                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     July 14, 2008
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 08-1014
 v.                                           (D.C. No. 06-CR-00469-WDM-1)
                                                         (D. Colo.)
 HOWARD DAVIS,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before TACHA, KELLY, and McCONNELL, Circuit Judges. **


      Defendant-Appellant Howard Davis appeals his conviction on two counts of

assaulting or impeding a federal officer in violation of 18 U.S.C. §§ 111(a)(1) and

(b) arising from an altercation with two corrections officers at the United States

Penitentiary at Florence, CO on October 19, 2005. Mr. Davis was subsequently

sentenced to forty-two months’ imprisonment to be served consecutively to his


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
current imprisonment followed by three years’ supervised release, but does not

challenge his sentence. Mr. Davis argues that the district court provided an

incorrect self-defense jury instruction and that he should have been advised prior

to testifying on his own behalf that his sentence could be enhanced for obstruction

of justice under U.S.S.G. § 3C1.1 based upon his testimony, even though that

enhancement was not included in the district court’s calculation or consideration

of his sentence. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      The facts are familiar to the parties and we need not restate them here in

detail. Mr. Davis claimed at trial that he was defending himself from what he

reasonably perceived to be a threat of excessive force from the corrections

officers. He requested the Tenth Circuit pattern jury instruction for self-defense

but the district court instead provided the jury with an instruction similar to the

one upheld in United States v. Jones, 254 F. App’x 711 (10th Cir. November 7,

2007) (unpublished). Mr. Davis’s trial counsel simply stated: “[M]y objection to

the Court’s instruction is just that I tendered a self-defense instruction, and I

would request that the Court give just the general Tenth Circuit pattern instruction

that I tendered. So that is my objection.” Aplt. App. at 119. The district court

ultimately provided an instruction that included the following language:

“Defendant asserts that the act for which he is charged in Counts One and Two of

the Indictment were taken in self defense against the excessive use of force by a

corrections’ [sic] officer. An inmate has the right to self defense against the use

                                          -2-
of excessive force by a corrections’ [sic] officer that causes or threatens to cause

serious bodily injury to the inmate.” II Aplee. Supp. App. at 550. Mr. Davis also

testified on his own behalf without any inquiry or warning by the district court

concerning his decision to waive his Fifth Amendment rights.

       A district court’s refusal to give a particular jury instruction requested by a

defendant is reviewed for an abuse of discretion. United States v. Moran, 503

F.3d 1135, 1146 (10th Cir. 2007). As part of that review, we “consider the

instructions as a whole de novo to determine whether they accurately informed

the jury of the governing law.” United States v. Triana, 477 F.3d 1189, 1195

(10th Cir. 2007) (quotation omitted).

       Mr. Davis contends that the instruction provided in his case contains no

element (unlike the Tenth Circuit pattern instruction) which would allow the jury

to consider his subjective perception of the situation. The Tenth Circuit pattern

instruction Mr. Davis requested at trial for self-defense or defense of another

states that

       the right to use force in such a defense is limited to using only as
       much force as reasonably appears to be necessary under the
       circumstances. To find the defendant guilty of the crime charged in
       the indictment, you must be convinced that the government has
       proved beyond a reasonable doubt . . . it was not reasonable for the
       defendant to think that the force he used was necessary to defend
       himself or another person against an immediate threat.

Aplt. App. at 15 (Defendant’s Proposed Jury Instructions); 10th Cir. Crim. Pattern

Instruction 1.28 (2005). It is the subjective component of allowing the jury to

                                          -3-
find that he reasonably believed he was in peril, Mr. Davis asserts, that should

have been included in the instructions to the jury.

      We noted in Jones that “[w]e have not had occasion to address the

application of self-defense to a charge under 18 U.S.C. § 111 involving a fight

between guards and a prisoner, let alone the parameters of such a defense” and

“we merely assume[d] without deciding that such a defense exists.” 254 F. App’x

at 717. We clearly rejected in Jones, which we find persuasive here, “the

proposition that the ordinary rules of self-defense apply to resistance to the

unlawful or excessive use of force by prison guards.” Id. at 718. Mr. Davis only

requested the Tenth Circuit pattern instruction and did not specifically request the

addition of any “subjective” language to the instruction the district court

ultimately provided to the jury. Aplt. App. at 15, 119. The district court’s refusal

to give the pattern instruction was not an abuse of discretion for, as pointed out

by Mr. Davis, “this Court has already limited self defense in cases involving

inmate assaults on guards ‘to only those situations where the inmate reasonably

fears imminent serious bodily harm or death’”—an element not included in the

Tenth Circuit pattern instruction he tendered. Aplt. Br. at 13 (quoting Jones, 254

F. App’x at 723); see Aplt. App. at 15 (Defendant’s Proposed Jury Instructions).

      Moreover, in the absence of any plain-error argument by Mr. Davis, we

refuse to consider his more specific argument (that the jury instruction lacked a

subjective gloss) because Mr. Davis failed to object on this basis. See Fed R.

                                         -4-
Crim. P. 30(d); Jones, 254 F. App’x at 716 n.3. A generalized objection to an

instruction is insufficient to preserve a specific objection on appeal. See United

States v. Bornfield, 184 F.3d 1144, 1146 n.2 (10th Cir. 1999).

      Mr. Davis’s next argument is that he should have been apprised of the

possibility of his sentence being enhanced for obstruction of justice under

U.S.S.G. § 3C1.1 before he took the stand. Mr. Davis did not raise this point at

trial, so our review would be for plain error. See United States v. Zuniga-Soto,

527 F.3d 1110, ____ (10th Cir. 2008) (no pagination). Suffice it to say that the

district court declined to apply the enhancement, Aplt. App. at 191, and Mr. Davis

acknowledges that his argument may be moot. Aplt. Reply Br. at 5. We are

unpersuaded that an “increased risk” faced by Mr. Davis at sentencing constitutes

prejudice. Aplt. Br. at 12. The alleged error had no affect on Mr. Davis’s

sentence and cannot be plain error because it does not affect substantial rights.

See United States v. Darden, 70 F.3d 1507, 1548 n. 17 (8th Cir. 1995) (declining

to review argument that would not affect sentence).

      AFFIRMED.

                                       Entered for the Court,


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                        -5-
