United States v. Kareem Louis ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-4064
_____________
UNITED STATES OF AMERICA
v.
KAREEM B. LOUIS,
a/k/a Kareem Louis
Kareem Louis,
Appellant
___________
No. 13-4065
_____________
UNITED STATES OF AMERICA
v.
RAHEEM D. LOUIS,
a/k/a Raheem Louis
Raheem Louis,
Appellant
_____________
On Appeal from the District Court of the Virgin Islands, St. Croix
(D.C. Nos. 1-11-cr-00023-001 and 1-11-cr-00023-002)
District Judge: Hon. Wilma A. Lewis
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 8, 2014
Before: CHAGARES, JORDAN, and SHWARTZ, Circuit Judges
(Filed: January 8, 2015)
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OPINION*
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CHAGARES, Circuit Judge
Brothers Kareem and Raheem Louis (“Kareem” and “Raheem”) appeal their
convictions, and we have consolidated their cases. Kareem argues that the District Court
erred in finding that he was competent to stand trial and in denying his motion for
judgment of acquittal, that there was insufficient evidence to convict him, and that his
sentence was excessive. Raheem argues that there was insufficient evidence to sustain
his conviction, that the six-point enhancement to his advisory Sentencing Guidelines
level based on the use of a firearm under United States Sentencing Guidelines
(“U.S.S.G.”) § 2B3.1(b)(2)(B) was excessive, and that the loss amount calculation was
erroneous. For the reasons that follow, we will affirm.
I.
We write exclusively for the parties and therefore set forth only those facts that are
necessary to our disposition. Kareem and Raheem were charged in connection with the
theft at gunpoint of a 2010 blue Jeep Compass belonging to the victim at the Richmond
Flea Market. Specifically, Kareem was charged with Carjacking in violation of 18
U.S.C. § 2119(1) (Count One), Using and Carrying a Firearm During a Crime of
Violence in violation of 18 U.S.C. § 924(c) (Count Two), Felon in Possession of a
Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Three), Robbery in
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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the First Degree in violation of 14 V.I.C. § 1862(2) (Count Four), Unauthorized
Possession of a Firearm During a Violent Crime at the Richmond Flea Market in
violation of 14 V.I.C. § 2253(a) (Count Five), Unauthorized Possession of a Firearm at
Catherine’s Rest Supermarket in violation of the same (Count Six), Unauthorized Use of
a Vehicle in violation of 14 V.I.C. §§ 1382 and 11 (Count Seven), Possession of Stolen
Property in violation of 14 V.I.C. §§ 2101(a) and 11 (Count Eight), and Assault in the
Third Degree in violation of 14 V.I.C. § 297(2) (Count Nine). Raheem was charged with
Carjacking (Count One), Robbery in the First Degree (Count Four), Unauthorized Use of
a Vehicle (Count Seven), and Possession of Stolen Property (Count Eight).1 The
Government moved to sever their trials, see Kareem Supplemental Appendix (“Kareem
App.”) 1, and the District Court granted the motion.
At both trials, Eliza Schierloh, an employee at the flea market, testified that on the
morning of August 19, 2011, two young men approached her, and one asked for a
cigarette. She testified that the other man wore a dark wool jacket. Raheem Joint
Appendix (“Raheem App.”) 170; Kareem App. 177. She recalled that she saw the man
who asked her for a cigarette frequently, and that he lived in a white house next door to
the flea market. Raheem App. 169; Kareem App. 174-76. Virgin Islands Police
Department Officers Rolando Huertas and Orlando Benitez, Jr. testified at Raheem’s trial
that Raheem and Kareem lived in that house. Raheem App. 272, 370. The victim
testified at both trials that she went to the flea market on the morning of August 19, 2011
1
Raheem’s counsel numbers the counts differently, see Raheem Br. 3, apparently in
error.
3
to make a donation, and, after unloading the items from her car, she walked around to the
driver’s side door, where two men approached her. Raheem App. 129-30; Kareem App.
129. One put a gun to her forehead and demanded her keys, which she gave him, and she
then hid behind a dumpster while they drove off. Raheem App. 130-32; Kareem App.
129-34. She testified that her Apple iPhone was in the vehicle at the time. Raheem App.
