United States v. Nester Leon , 713 F. App'x 948 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15524
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00238-JA-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NESTER LEON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 16, 2017)
Before ED CARNES, Chief Judge, JULIE CARNES, and JILL PRYOR, Circuit
Judges.
PER CURIAM:
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A grand jury charged Nester Leon with carjacking, 18 U.S.C. § 2119, and
possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c).
Leon pleaded not guilty and proceeded to trial. At the close of the government’s
evidence, Leon moved for judgment of acquittal. The district court denied his
motion and the jury found Leon guilty of both counts. Leon contends that the
district court improperly denied his motion for judgment of acquittal because there
is insufficient evidence to support his carjacking conviction.
I.
Leon and his victim, Lester Perez, were not strangers. About two weeks
before Leon stole Perez’s car, Perez spotted Leon outside a nightclub and thought
he recognized him from high school. Perez invited Leon to his home that night
where the two rekindled their relationship. Over the following days, Leon and
Perez exchanged text messages. On the night of the incident giving rise to this
case, Perez picked up Leon and the two drove to a credit union where Perez parked
his car and walked to the ATM to withdraw money.
While Perez was using the ATM, Leon slid into the driver’s seat, put the car
in reverse, and accelerated. Perez heard his car reversing, turned around, saw Leon
in the driver’s seat, and ran to the passenger side of the car. By the time Perez
reached the passenger-side door, Leon had stopped the car to switch from reverse
to drive. Perez exclaimed, “stop, stop, what are you doing,” at which point Leon
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pointed a gun at Perez’s face and fired a bullet through the open passenger-side
window. The shot missed and Leon sped away. Perez phoned 911 from a nearby
store and, shortly thereafter, police located his car and apprehended Leon.
II.
To sustain a conviction for carjacking under 18 U.S.C. § 2119, “the
government must prove that the defendant (1) with intent to cause death or serious
bodily harm (2) took a motor vehicle (3) that had been transported, shipped or
received in interstate or foreign commerce (4) from the person or presence of
another (5) by force and violence or intimidation.” United States v. Diaz, 248 F.3d
1065, 1096 (11th Cir. 2001). Leon argues that the record contains insufficient
evidence as to the first and fifth elements because he did not have the intent to kill
or seriously harm Perez when he took his car and because he did not use force and
violence or intimidation to take the car.
A.
Leon did not argue to the district court that there is insufficient evidence to
support a finding of intent. As a result, we review that argument only for plain
error. See United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir. 1999)
(“Since the record does not show that Appellant raised this issue to the district
court, our review of the district court’s decision to deny the motion for judgment of
acquittal on that basis is only for ‘plain error.’”). “We will reverse a district
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court’s decision under the plain error rule only if there is: (1) error, (2) that is
plain, and (3) that affects substantial rights, and if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Doyle, 857 F.3d 1115, 1118 (11th Cir. 2017) (quotation marks omitted).
Leon’s intent must “be judged objectively from the visible conduct of the
actor and what one in the position of the victim might reasonably conclude.”
United States v. Fulford, 267 F.3d 1241, 1244 (11th Cir. 2001). Judged from that
perspective, his argument fails. The court did not err — plainly or otherwise — by
concluding that Leon was willing to kill or seriously harm Perez if necessary to
take his car when he pointed a gun at Perez’s face and fired before speeding away.
B.
Leon did argue to the district court that the government failed to show he
used force and violence or intimidation to take Perez’s car. As a result, we review
de novo whether there is sufficient evidence to support the jury’s verdict on that
basis. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). We must
view the evidence in the light most favorable to the government and draw all
reasonable factual inferences and credibility determinations in favor of the verdict.
Id. The evidence supports a conviction if a reasonable trier of fact could find that
the evidence established guilt beyond a reasonable doubt. Id. at 1285.
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Leon argues that he took Perez’s car by stealth — not by “force and violence
or intimidation” — because he acquired control of it by sliding into the driver’s
seat while an unwitting Perez used the ATM. Leon does not dispute using force
and violence or intimidation by pointing and firing the gun at Perez, but asserts that
he did so only after acquiring control of the car. Because he used force and
violence or intimidation to retain control of the car, but not to take it, he argues that
he did not commit the federal crime of carjacking. By contrast, the government
argues that the taking was ongoing when Leon pointed and fired the gun at Perez
because that was how he “secured dominion” over the car. To evaluate those
arguments, we must determine precisely when Leon “took” Perez’s car.
We have not defined “taking” for § 2119 purposes, but our sister circuits
have defined it by reference to the crime of robbery at common law. See United
States v. Petruk, 781 F.3d 438, 442 (8th Cir. 2015) (noting that “taking” is “a
common law term of art derived from the law of robbery”); United States v.
Figueroa-Cartagena, 612 F.3d 69, 78 (1st Cir. 2010) (same); United States v.
DeLaCorte, 113 F.3d 154, 156 (9th Cir. 1997) (“We conclude that 18 U.S.C.
§ 2119 . . . incorporates the understanding of that term as developed under the
common law and in other federal robbery statutes.”); see also United States v.
Wright, 246 F.3d 1123, 1126 (8th Cir. 2001) (defining “taking” as “the acquisition
by the robber of possession, dominion or control of the property for some period of
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time”); United States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996) (same). At
common law “taking” was a term of art that referred to the act of “securing
dominion” over something. See Figueroa-Cartagena, 612 F.3d at 78 (citing 2
Wayne R. LaFave, Substantive Criminal Law § 19.3 (2d ed. 2003)).
Viewing the evidence in the light most favorable to the government, the
record supports Leon’s conviction. When Leon shot at Perez, Perez was near the
passenger-side door of the car. Perez’s proximity to the car coupled with the fact
that Leon felt compelled to point and fire the gun at Perez could lead a reasonable
trier of fact to conclude that Leon had not yet “secured dominion” over the car. If
he had secured dominion over it, there would have been no need for him to fire at
Perez. As a result, the evidence supports a conclusion that the taking was ongoing
at the time Leon used force and that Leon “took [Perez’s car] . . . by force and
violence or intimidation.” 18 U.S.C. § 2119.
Because a reasonable jury could find that Leon took Perez’s car by force and
violence or intimidation with intent to cause death or serious bodily harm, there is
sufficient evidence to support Leon’s carjacking conviction. Diaz, 248 F.3d at
1096. Leon does not contest possessing a gun during the incident. As a result,
there is sufficient evidence to support Leon’s conviction for possession of a
firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c). United
States v. Moore, 43 F.3d 568, 572 (11th Cir. 1994) (“[A]ny defendant who
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possesses a firearm within the meaning of section 2119 necessarily uses or carries
it as defined in § 924(c)(1).”).
AFFIRMED.
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