           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                                       No. 06-10072                      September 26, 2007

                                                                      Charles R. Fulbruge III
                                                                              Clerk
UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

ROY GENE GARDNER

                                                   Defendant-Appellant



                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:05-CR-179


Before REAVLEY, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
       Convicted on six counts related to his escape from federal custody, Roy
Gene Gardner challenges his conviction and sentence. AFFIRMED.
                                              I.
       Convicted in 1990 for unlawful possession of a firearm, Gardner entered
supervised release from prison in September 2004.                  His probation officer
petitioned in February 2005 to revoke supervised release and have him arrested.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-10072

Taken into custody on 15 February 2005, Gardner’s revocation hearing was
postponed due to his hospitalization on 18 February 2005.
      While hospitalized, Gardner was guarded by Smith Protective Services
(Smith), under contract with the United States Marshal’s Service. On 9 March
2005, Gardner escaped from custody. During his escape, Gardner assaulted one
of the Smith guards, took his firearm, and handcuffed him.
      As Gardner ran from the hospital, he approached a man standing by his
vehicle in the hospital parking lot. Gardner stuck the firearm in the man’s ribs
and demanded he drive him from the hospital; then, realizing the van was
already running, Gardner entered it alone and drove away. He was re-captured
the next day (10 March).
      On 7 July 2005, Gardner was indicted for the escape and related charges
of using and carrying a firearm in connection with the escape, assaulting a
security guard under contract with the Marshal’s Service, in violation of 18
U.S.C. § 111, and illegally possessing a firearm. A superseding indictment that
October added another count for assaulting a second security guard who was
under contract with the Marshal’s Service, a carjacking count, and companion
counts of using a firearm with those crimes.
      Gardner was convicted of escape from custody, assaulting a security guard,
possession of a firearm related to that assault, carjacking, using a firearm
during the carjacking, and being a felon in possession of a firearm. He was
sentenced, inter alia, to 744 months’ imprisonment.
                                       II.
      Gardner claims his arrest on 10 March 2005, following his escape the day
before, started the speedy trial clock running under 18 U.S.C. § 3161(b) (Speedy
Trial Act) and required his being indicted no more than 30 days later. He also
maintains the Smith guards were not qualified to receive the protections
afforded under 18 U.S.C. § 111 to those assisting federal officers; and, for this

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reason, the district court erred by both denying at trial his motion for judgment
of acquittal on the assault count and enhancing his offense level at sentencing.
                                        A.
      For its ruling under the Speedy Trial Act, the district court’s factual
findings are reviewed for clear error; its legal conclusions, de novo. United
States v. De La Pena-Juarez, 214 F.3d 594, 597 (5th Cir. 2000). The Speedy
Trial Act, 18 U.S.C. § 3161(b), provides: “Any information or indictment charging
an individual with the commission of an offense shall be filed within 30 days
from the date on which such individual was arrested or served with a summons
in connection with such charges”. Gardner maintains his 10 March 2005 arrest,
just a day after his escape from custody, was an arrest made on the basis of his
escape; and, for this reason, the Government was required by the Speedy Trial
Act to indict him within 30 days of that arrest.
      A person is arrested under the Speedy Trial Act when he is “taken into
custody after a federal arrest for the purpose of responding to a federal charge”.
United States v. Johnson, 815 F.2d 309, 312 (5th Cir. 1987). Gardner’s claim
fails because it confuses the purpose for which he was arrested. His 10 March
2005 arrest was based upon his original 1990 conviction and sentencing for
firearms possession.    Gardner had been placed on supervised release in
September 2004 for that 1990 conviction, and he escaped from custody while he
was hospitalized in February 2005 awaiting his revocation hearing.
      While this court has not had occasion to analyze an escape case like
Gardner’s in the light of the Speedy Trial Act, other circuit courts following this
same logic have held the Act does not require a formal charge of escape within
30 days of an arrest when a person is re-captured after having escaped from
custody. United States v. Zukowski, 851 F.2d 174, 177 (7th Cir. 1988); United
States v. Sairafi, 801 F.2d 691, 692 (4th Cir. 1986); United States v. Stead, 745
F.2d 1170, 1172-73 (8th Cir. 1984).

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                                         B.
      One of the counts of conviction was under 18 U.S.C. § 111, because the
Smith guard assaulted during the escape was under contract with the Marshal’s
Service and met the criteria for federal protection provided to “any person
assisting . . . an officer or employee [of the United States] in the performance of
[official] duties . . . .” 18 U.S.C. § 1114. The federal protection afforded the Smith
guards also influenced sentencing, because Gardner’s offense level was enhanced
at sentencing under Sentencing Guidelines §§ 3A1.2 and 3A1.3.               Gardner
challenges the denial of his motion for judgment of acquittal on the 18 U.S.C. §
111 count, as well as the sentence enhancements, claiming the Smith guards’
behavior disqualified them from the protections afforded persons assisting
federal officers.
                                          1.
      Gardner moved for judgment of acquittal at the close of all the evidence.
Accordingly, the denial of his motion is reviewed de novo. E.g., United States v.
Fuchs, 467 F.3d 889, 904 (5th Cir. 2006), cert. denied, 127 S. Ct. 1502 (2007). “In
determining whether there was sufficient evidence to sustain [the] convictions,
we must decide, viewing the evidence and the inferences therefrom in the light
most favorable to the verdict, whether a rational juror could have found [the
defendant] guilty beyond a reasonable doubt.” Id. (citing United States v.
Anderson, 174 F.3d 515, 522 (5th Cir. 1999)).
      A federal officer, or any person assisting one, as was the Smith guard
assaulted by Gardner, is protected from assault by 18 U.S.C. § 111, so long as he
is performing his assigned duties and is “not on a frolic of his own”. United
States v. Lopez, 710 F.2d 1071, 1074 (5th Cir. 1983). A security guard hired to
watch a hospitalized prisoner, who allows the prisoner to use the restroom
(entirely within the guidelines of the job), and who then is violently assaulted by
the prisoner, is not engaged in a frolic of his own in any sense of the words.

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      Gardner attempted, and failed, to convince the jury that the guard’s
behavior was outside the scope of his duties. The jury was the proper body to
decide this issue. Id. at 1074.
                                       2.
      A district court’s application of sentencing guidelines is normally reviewed
de novo; its factual findings, for clear error. E.g., United States v. Yerena-
Magana, 478 F.3d 683, 686 (5th Cir. 2007). When an objection is not preserved,
however, review is only for plain error. FED. R. CRIM. P. 52(b). Gardner did not
properly object at sentencing to the application of the enhancements at issue;
instead, for the first time on appeal, he raises this issue. Accordingly, Gardner
must show clear or obvious error that affects his substantial rights; if he does,
we retain discretion to correct the error and generally will do so only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. E.g., United States v. Olano, 507 U.S. 725, 732-41 (1993); United
States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994).
      To support his claim that his offense level should not have been enhanced,
Gardner makes no contentions, however, beyond those discussed supra,
concerning his motion for judgment of acquittal.         Gardner fails to show
reversible plain error.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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