136; Kareem App. 137. Schierloh testified that just before the vehicle peeled out of the
driveway, she saw a man in a dark jacket walk around the corner of the building toward
the loading dock. Raheem App. 172-73; Kareem App. 179. The victim told a worker at
the flea market that two men had stolen her car. Raheem App. 133; Kareem App. 134.
At both trials, the victim could not identify the defendants. Raheem App. 145; Kareem
App. 157-58. At Kareem’s trial, Schierloh testified that she did not see the person to
whom she usually gave cigarettes in the courtroom. Kareem App. 176.
The defendants’ younger brother testified that on the same morning, Kareem and
Raheem – dressed in a black winter coat – came to his father’s house in a small blue Jeep
and drove him and another brother to Catherine’s Rest Supermarket. Raheem App. 163-
68; Kareem App. 223-28. While they were in the parking lot of Catherine’s Rest
Supermarket, the victim, driving by in a different car, saw the Jeep and called the police.
Raheem App. 140-42; Kareem App. 154-55. The defendants’ brother testified that they
took the Jeep to the supermarket three times that morning, Raheem App. 209-13; Kareem
App. 225-27, and on the third trip, police officers stopped the vehicle. Raheem App. 214;
Kareem App. 227.
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Kareem ran out of the vehicle and was arrested, Raheem App. 191, 226; Kareem
App. 233, 291, while Raheem drove the brothers back to their father’s house. Raheem
App. 192; Kareem App. 228-29. Raheem’s brother testified at Raheem’s trial that, while
driving back, Raheem told him he was sorry for getting his brothers “in this mess.”
Raheem App. 194. The police found a gun near a dumpster at the shopping center where
they arrested Kareem, and a police officer testified that he saw Kareem remove
something from his waist and hide behind the dumpster during the chase. Kareem App.
289, 291. The victim testified that the recovered weapon looked like the one the men had
used when they stole her Jeep. Raheem App. 132. Raheem was arrested on September 1,
2011 at his house, where the police found an Apple iPhone, which he said belonged to
“the owner of the vehicle which they stole, the blue Compass.” Id. at 379. When the
police found the vehicle, it contained a “black thick heavy coat . . . .” Id. at 93.
An officer testified at Kareem’s trial that while Kareem was in the holding cell
after his arrest, he “was having a tirade, an outburst, making a lot of different comments,
and speaking openly about the robbery, and a vehicle . . . .” Kareem Joint Appendix
(“Kareem Joint App.”) 67. According to the officer’s testimony, Kareem “said that they
stole a Jeep.” Id. at 69. The officer testified that Kareem “spoke about a gun freely. He
said when the police start[ed] chasing him, he pull[ed] the gun from his waist, and
thr[e]w it behind the dumpster.” Id. at 70. The officer testified that he had never seen
someone in custody act the way Kareem was acting, and that he “appears to not be
normal.” Id. at 71.
5
Kareem argued that he was not competent to stand trial, and the District Court
conducted a competency hearing in which Kareem introduced testimony of expert
Ramona Moss, Ph.D., who submitted a report saying that “it is questionable as to whether
or not Mr. Louis” was competent, because “he does not have the capacity to appropriately
participate in his defense, does not always have a reasonable understanding of all of the
proceedings.” Kareem Joint App. 43. The District Court noted that “[a]t the hearing . . .
upon cross-examination, Dr. Moss clarified her statement, testifying that she believes
[Kareem] is competent to stand trial.” Id. at 47. The Government’s psychological expert,
Derek Spencer, M.D., found Kareem competent to stand trial. The District Court found
that Kareem was competent, and his case proceeded to trial.
Kareem moved for Judgment of Acquittal at the close of the Government’s case,
arguing that the Government had not established that Kareem was at the Richmond Flea
Market. The District Court denied the motion, and Kareem renewed it at the close of
trial, when it was again denied.
After he was convicted at trial,2 Kareem received concurrent sentences for Counts
One, Four, Five, Six, and Seven, of which 180 months of imprisonment was the longest,
see Kareem Joint App. 190, and that sentence was to run consecutively with the sentence
for Count Two of 84 months of imprisonment, for a total of 264 months of imprisonment.
