Chapter Two (Offense Conduct) “applicable to the offense of conviction
(ie.,
the offense conduct charged in the count of the indictment or information of which the defendant was convicted).” U.S.S.G. § lB1.2(a). To do this, the court is to refer to the Statutory Index, Appendix A of the Guidelines, to find the offense of conviction, or, if the offense is not listed in the Statutory Index, apply § 2X5.1 to find the most analogous guideline.
Id.
Applying the language quoted above, we have previously emphasized that it is not the defendant’s underlying relevant conduct, but the crime of conviction, that governs the selection of the appropriate guideline section. Thus, in
United States v. Lawton,
The court developed this line of reasoning in
United States v. Takahashi,
Takahashi
involved facts similar to
Crawford,
but with one key distinction. In
Crawford,
the defendant had been indicted on four counts, which were later dismissed, charging distribution of cocaine base within 1,000 feet of a school.
Id.
at 1025. Accordingly, there was no count of conviction for which § 2D 1.2 was the appropriate guideline. In
Takahashi,
by contrast, the defendant was convicted of violating 21 U.S.C. § 846, as well as 21 U.S.C. § 841(a).
See
As in
Crawford,
we concluded that use of § 2D 1.2 was improper.
Id.
We noted that the guidelines provide that “when ‘more than оne guideline section is referenced for the particular statute, [courts should] use the guideline most appropriate for
the nature of the offense conduct charged in the count of which the defendant was convicted.’ ” Id.
(quoting U.S.S.G. App’x A introduction) (alterations and emphasis in the original).
7
We also noted that a district court “cannot consider relevant but uncharged conduct at this stage of the Guidelines process.”
Id.
Some facts of a given case, however, may be necessary to select the relevant guideline. For example, “ ‘a court must necessarily consider the object of the conspiracy’ ” when determining the nature of the offense conduct for conspiracy.
Id.
(quoting
Crawford,
Shortly after we decided
Crawford
and
Takahashi,
the Guidelines were amended
*899
in light of the issues addressed in those cases.
See
U.S.S.G. App’x C para. 591. The amendment, which was “intended to emphasize that the sentencing court must apply the offense guideline referenced in the Statutory Index,” unless the case fell into a single specified exception, confirmed our interpretation of the interrelationship of § lB1.2(a) and the Statutory Index.
Id.
It removеd an application note to § 1B1.2 that “provided that in many instances it would be appropriate for the court to consider the actual conduct of the offender, even if such conduct did not constitute an element of the offense.”
Id.
Amendment 591 also revised the introduction to the Statutory Appendix and § lBl.l(a), removing a sentence suggesting that in atypical cases the defendant’s offense conduct should be considered in selecting a guideline section from the former, and a sentence indicаting that the Statutory Index merely “assist[s]” in the determination of the proper guideline from the latter.
8
See id.; compare U.S.S.G. §
lBl.l(a) & App’x A introduction (1998)
with
U.S.S.G. § lBl.l(a)
&
App’x A introduction (2000);
see also United States v. Johnson,
The amended Guidelines, together with Crawford and Takahashi, establish the principles which govern the selection of the applicable guideline for a given offense. As relevant here, those principles are that the selection of a guideline is primarily a statutory question, and to the extent the court is required to look to the facts to select a guideline, the court is limited to the conduct charged in the indictment.
These principles necessarily govern the selection of a guideline under § 2X5.1. Section 1B1.2 provides two basic means of selecting a relevant Chapter Two guideline: the Statutory Index and § 2X5.1. U.S.S.G. § lB1.2(a).
9
We conclude that the general language interpreted by
Crawford
and
Takahashi,
which precedes the paragraph setting forth these two means, applies to both. Not only does the structure of thе provision suggest this reading, but the language we interpreted in
Crawford
and
Takahashi
is nearly identical to the language of § 2X5.1.
Compare Craw
*900
ford,
Applying these principles to this case, we hold that the district court erred in selecting § 2A5.2 as the most analogous guideline. In concluding that § 2A5.2 was the appropriate guideline to apply to McEnry’s offense, the district court remarked that § 2A5.2 “isn’t directly aрplicable for the offense, which is operating without the airman’s certifícate.” Explaining its choice, it noted that § 2A5.2 “does, if you will, raise or track some of the kinds of risks that are raised.” 12 Thus, the district court based its choice not on the elements of the offense or the facts alleged in the indictment, but on the defendant’s particular relevant conduct and the risk it *901 created. 13
Considering the statute of conviction and excluding relevant uncharged conduct, by contrast, we conclude that § 2B1.1 is the correct guideline in this casе. McEnry’s offense is nearly identical to a federal offense that is listed in the Statutory Index. McEnry was convicted of violating 49 U.S.C. § 46306(b)(7), which provides that “a person shall be ... imprisoned for not more than 3 years ... if the person ... knowingly and willfully serves or attempts to serve in any capacity as an airman without an airman’s certificate authorizing the individual to serve in that capacity.” This section, however, applies only to aircraft not used to provide air transportation. 49 U.S.C. § 46306(a). Another provision governs the same сonduct in the context of providing air transportation: “An individual shall be ... imprisoned for not more than 3 years ... if that individual ... knowingly and willfully serves or attempts to serve in any capacity as an airman operating an aircraft in air transportation without an airman’s certificate authorizing the individual to serve in that capacity.” 49 U.S.C. § 46317(a)(1). The most analogous offense to knowingly serving as an airman operating an aircraft
not
used to provide air transportation without an airman’s certificate is knowingly serving as an airman operating an aircraft that
is
used to provide air transportation without an airman’s certificate.
