United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 10, 2005

Charles R. Fulbruge III Clerk No. 04-30223 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCELLUS WASHINGTON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 02-CR-10014-ALL --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Marcellus Washington was convicted in a jury trial of

attempted murder of a federal employee (count one), assaulting a

federal employee (count two), and resisting a federal employee

(count three). Washington was sentenced to (1) life imprisonment

on counts one and three and three years of imprisonment on count

two, all of which were to run concurrently; (2) three years of

supervised release on counts one and three and one year 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 04-30223 -2-

supervised release on count two, all of which were to run

concurrently; and (3) a $300 special assessment.

Washington argues on appeal that the evidence was

insufficient to support his conviction for attempted murder of a

federal employee. He contends that because he told a prison

psychologist that he was having suicidal thoughts and was

considering attacking another inmate in order to get himself

killed, there was equal circumstantial support for theories of

innocence and guilt, and thus his conviction should be

overturned. See United States v. Barton,

(5th

Cir. 2001). However, Washington told the psychologist and two

investigators after the incident that his intent was to kill the

victim, rather than to get himself killed. Therefore, viewing

the evidence in the light most favorable to the verdict, there

was not equal or nearly equal circumstantial support for theories

of innocence and guilt, and a rational trier of fact could have

found beyond a reasonable doubt that Washington had intended to

kill the victim. See Barton,

; United States v.

Moser,

(5th Cir. 1997); United States v.

El-Zoubi,

(5th Cir. 1993).

Washington also argues that, in violation of the Eighth

Amendment, his sentence of life imprisonment is grossly

disproportionate to the crimes committed. In McGruder v.

Puckett,

(5th Cir. 1992), this court held

that a conviction for auto burglary, when coupled with a prior No. 04-30223 -3-

history of convictions that included two armed robberies, was not

disproportionate to a sentence of life imprisonment without

parole under a Mississippi habitual offender statute. Similarly,

Washington’s sentence of life imprisonment without parole as an

habitual offender is not grossly disproportionate to his instant

crimes of attempting to kill a federal employee and resisting a

federal employee, along with his prior convictions for (1)

possession of a weapon for an unlawful purpose, resisting arrest,

and two counts of robbery and (2) robbery, use of a firearm

during a crime of violence, and carjacking, and thus his sentence

does not violate the Eighth Amendment. See

Washington argues for the first time on appeal that the

district court erred in making various adjustments to his base

offense level and in enhancing his sentence due to his status as

a career offender because the factual findings supporting the

adjustments and the enhancement were made by the district court

by a preponderance of the evidence and were not made by a jury

based on proof beyond a reasonable doubt. He contends that, in

light of the Supreme Court’s decision in Blakely v. Washington,

(2004), the use of the court’s factual findings

in the determination of his sentence violates the Sixth

Amendment. As Washington acknowledges, this issue is foreclosed.

See United States v. Pineiro,

(5th Cir. 2004),

petition for cert. filed (U.S. July 14, 2004) (No. 04-5263).

AFFIRMED.