Counts Eight and Nine were stayed pursuant to 14 V.I.C. § 104. Id. Kareem thus
received a total sentence of 264 months. Id. at 190-91. Raheem received concurrent
sentences for Counts One, Four, and Seven, the longest of which was 140 months, and
2
Kareem was convicted of all counts except for Count Three.
6
the District Court stayed the sentence for Count Eight in accordance with 14 V.I.C. §
104. Raheem App. 10-11. Kareem and Raheem timely appealed.
II.
The District Court of the Virgin Islands exercised jurisdiction pursuant to 48
U.S.C. § 1612(a) and (c) and 18 U.S.C. § 3231. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We review a District Court’s factual decision that a defendant is competent to
stand trial for clear error, United States v. Jones, 336 F.3d 245, 256 (3d Cir. 2003),
reversing that determination only if it was “completely devoid of a credible evidentiary
basis or bears no rational relationship to the supporting data.” Interfaith Cmty. Org. v.
Honeywell Int’l, Inc., 399 F.3d 248, 254 (3d Cir. 2005) (quotation marks omitted).
With regard to the District Court’s denial of a motion for judgment of acquittal
based on insufficiency of the evidence, we exercise plenary review, and so, like the
District Court, we must “examine the totality of the evidence, both direct and
circumstantial, and interpret the evidence in the light most favorable to the government as
the verdict winner.” United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009)
(quotation marks omitted). In assessing both the District Court’s denial of Kareem’s
motion for judgment of acquittal and both appellants’ challenges to the sufficiency of the
evidence, we uphold the jury’s verdict if “there is substantial evidence from which a
rational trier of fact could find the essential elements of the crime beyond a reasonable
doubt.” Id. (quotation marks omitted). As we have emphasized, “[t]he burden on a
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defendant who raises a challenge to the sufficiency of the evidence is extremely high.”
United States v. Iglesias, 535 F.3d 150, 155 (3d Cir. 2008) (quotation marks omitted).
We review the District Court’s imposition of consecutive sentences for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 46 (2007). Moreover, where a
defendant does not object to a sentence at the time of sentencing, we review for plain
error, whereby we may grant relief only if we conclude that: (1) there was an error, (2)
the error was clear or obvious, and (3) the error affected the appellant’s substantial rights.
United States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013). If those three conditions are
met, we then have discretion to remedy the error, and we exercise this discretion only if
the error “‘seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’” Id. (quoting Puckett v. United States, 556 U.S. 129, 135 (2009))
(alteration omitted); see also United States v. Watson, 482 F.3d 269, 274 (3d Cir. 2007).
With respect to the Raheem’s argument that the District Court erred in adding a six level
enhancement to his advisory Guidelines calculation under U.S.S.G. § 2B3.1(b)(2)(B), we
review findings of fact relevant to that determination for clear error, and we exercise
plenary review over the District Court’s interpretation of the Guidelines. United States v.
Grier, 475 F.3d 556, 570 (3d Cir. 2007). We review the District Court’s factual findings
as to loss amount for clear error. United States v. Vitillo, 490 F.3d 314, 330 (3d Cir.
2007).
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III.
A.
We consider first Kareem’s contention that the District Court erred in determining
he was competent to stand trial. A defendant is competent to stand trial if he has
“sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding” and if he has a “rational as well as factual understanding of the
proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960); see also
Hull v. Kyler, 190 F.3d 88, 105 (3d Cir. 1999). The Government has the burden of
proving a defendant’s competency by a preponderance of the evidence at a competency
hearing. United States v. Velasquez, 885 F.2d 1076, 1089 (3d Cir. 1989). In light of
both Dr. Spencer’s and Dr. Moss’s testimony at the hearing here, the District Court’s
determination that Kareem was competent was not “completely devoid of a credible
evidentiary basis,” nor did it lack a “rational relationship to the supporting data.”
Interfaith Cmty. Org., 399 F.3d at 254.
B.
