     Case: 11-41285     Document: 00512028105         Page: 1     Date Filed: 10/22/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 22, 2012
                                     No. 11-41285
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KEMAR RAMON JAMES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:10-CR-1296-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Kemar Ramon James was convicted by a jury of one
count of assault on a federal officer, for which he was sentenced within the
applicable guidelines range to serve 28 months in prison and a three-year term
of supervised release. On appeal, James contends that the district court erred
when it denied his motion to dismiss his indictment, based on a claimed
violation of his right to a speedy trial. James insists that his rights under the
Speedy Trial Act were violated because he was not timely indicted after he

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-41285

committed the act that led to the instant prosecution while he was in the Special
Management Unit (SMU) of the detention center where he was being held in
connection with immigration proceedings.         This argument is unavailing,
however, as James has not shown that the primary or exclusive reason he was
placed in the SMU was to secure him for criminal proceedings. See United
States v. De La Pena-Juarez, 214 F.3d 594, 598 (5th Cir. 2000). His contention
that his rights were infringed because he was not indicted within a specific time
after being read his rights pursuant to Miranda v. Arizona, 384 U.S. 411-86
(1966), misses the mark because that date is not pertinent. See id. at 597 n.6.
His claim that the district court erred by not performing the balancing test of 18
U.S.C. § 3162(a)(1) lacks merit because his indictment was not dismissed. See
United States v. Ortiz, 687 F.3d 660, 665 (5th Cir. 2012).
      In his challenge to the sufficiency of the evidence, James urges that the
evidence does not suffice to uphold his conviction because it fails to show that he
acted intentionally. As James did not move for a judgment of acquittal at the
close of all the evidence, we review his sufficiency claim for “a manifest
miscarriage of justice,” which is present only when the record is “devoid of
evidence pointing to guilt.” United States v. Miller, 576 F.3d 528, 529-30 (5th
Cir. 2009) (internal quotation marks omitted). As the evidence shows that
James assaulted a federal officer who was engaged in his official duties, the jury
was free to disregard James’s assertion that he did not intend to hit the guard.
See United States v. Johnson, 381 F.3d 506, 508 (5th Cir. 2004); United States
v. Moore, 997 F.2d 30, 35 n.8 (5th Cir. 1993). James has not shown that his
conviction constitutes a manifest miscarriage of justice. See Miller, 576 F.3d at
529-30.
      James also asserts that the district court erred when it declined his
request to have the jury instructed on the definition of intent. James has not
shown that the district court abused its substantial discretion by charging the
jury in accordance with this circuit’s pattern jury instructions. See United States

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                                  No. 11-41285

v. Rios, 636 F.3d 168, 171 (5th Cir.), cert. denied, 132 S. Ct. 267 (2011); United
States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009).
      James complains further that the government infringed his rights to due
process and compulsory process of witnesses by releasing and deporting other
detainees who witnessed the incident.       As James has not shown that the
putative witnesses in question were necessary to his case, he is not entitled to
relief on this claim. See United States v. Gonzales, 79 F.3d 413, 424 (5th Cir.
1996). Finally, we decline to review the district court’s denial of James’s request
for a downward departure because nothing in the record indicates that the
district court misapprehended its authority to depart. See United States v.
Lucas, 516 F.3d 316, 350 (5th Cir. 2008).
      AFFIRMED.




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