United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 30, 2004
Charles R. Fulbruge III
Clerk
No. 03-20309
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD PROCTOR; ALFREDIA J. REED,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Texas
(4:01-CR-756-1)
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
In this joint appeal, Defendants-Appellants Donald Proctor and
Alfredia J. Reed challenge their convictions and sentences for one
count of conspiracy to defraud the United States, one count of
health care fraud, and two counts of making false statements on
income tax returns. In attacking their convictions, appellants
argue that the district court reversibly erred when it refused to
instruct the jury on the defense of good faith.
*
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this opinion should not be published and is not precedent except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.
The district court’s refusal to grant a requested jury
instruction is reviewed for abuse of discretion. See United States
v. McClatchy, 249 F.3d 348, 356 (5th Cir. 2001). Reversible error
occurs only when the charge, “examined in the full context of trial
including the final arguments of counsel has thwarted defendant’s
presentation of his good faith defense.” United States v. Gunter,
876 F.2d 1113, 1119 (5th Cir. 1989) (internal quotation omitted).
Our careful review of the record shows that the good-faith defense
was vigorously pursued by appellants throughout the trial. Because
“[t]aken together, the trial, charge, and closing argument laid
[the defendants’] theory squarely before the jury,” the district
court did not abuse its discretion in refusing to give the
requested instruction. See United States v. Gray, 751 F.2d 733,
735-36 (5th Cir. 1985).
In a supplemental brief, the appellants contend, for the first
time on appeal, that under Blakely v. Washington, 124 S. Ct. 2531
(2004), the district court’s application of various sentencing
enhancements violated their Sixth Amendment rights because the
enhancements were based on facts not found by a jury beyond a
reasonable doubt. As the appellants acknowledge, however, this
court, in United States v. Pineiro, 377 F.3d 464, 473 (5th Cir.
2004), petition for cert. filed (U.S. July 14, 2004) (No. 04-5263),
refused to extend Blakely to the federal Sentencing Guidelines.
The appellants’ argument is foreclosed by Pineiro.
2
Noting that the Supreme Court has granted certiorari to
consider cases raising the application of Blakely to the
Guidelines, the appellants request a stay of their appeal pending
the Supreme Court’s resolution of the issue. The defendants’
request for a stay is denied. See Wicker v. McCotter, 798 F.2d
155, 157-58 (5th Cir. 1986) (despite grant of certiorari, this
court continues to follow its own binding precedent).
AFFIRMED.
3