We turn to Kareem’s argument that the evidence was insufficient to sustain his
conviction and so the District Court erred in denying his motion for judgment as a matter
of law. Kareem bases his insufficiency argument on the fact that though the victim and
Schierloh testified that they had seen two men face-to-face on the morning of August 19,
2011, neither person identified Kareem as one of the men they saw. Kareem Br. 13. He
argues further that the Government failed to show that the gun recovered at Catherine’s
Rest Supermarket was the same gun used in the robbery, and that the Government failed
9
to show that Kareem had a weapon at the Richmond Flea Market. Id. at 13-14. Kareem
thus argues that the evidence was insufficient to show that he was at the flea market, that
he had a gun, or that he stole the victim’s car.
The Government counters that in light of the testimony of Schierloh, the victim,
Kareem’s brother, and Kareem’s own confession, viewing all evidence in the light most
favorable to the Government, there is substantial evidence from which a rational finder of
fact could find each element beyond a reasonable doubt. We agree. Particularly in light
of Kareem’s confession that he stole the vehicle and had a gun while at Catherine’s Rest
Supermarket, there was sufficient evidence to sustain Kareem’s conviction, and the
District Court properly denied Kareem’s motion for a judgment of acquittal.
C.
With respect to Raheem’s challenge to the sufficiency of the evidence, Raheem
argues first that there was insufficient evidence to place him at the flea market, and that
even if the evidence was sufficient to show that he was there, it was insufficient to show
that he aided and abetted a carjacking and robbery.
We agree with the District Court that there was sufficient evidence to sustain
Raheem’s conviction. As discussed above, the Government introduced evidence that two
men, one of whom Schierloh recognized as living in the white house next door to the flea
market, asked Schierloh for a cigarette on the morning of the incident, and that the other
man was wearing a dark coat. Just before the stolen vehicle left the parking lot, Schierloh
reported seeing a man in a dark jacket in the parking lot again. The victim testified that
two men robbed her, and that one was wearing a dark jacket. The defendants’ brother
10
testified that Kareem and Raheem picked him and another brother up in a blue Jeep,
made several trips to a grocery store, and then fled when the police confronted them.
Moreover, a police officer testified that when Raheem was arrested, Raheem said that the
iPhone the police recovered belonged to the owner of the vehicle they stole.
From this evidence, a rational finder of fact could conclude beyond a reasonable
doubt that Raheem was with Kareem at the flea market when the victim’s vehicle was
stolen. With regard to Raheem’s argument that there was insufficient evidence to show
that he aided and abetted a carjacking and a robbery, we note that in order to show aiding
and abetting, the Government must introduce sufficient evidence to prove beyond a
reasonable doubt that “the underlying crime occurred,” that “the defendant knew of the
crime,” and that he “had the specific intent of facilitating” it. United States v. Gordon,
290 F.3d 539, 547 (3d Cir. 2002) (quotation markets omitted). To prove the latter
element, “the defendant must participate in the criminal enterprise. Neither mere
presence at the scene of the crime nor mere knowledge of the crime is sufficient to
support a conviction,” instead, “the Government must prove the defendant associated
himself with the venture and sought by his actions to make it succeed.” United States v.
Mercado, 610 F.3d 841, 846 (3d Cir. 2010) (quotation marks and citations omitted).
Direct evidence is not necessary: “An aiding and abetting conviction can be supported
solely with circumstantial evidence as long as there is a logical and convincing
connection between the facts established and the conclusion inferred.” Id. (quotation
marks omitted).
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The specific intent required under the federal carjacking statute, 18 U.S.C. § 2119,
is “satisfied when the Government proves that at the moment the defendant demanded or
took control over the driver’s automobile the defendant possessed the intent to seriously
harm or kill the driver if necessary to steal the car . . . .” Holloway v. United States, 526
U.S. 1, 12 (1999). In order to prove aiding and abetting for robbery under 14 V.I.C. §
1862(2), the Government was required to prove that Raheem acted with the specific
intent to permanently deprive a rightful owner of his property. See Gov’t of V.I. v.
Carmona, 422 F.2d 95, 98 (3d Cir. 1970).
