United States v. Washington ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-30223
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCELLUS WASHINGTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CR-10014-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Marcellus Washington was convicted in a jury trial of
attempted murder of a federal employee (count one), assaulting a
federal employee (count two), and resisting a federal employee
(count three). Washington was sentenced to (1) life imprisonment
on counts one and three and three years of imprisonment on count
two, all of which were to run concurrently; (2) three years of
supervised release on counts one and three and one year of
*
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this opinion should not be published and is not precedent except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. 04-30223
-2-
supervised release on count two, all of which were to run
concurrently; and (3) a $300 special assessment.
Washington argues on appeal that the evidence was
insufficient to support his conviction for attempted murder of a
federal employee. He contends that because he told a prison
psychologist that he was having suicidal thoughts and was
considering attacking another inmate in order to get himself
killed, there was equal circumstantial support for theories of
innocence and guilt, and thus his conviction should be
overturned. See United States v. Barton, 257 F.3d 433, 439 (5th
Cir. 2001). However, Washington told the psychologist and two
investigators after the incident that his intent was to kill the
victim, rather than to get himself killed. Therefore, viewing
the evidence in the light most favorable to the verdict, there
was not equal or nearly equal circumstantial support for theories
of innocence and guilt, and a rational trier of fact could have
found beyond a reasonable doubt that Washington had intended to
kill the victim. See Barton, 257 F.3d at 439; United States v.
Moser, 123 F.3d 813, 819 (5th Cir. 1997); United States v.
El-Zoubi, 993 F.2d 442, 445 (5th Cir. 1993).
Washington also argues that, in violation of the Eighth
Amendment, his sentence of life imprisonment is grossly
disproportionate to the crimes committed. In McGruder v.
Puckett, 954 F.2d 313, 316-17 (5th Cir. 1992), this court held
that a conviction for auto burglary, when coupled with a prior
No. 04-30223
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history of convictions that included two armed robberies, was not
disproportionate to a sentence of life imprisonment without
parole under a Mississippi habitual offender statute. Similarly,
Washington’s sentence of life imprisonment without parole as an
habitual offender is not grossly disproportionate to his instant
crimes of attempting to kill a federal employee and resisting a
federal employee, along with his prior convictions for (1)
possession of a weapon for an unlawful purpose, resisting arrest,
and two counts of robbery and (2) robbery, use of a firearm
during a crime of violence, and carjacking, and thus his sentence
does not violate the Eighth Amendment. See id.Washington argues for the first time on appeal that the
district court erred in making various adjustments to his base
offense level and in enhancing his sentence due to his status as
a career offender because the factual findings supporting the
adjustments and the enhancement were made by the district court
by a preponderance of the evidence and were not made by a jury
based on proof beyond a reasonable doubt. He contends that, in
light of the Supreme Court’s decision in Blakely v. Washington,
124 S. Ct. 2531 (2004), the use of the court’s factual findings
in the determination of his sentence violates the Sixth
Amendment. As Washington acknowledges, this issue is foreclosed.
See United States v. Pineiro, 377 F.3d 464, 473 (5th Cir. 2004),
petition for cert. filed (U.S. July 14, 2004) (No. 04-5263).
AFFIRMED.