United States v. Smith , 145 F. App'x 84 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 29, 2005
Charles R. Fulbruge III
Clerk
No. 05-40171
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VINCENT LAMAR SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CR-77-1
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Vincent Lamar Smith (Smith) appeals his jury conviction and
sentence for assaulting a federal officer in violation of 18 U.S.C.
§ 111.
Smith contends that the evidence at trial was insufficient to
sustain the jury’s verdict. Specifically, he argues that the
Government failed to prove that he intentionally assaulted
Correctional Officer Timothy LaBorde (Officer LaBorde).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40171
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Viewing the evidence in the light most favorable to the
verdict, the evidence was sufficient to establish that Smith
intentionally assaulted Officer LaBorde. Officer LaBorde, Senior
Officer Specialist David Chapman (Officer Chapman), and
Correctional Officer Scott Tommey (Officer Tommey) testified that
Smith was upset with the outcome of the disciplinary hearing.
Officer LaBorde testified that after he removed one of the cuffs,
Smith immediately spun around “so he could get more power into it”
and started jerking the handcuffs away from him. Officers Chapman
and Tommey also testified that they saw Smith jerk Officer
LaBorde’s hand into the food slot. Finally, Officer LaBorde
testified that he did not believe that the incident was an
accident. Therefore, the evidence was sufficient to sustain the
jury’s verdict. See United States v. Moore, 958 F.2d 646, 648-49
(5th Cir. 1992).
Smith also contends that the district court violated his Sixth
Amendment right to a fair trial when it excused a juror for cause
when no bias on the part of that juror was demonstrated. Smith is
not entitled to any relief on this claim because he does not
challenge the impartiality of the panel that actually judged his
case. See United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222
(5th Cir. 1994).
Finally, Smith contends that his sentence is unconstitutional
in light of Blakely v. Washington, 542 U.S. 296 (2004), and United
States v. Booker, 125 S. Ct. 738 (2005). Specifically, Smith
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argues that the district court violated his Sixth Amendment right
to a jury trial when it enhanced his sentence based on the district
judge’s finding that he was a career offender because this fact was
neither admitted by him nor found by a jury beyond a reasonable
doubt.
Smith was sentenced after the Court’s decision in Booker and
pursuant to an advisory Guidelines scheme. Thus, the district
court’s determination, under an advisory Guidelines scheme, that
Smith was a career offender did not violate his Sixth Amendment
right to a jury trial. See Booker, 125 S. Ct. at 750, 764.
Accordingly, the district court’s judgment is AFFIRMED.