United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 14, 2004
Charles R. Fulbruge III
Clerk
No. 04-30203
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GARCIA-BELTRAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:03-CR-10010-1
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
David Garcia-Beltran appeals his sentences and his jury
convictions under 18 U.S.C. § 113(a)(3) for assault with a
dangerous weapon and 18 U.S.C. § 1791(a)(2) for possession of
prison contraband. Garcia-Beltran asserts that the evidence did
not establish that he possessed a weapon and inflicted puncture
wounds to an inmate. Garcia explains that he engaged in a
“frontal fist fight assault” and could not have caused the
inmate’s stab wounds. Garcia argues that the weapon was found on
*
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this opinion should not be published and is not precedent except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. 04-30203
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the prison yard and could have been thrown there by any one of
the many inmates who witnessed the fight. Garcia also asserts
that any inmate in the yard could have caused the stab wounds.
We view “the evidence and the inferences that may be drawn
from it in the light most favorable to the verdict,” and we
determine whether “a rational jury could have found the essential
elements of the offenses beyond a reasonable doubt.” United
States v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992).
We will not substitute our credibility determination for that of
the jury. United States v. Williams, 132 F.3d 1055, 1059 (5th
Cir. 1998).
Section 1791(a)(2), 18 U.S.C., proscribes a prison inmate
from making, possessing, obtaining, or attempting to obtain a
“prohibited object.” A “prohibited object” includes a weapon or
an object that is designed or intended to be used as a weapon.
See 18 U.S.C. § 1791(d)(1)(B). Trial testimony established that
Garcia-Beltran possessed a “shank,” which is a weapon and a
prohibited object as that term is defined in 18 U.S.C. § 1791.
The evidence supports the jury’s finding that Garcia-Beltran was
guilty of violating 18 U.S.C. § 1791(a)(2). See Williams, 132
F.3d at 1059; Estrada-Fernandez, 150 F.3d at 494.
A violation of 18 U.S.C. § 113(a)(3) requires proof that the
defendant assaulted the victim with a dangerous weapon and with
the intent to do bodily harm; an 18 U.S.C. § 113(a)(3) violation
does not require proof of any physical contact. United States v.
No. 04-30203
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Estrada-Fernandez, 150 F.3d 491, 494-95 (5th Cir. 1998). The
trial testimony establishes that Garcia-Beltran committed the
essential elements of an 18 U.S.C. § 113(a)(3) violation. See
Williams, 132 F.3d at 1059; Estrada-Fernandez, 150 F.3d at 494.
Garcia asserts that the district court sentenced him in
violation of Blakely v. Washington, 124 S. Ct. 2531 (2004), by
imposing a sentence based on facts that were neither admitted nor
found by a jury beyond a reasonable doubt. Garcia’s argument is
foreclosed by United States v. Pineiro, 377 F.3d 464, 466 (5th
Cir. 2004), petition for cert. filed, (U.S. July 14, 2004) (No.
04-5263). See United States v. Lipscomb, 299 F.3d 303, 313 n.34
(5th Cir. 2002). Accordingly, Garcia’s convictions and sentences
are AFFIRMED.
We REMAND to the district court for correction of the
judgment pursuant to FED. R. CRIM. P. 36 to reflect that Garcia
was convicted in Count Two of a violation of 18 U.S.C.
§ 1791(a)(2).
AFFIRMED and REMANDED with instruction.