                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       September 29, 2005

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                               No. 05-40171
                             Summary Calendar



UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

versus

VINCENT LAMAR SMITH,

                                            Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                         USDC No. 1:04-CR-77-1
                          --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Vincent Lamar Smith (Smith) appeals his jury conviction and

sentence for assaulting a federal officer in violation of 18 U.S.C.

§ 111.

     Smith contends that the evidence at trial was insufficient to

sustain the jury’s verdict.          Specifically, he argues that the

Government     failed   to   prove   that     he   intentionally     assaulted

Correctional Officer Timothy LaBorde (Officer LaBorde).




     *
       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this opinion should not be published and is not precedent except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. 05-40171
                                      -2-

      Viewing the evidence in the light most favorable to the

verdict, the evidence was sufficient to establish that Smith

intentionally assaulted Officer LaBorde.              Officer LaBorde, Senior

Officer     Specialist      David     Chapman       (Officer     Chapman),        and

Correctional Officer Scott Tommey (Officer Tommey) testified that

Smith was upset with the outcome of the disciplinary hearing.

Officer LaBorde testified that after he removed one of the cuffs,

Smith immediately spun around “so he could get more power into it”

and started jerking the handcuffs away from him.                Officers Chapman

and   Tommey    also    testified     that   they   saw    Smith   jerk    Officer

LaBorde’s hand into the food slot.                  Finally, Officer LaBorde

testified    that   he    did   not   believe   that      the   incident    was    an

accident.      Therefore, the evidence was sufficient to sustain the

jury’s verdict.        See United States v. Moore, 958 F.2d 646, 648-49

(5th Cir. 1992).

      Smith also contends that the district court violated his Sixth

Amendment right to a fair trial when it excused a juror for cause

when no bias on the part of that juror was demonstrated.                   Smith is

not entitled to any relief on this claim because he does not

challenge the impartiality of the panel that actually judged his

case.   See United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222

(5th Cir. 1994).

      Finally, Smith contends that his sentence is unconstitutional

in light of Blakely v. Washington, 542 U.S. 296 (2004), and United

States v. Booker, 125 S. Ct. 738 (2005).                   Specifically, Smith
                           No. 05-40171
                                -3-

argues that the district court violated his Sixth Amendment right

to a jury trial when it enhanced his sentence based on the district

judge’s finding that he was a career offender because this fact was

neither admitted by him nor found by a jury beyond a reasonable

doubt.

     Smith was sentenced after the Court’s decision in Booker and

pursuant to an advisory Guidelines scheme.     Thus, the district

court’s determination, under an advisory Guidelines scheme, that

Smith was a career offender did not violate his Sixth Amendment

right to a jury trial.   See Booker, 125 S. Ct. at 750, 764.

     Accordingly, the district court’s judgment is AFFIRMED.
