United States Court of Appeals
Fifth Circuit
FILED
November 3, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT
Clerk
No. 03-51432
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
MARCELL D. DEAN,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-03-CR-65-ALL
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Before WIENER, BENAVIDES AND STEWART, Circuit Judges.
PER CURIAM:*
Marcell D. Dean was convicted by a jury of threatening to murder a federal judge with the
intent to retaliate against the judge on account of the performance of his official duties, a violation
of 18 U.S.C. § 115. The district court determined that Dean was a career criminal for purposes 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
U.S.S.G. §§ 4B1.1 and 4B1.2. Dean was sentenced to a 100-month imprisonment term and a three-
year term of supervised release.
Dean has filed a motion seeking to relieve the counsel appointed to represent him on appeal
so that he can raise claims of ineffective assistance of appellate counsel on direct appeal. He has also
filed a motion seeking the appointment of substitute counsel so that he can file a petition for a writ
of habeas corpus challenging his state conviction for murder. Those motions are DENIED.
Dean appeals his sentence on the ground that the district court erred in finding him to be a
career offender. Specifically, he argues that, because he was incarcerated in a Texas state prison at
the time he made the threat, it was not a credible threat that posed a serious potential risk of physical
harm to the judge.
Section 4B1.2 of the sentencing guidelines offers two disjunctive definitions of a “crime of
violence.” The district court did not err in finding that Dean’s instant offense is a “crime of violence”
for the purposes of determining career offender status. See 18 U.S.C. § 115; U.S.S.G. §§ 4B1.1 and
4B1.2(a)(1). Thus, the judgment of the district court is AFFIRMED.
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