Cf. United States v. Carrillo-Hernandez,
Because the Statutory Index provides that the
only
guideline section to be applied to violations of 49 U.S.C. § 46317(a) is § 2B1.1,
see
U.S.S.G. App’x A, § 2B1.1 is also the “most analogous offense guideline” for 49 U.S.C. § 46306(b)(7). U.S.S.G. § 2X5.1;
cf. Crawford,
United States v. Fisher,
Finally, the government suggests for the first time in a 28(j) letter that the district court’s error was harmless. That argument, however, was available at the time it filed its answering brief.
15
Accordingly, the government has waived that argument.
See, e.g., Smith v. Marsh,
IV.
By relying on McEnry’s uncharged relevant conduct in selecting the applicable guideline, thе district court incorrectly calculated McEnry’s Guidelines range. In doing so, it committed procedural error in sentencing him.
Carty,
VACATED and REMANDED.
Notes
. The cause of McEnry’s erratic behavior is disputed. The district court ultimately ruled that, regardless of the cause, McEnry was in a condition in which he should not have been flying, and neither party contends that the issue has any bearing on the selection of the guideline under which McEnry should have been sentenced.
. There is some evidence that, subsequent to his arrest in this case, McEnry made false statements in his application for a pilot’s license. As with the cause of McEnry’s behavior, this evidence has no bearing on the question before the panel.
. This statute applies only to aircraft not used to provide air transportation. 49 U.S.C. § 46306(a).
. At sentencing, the government presented a variety of evidence suggesting that McEnry was involved in drug trafficking. Neither party argues that this evidence was relevant *896 to the determination of the correct guideline. The district court determined that the drug trafficking-related evidence is "not any evidence” which "simply doesn’t approach preponderance, doesn’t even approach the sufficiency to draw an inference,” and concluded that it "d[id]n’t find any basis in fact or law to enhance the sentence based on the evidence that’s been received.” The government does not contest this finding. Accordingly, this evidence is not relevant to McEnry’s appeal.
. Thеre is "an intracircuit conflict as to whether the standard of review for application of the Guidelines to the facts is de novo or only for abuse of discretion,”
Laurienti,
. Section 2X5.1 provides, in relevant part:
If the offense is a felony for which no guideline expressly has been promulgated, apply the most analogous offense guideline. If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553 shall control, except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter Two offense guideline shall remain applicable. U.S.S.G. § 2X5.1. Further guidance is provided by the background comment to the section: "The court is required to determine if there is a sufficiently analogous offense guideline and, if so, to apply the guideline that is most analogous.” U.S.S.G. § 2X5.1 cmt. background.
. The words "the nature of” were removed from the Statutory Index by Amendment 591, effective November 1, 2000. U.S.S.G. App’x C para. 591.
. To the extent that some of our cases rely on the excised language (directly or indirectly) to suggest that relevant conduct may be used to select the appropriate guideline pursuant to U.S.S.G. § lB1.2(a) and the Statutory Index, they have been superseded by this amendment.
See, e.g., United States v. Lomow,
. Section lB1.2(a) provides, in relevant part:
Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted)....
Refer to the Statutory Index (Apрendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for the offense of conviction.... For statutory provisions not listed in the Statutory Index, use the most analogous guideline. See § 2X5.1 (Other Offenses).
U.S.S.G. § IB 1.2(a).
. Section lB1.2(a) was amended effective November 1, 2000, to remove the word "most”. U.S.S.G. App’x C para. 591 (2000). While this amendment makes its language appear less like § 2X5.1, it was, as noted above, "intended to emphasize that the sentencing court must apply the offense guideline referenced in the Statutory Index.” Id. Thus, while thе amendment makes the language of §§ IB 1.2(a) and 2X5.1 slightly less analogous, it also strengthens the underlying point: the offense of conviction and its elements are what matter most in selecting an appropriate guideline.
. Although we rely on our own Circuit law and the plain language of the Guidelines to decide this case, we note that our conclusion that the application of § 2X5.1 to select an appropriate guideline for offenses not listed in the Statutory Index is in the first instance a statutory question determined by the еlements of the offense is consistent with the dominant approach to § 2X5.1 employed by our sister circuits. That approach, which was set forth in depth in
United States v. Osborne,
.We note that the district court’s concern about McEnry’s recklessness is also addressed by the correct guideline.
See
U.S.S.G. § 2Bl.l(b)(13) (enhancing the base offense level in cases involving conscious or reckless risk of death or serious bodily injury). Even in cases where the most analogous guideline does not address a pаrticularly important "circumstance[ ] of the offense,” however, a district court is within its discretion to consider that factor after correctly calculating the Guidelines range. 18 U.S.C. § 3553(a)(1);
see United States v. Carty,
. The indictment in this case makes no mention of recklessness. As such, we express no opinion as to whether the district court’s look to the allegations in the indictmеnt to select the appropriate guideline would have been permissible in this case. Moreover, because this case does not present a situation where more than one guideline is “sufficiently analogous” to McEnry’s crime of conviction, U.S.S.G. § 2X5.1, we express no opinion about whether the court might be permitted to look to more facts in such a case.
. We express no opinion on how § 2X5.1 is to be applied in situations other than in the initial selection of a guideline pursuant to § lB1.2(a).
. The government contends that its harmless error argument was not previously available, relying on a new Seventh Circuit case,
United States v. Hill,
. Even if the government had not waived this argument, it would not have met its burden of demonstrating harmless error under the law of this circuit.
See, e.g., United States v. Beng-Salazar,