United States v. Avila

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 6, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50140
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN M. AVILA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CR-413-ALL-OG
USDC No. SA-02-M-35-ALL
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Before BARKSDALE, EMILO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Rubin M. Avila appeals his conviction under 18 U.S.C. § 111
for simple assault, following a jury trial. Avila argues that the
evidence was not sufficient to support his conviction because it
did not show that he forcibly assaulted James Palermo, a member of
the Security Forces, or that he intended to place him in reasonable
apprehension of immediate harm.
*
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that this opinion should not be published and is not precedent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. 03-50140
-2-
Title 18 U.S.C. § 111 punishes anyone who "forcibly assaults,
resists, opposes, impedes, intimidates, or interferes with a
[federal officer] while engaged in or on account of the performance
of official duties." See United States v. Moore, 958 F.2d 646, 649
(5th Cir. 1992). Given the testimony at trial that Avila swung his
right arm towards the security officer who had placed his fingers
on the back of Avila’s arm because Palermo had insulted him, a
reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt. United States v.
Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995).
AFFIRMED.