United States v. Earnest

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 30, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20270
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EARNEST,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-401
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Before GARZA DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Earnest, federal prisoner # 03721-025, appeals his
conviction for assault of a federal correctional officer. He
argues that the district court abused its discretion in refusing
to instruct the jury on self-defense.
Earnest, however, was not entitled to a self-defense
instruction given that there was insufficient evidence for a
reasonable jury to find in his favor. See United States v.
Branch, 91 F.3d 699, 711-12 (5th Cir. 1996). The evidence

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No. 04-20270
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supports a conclusion that Earnest resorted to excessive force in
response to a use of force that was not excessive, and,
therefore, the affirmative defense of self defense was
unavailable. See Branch, 91 F.3d at 714-15; United States v.
Ochoa, 526 F.2d 1278, 1282 (5th Cir. 1976). Earnest’s testimony
that he submitted to restraints is but a “single item of evidence
overwhelmed by other evidence in the record” and is therefore
insufficient to create a factual issue for the jury entitling him
to the requested instruction. See Branch, 91 F.3d at 712-13.
AFFIRMED.

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