IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 11, 2007
No. 06-41270
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DAWANE A. MALLETT
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05-CR-57
Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Dawane A. Mallett appeals his conviction and sentence for assault of a
federal corrections officer and possession of a prohibited object by an inmate.
Mallett argues that the Government did not present sufficient evidence to
support his convictions. He contends that no physical evidence linked him to the
charged offenses. The Government presented eyewitness testimony and
videotape evidence that established Mallett perpetrated the attack on the federal
corrections officer with a prohibited object. The evidence was sufficient for a
*
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should not be published and is not precedent except under the limited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. 06-41270
rational trier of fact to find that Mallett was guilty beyond a reasonable doubt.
See United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).
Mallett also contends that his constitutional rights were violated when the
district court enhanced his sentenced beyond the maximum authorized by the
facts charged in the indictment, admitted by him, or found by a jury beyond a
reasonable doubt. Specifically, he argues that the district court erred in
applying various sentence enhancements, including an enhancement for being
a career offender. Mallett was sentenced in July 2006, after the issuance of
United States v. Booker, 543 U.S. 220 (2005). Thus, the district court’s
determination, under an advisory guidelines scheme, that various sentence
enhancements should be applied in the calculation of Mallett’s sentence, did not
violate Mallett’s right to a jury trial. See United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005).
Mallett argues that his sentence is unreasonable as a matter of law
because this court’s application of a presumption of reasonableness to sentences
imposed within a properly calculated guidelines range is in violation of the
principles announced in United States v. Booker, 543 U.S. 220 (2005). He
concedes that the argument is foreclosed by circuit precedent but raises it to
preserve it for further review. Mallett’s argument is foreclosed by Rita v. United
States, 127 S. Ct. 2456, 2462-66 (2007), wherein the Supreme Court affirmed the
use of a presumption of reasonableness to review sentences imposed within the
guidelines range. Mallett further argues that his sentence of 216 months of
imprisonment, with was within the applicable advisory sentencing guidelines
range, is unreasonable because it is greater than necessary to meet the
sentencing objectives of 18 U.S.C. § 3553(a). Mallett has not shown that the
sentence was unreasonable or that this court should not defer to the district
court’s determinations at sentencing. See Mares, 402 F.3d at 519. Mallett
presents no arguments to show that his circumstances are “special enough that,
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No. 06-41270
in light of § 3553(a), they require a sentence lower than the sentence the
Guidelines provide.” Rita, 127 S. Ct. at 2470.
Accordingly, the judgment of the district court is AFFIRMED.
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