* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

October 14, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-30203

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID GARCIA-BELTRAN,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:03-CR-10010-1 

--------------------

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
No. 04-30203

-2-

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

-3-

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.