                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 30, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-20270
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

DAVID EARNEST,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:03-CR-401
                      --------------------

Before GARZA DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     David Earnest, federal prisoner # 03721-025, appeals his

conviction for assault of a federal correctional officer.          He

argues that the district court abused its discretion in refusing

to instruct the jury on self-defense.

     Earnest, however, was not entitled to a self-defense

instruction given that there was insufficient evidence for a

reasonable jury to find in his favor.     See United States v.

Branch, 91 F.3d 699, 711-12 (5th Cir. 1996).    The evidence


     *
       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this opinion should not be published and is not precedent except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. 04-20270
                                  -2-

supports a conclusion that Earnest resorted to excessive force in

response to a use of force that was not excessive, and,

therefore, the affirmative defense of self defense was

unavailable.     See Branch, 91 F.3d at 714-15; United States v.

Ochoa, 526 F.2d 1278, 1282 (5th Cir. 1976).    Earnest’s testimony

that he submitted to restraints is but a “single item of evidence

overwhelmed by other evidence in the record” and is therefore

insufficient to create a factual issue for the jury entitling him

to the requested instruction.     See Branch, 91 F.3d at 712-13.

     AFFIRMED.
