     Case: 11-40614     Document: 00511906997         Page: 1     Date Filed: 07/02/2012




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

                                                                            FILED
                                                                            July 2, 2012
                                     No. 11-40614
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAYFORD ELTON LEACH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CR-46-1


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        A jury convicted Rayford Elton Leach of violating 18 U.S.C. § 111(a)(1)
when he assaulted a Deputy United States Marshal with an automobile. The
district court sentenced him to 135 months in prison and a three-year term of
supervised release. Leach appeals, asserting three grounds for relief.
        Leach contends that the indictment should have been dismissed for lack
of federal jurisdiction because the marshal was not performing his official duties
when he apprehended Leach. Subject matter jurisdiction is a question of law we

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-40614       Document: 00511906997           Page: 2     Date Filed: 07/02/2012

                                        No. 11-40614

review de novo. In re Grand Jury Proceedings, 115 F.3d 1240, 1243 (5th Cir.
1997). Section 111(a)(1) makes it a crime to forcibly assault any federal officer
engaged in the performance of his official duties. § 111(a)(1). The statute
provides for an enhanced penalty when the perpetrator uses a deadly or
dangerous weapon or inflicts bodily injury. § 111(b). The language in the
indictment returned against Leach tracked the language in § 111(a)(1) and (b).
Accordingly, the indictment was sufficient to confer subject matter jurisdiction
on the district court. See United States v. Jackson, 313 F.3d 231, 233 (5th Cir.
2002).1
       Leach next contends that the district court plainly erred when it failed to
issue a jury instruction regarding whether Leach knew that the marshal was a
federal law enforcement employee. Because Leach failed to preserve his jury
instruction claim, we review for plain error. See United States v. Sellers, 926
F.2d 410, 417 (5th Cir.1991). Leach never asserted or argued that he did not
know the marshal was a federal employee attempting to arrest him or that he
acted out of a reasonable belief that he was being attacked by a private citizen.
Thus, the district court did not plainly err in failing to issue such an instruction.
See Sellers, 926 F.2d at 417. Our conclusion is further supported by the fact that
the district court used the pattern jury instruction in the instant case. See Fifth
Circuit Pattern Jury Instructions (Criminal) § 2.09. By giving an instruction
that tracked the pattern instruction and that was a correct statement of the law,
the district court did not plainly err. See United States v. Whitfield, 590 F.3d
325, 354 (5th Cir. 2009); United States v. Feola, 420 U.S. 671, 686 (1975)
(holding that under § 111, the defendant’s knowledge of the official status of the
victim is generally irrelevant).

       1
        To the extent Leach conflates jurisdiction with the sufficiency of the evidence, his
argument nevertheless fails. The official duties of a federal marshal can encompass the
apprehension of a suspect who is wanted by state authorities. United States v. Kelley, 850
F.3d 212, 214-15 (5th Cir. 1988); United States v. Lopez, 710 F.2d 1071, 1074-75 (5th Cir. 1983).
Thus, Leach’s assertion to the contrary is without merit.

                                               2
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                                  No. 11-40614

      Leach finally contends that the district court clearly erred when it
increased his offense level by six levels pursuant to U.S.S.G. § 3A1.2(c)(1), which
provides for such an increase “[i]f, in a manner creating a substantial risk of
serious bodily injury, the defendant . . . knowing or having reasonable cause to
believe that a person was a law enforcement officer, assaulted such officer
during the course of the offense.” Leach argues that the jury never found that
he knew the marshal was a law enforcement officer. Leach’s argument is
contradicted by the record, which showed that Leach’s vehicle was surrounded
by several vehicles, all of which had flashing emergency lights; that the
marshals were wearing bullet-proof vests which identified them as law
enforcement officers; and that the marshals announced themselves to be law
enforcement officers. Accordingly, the district court did not clearly err in
applying the § 3A1.2(c)(1) enhancement. See United States v. Zuniga-Amezquita,
468 F.3d 886, 888 (5th Cir. 2006); United States v. Jacquinot, 258 F.3d 423, 430
(5th Cir. 2001).
      AFFIRMED.




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