United States v. Altschul

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 8, 2004
Charles R. Fulbruge III
Clerk
No. 04-40284
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TODD W. ALTSCHUL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:03-CR-19-ALL)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Todd W. Altschul was convicted by a jury
of one count of assaulting a federal officer in violation of
18 U.S.C. § 111. The district court sentenced him to serve 120
months in prison and a three-year term of supervised release. The
court imposed this term of imprisonment to run consecutively to
several undischarged terms of incarceration that Altschul had been
sentenced to serve. Altschul now appeals his conviction and
*
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this opinion should not be published and is not precedent except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.
sentence. He also seeks appointment of new counsel. Altschul’s
motion for new counsel is DENIED.
Altschul asserts that the evidence adduced at trial was
insufficient to support his conviction because this evidence showed
that the victim was a contract guard, not a federal employee. As
Altschul did not move for a judgment of acquittal, review of this
issue is “limited to determining whether the record is devoid of
evidence pointing to guilt.” United States v. Herrera, 313 F.3d
882, 885 (5th Cir. 2002) (en banc) (internal quotation and citation
omitted), cert. denied, 537 U.S. 1242 (2003). The evidence adduced
at trial was sufficient to establish that the victim should be
considered a federal employee for § 111 purposes. See United
States v. Jacquez-Beltran, 326 F.3d 661, 663 & n.5. (5th Cir.),
cert. denied, 124 S. Ct. 320 (2003); United States v. Hooker,
997 F.2d 67, 74 (5th Cir. 1993). Consequently, the evidence is
likewise sufficient to support Altschul’s conviction. See Herrera,
313 F.3d at 885.
Altschul contends that the district court improperly
instructed the jury concerning whether the victim was a federal
employee. Altschul has not shown that the district court’s
instructions, which tracked this circuit’s pattern instruction
for a § 111 offense, amount to plain error. See United States
v. McClatchy, 249 F.3d 348, 357 (5th Cir. 2001); United States v.
Tomblin, 46 F.3d 1369, 1379 n.16 (5th Cir. 1995). Altschul has not
shown error in connection with his conviction.
2
Altschul likewise has not shown error in connection with his
sentence. He contends that the district court misapplied U.S.S.G.
§ 5G1.2 when it directed that his term of imprisonment run
consecutively to several other undischarged terms of incarceration.
This argument is inapposite, as the record shows that the court’s
decision to require that Altshcul’s prison sentence run
consecutively to other prison sentences was not based on this
Guideline.
Altschul also insists that the district court impermissibly
double-counted when it imposed a sentencing adjustment pursuant to
U.S.S.G. § 2A2.4. This argument is likewise inapposite. The
district court sentenced Altschul as a career offender, and the
proposed § 2A2.4 enhancement had no bearing on Altschul’s sentence.
Altschul has not shown error in connection with his conviction and
sentence. Accordingly, the judgment of the district court is
AFFIRMED.
MOTION FOR APPOINTMENT OF NEW COUNSEL DENIED; JUDGMENT OF
DISTRICT COURT AFFIRMED.
3