### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-40775 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. DAMON EMANUEL ELLIOTT, Defendant-Appellant

Appeals from the United States District Court for the Eastern District of Texas USDC No. 1:08-CR-121-1

Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges PER CURIAM: * A jury found Damon Emanuel Elliott gu i l ty of two counts of assault of a corrections officer and one count of possession of contraband. He was sentenced to a total of 150 months in prison. On appeal, he challenges the Government’s

use of a peremptory strike to excuse venireperson Margie Jacques, arguing that it violated his constitutional rights in light o f Ba ts o n v. Kentucky , 476 U.S. 79 (1986). In Batson , the Court delineated a three-step analysis for evaluation of

a defendant's claim th a t a p r osecutor used a peremptory strike in a racially U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D April 24 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-40775 Document: 00511832522 Page: 1 Date Filed: 04/24/2012No. 10-40775

discriminatory manner: (1) a defendant must make a prima facie showing that the prosecutor exercised his peremptory challenges on the basis of race; (2) the burden then shifts to the pr o s e c u t or to articulate a race-neutral reason for striking the juror in question; and (3) the trial court must determine whether the defendant carried his burden of provi ng purposeful discrimination. Moody v. Quarterman , 476 F.3d 260, 266 (5th Cir. 200 7). We review the district court’s Batson determination for clear e rr or. See United States v. Denman , 100 F.3d 399, 404 (5th Cir. 1996). The district court’s decision that a prosecutor had a race-neutral reason for striking a member of the venire is a credibility determination which is entitled to d e ference

. United States v. De La Rosa , 911 F.2d 985, 991 (5th Cir. 199 0). The record supports the district c o u rt ’ s finding that the Government provided racially-neutral reasons fo r the peremptory challenge at issue. Specifically, Jacques’s demeanor and her inattentiveness and disinterest were valid reasons for her exclusion. See Hernandez v. New York , 500 U.S. 352, 360- 61 (1991); United States v. Lance , 853 F.2d 1177, 1180-81 (5th Cir. 1988); Moore

v. Keller Industries, Inc ., 948 F.2 d 1 9 9 , 202 (5th Cir. 1991). Moreover, the district court itself confirmed on the record that Jacques was “quick, timid, and i n a h u rry to sit down and to disengage from this whole process.” The dist ri c t court was in the best position to observe and judge Jacques’s demeanor during voir dire. See United States v. Valley , 928 F.2d 130, 136 (5th Cir. 1991). Elliott has not shown that the district court’s decision was clearly erroneous. Se e Denman , 100 F.3d at 404. The judgment of the district court is AFFIRMED.

2 Case: 10-40775 Document: 00511832522 Page: 2 Date Filed: 04/24/2012