The evidence described above was sufficient to allow a rational finder of fact to
conclude beyond a reasonable doubt that the carjacking and robbery occurred, that
Raheem knew of the crimes, and that he had the specific intent to facilitate them. There
was evidence from which the jury could have inferred that the brothers left a house they
shared, walked up to the victim together, Kareem held a gun to her head, both brothers
then drove off in the car, and Raheem drove the vehicle around that day and for several
days after, until he was arrested. There is a “logical and convincing connection” between
this circumstantial evidence and the conclusion that Raheem had the specific intent to
deprive the victim of the vehicle permanently and that at the moment they took the car,
Raheem shared Kareem’s intent to seriously harm or kill her if she did not comply.
Accordingly, Raheem’s insufficiency argument also fails.
D.
We next consider Kareem’s argument that the District Court imposed an excessive
sentence on him. Kareem argues that the District Court erred in imposing consecutive
12
sentences for Count Two and Count Five, and that it “should have used its discretion to
sentence [him] to concurrent sentences.” Kareem Br. 15. He contends that the District
Court violated his Eighth Amendment rights by imposing consecutive sentences.
Because Kareem did not object at trial, we review for plain error. Under Count Two,
Kareem was convicted of using and carrying a firearm during and in relation to a crime of
violence pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). In Count Five, he was convicted of
unauthorized possession of a firearm during a violent crime at the flea market in violation
of 14 V.I.C. § 2253(a). A conviction under 18 U.S.C. § 924(c)(1)(A)(ii) results in a
mandatory minimum term of seven years, and section 924(c)(1)(D)(ii) of the same title
provides that “no term of imprisonment imposed on a person under this subsection shall
run concurrently with any other term of imprisonment imposed on the person . . . .” See
also United States v. Abbott, 574 F.3d 203, 211 n.5 (3d Cir. 2009) (18 U.S.C. § 924(c)
contains a “mandate that § 924(c) sentences must run consecutively to all other
sentences.” (emphasis in original)). In light of this clear statutory direction, the District
Court did not commit plain error by imposing consecutive sentences. This case is not the
“extraordinary case” in which a sentence for a term of years violates the Eighth
Amendment. United States v. Walker, 473 F.3d 71, 79 (3d Cir. 2007).
Kareem argues without elaboration that he “was not awarded credits for the 24
months that he had already served.” Kareem Br. 15. The Government does not respond
to this argument, but we cannot grant Kareem relief on this basis, because it is the Bureau
of Prisons, and not the District Court, that determines the credit to which Kareem is
entitled under 18 U.S.C. § 3585. See United States v. Wilson, 503 U.S. 329, 334 (1992).
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E.
We turn to Raheem’s argument that he should not have received a six-level
enhancement under U.S.S.G. § 2B3.1(b)(2)(B). Raheem withdrew his objection to this
enhancement at sentencing, see Raheem App. 563, and so we review for clear error.
Section 2B3.1(b)(2)(B) provides for a six level enhancement if “a firearm was otherwise
used,” where “otherwise used” means that “the conduct did not amount to the discharge
of a firearm but was more than brandishing, displaying, or possessing a firearm or other
dangerous weapon.” See U.S.S.G. § 2B3.1(b)(2)(B) cmt. n. 1; § 1B1.1 Commentary,
Application Note 1(I). The District Court imposed this enhancement because Kareem
held the gun to the victim’s head while stealing her car.
Under U.S.S.G. § 1B1.2, a defendant may receive an enhancement for any
behavior of co-defendants that is “reasonably foreseeable . . . in the furtherance of the
jointly undertaken criminal activity.” Raheem was convicted of carjacking, and the
District Court was empowered to consider the evidence suggesting that it was reasonably
foreseeable to Raheem that Kareem, his brother and housemate, would carry a gun to
steal the vehicle and that he would use it to threaten the victim while carrying out the
crime. We find no error with the application of this enhancement.
F.
Finally, we address Raheem’s contention that the District Court erred in
calculating the loss amount by using the Kelley Blue Book value of the Jeep Compass,
14
which was introduced in the pre-sentence investigation report but not at trial. We review
the District Court’s factual findings as to loss amount for clear error. “The Government
bears the burden of establishing, by a preponderance of the evidence, the amount of the
loss for purposes of the sentencing enhancement.” United States v. Jimenez, 513 F.3d
62, 86 (3d Cir. 2008). Once the Government makes a prima facie case for the loss
amount, though, “the burden of production shifts to the defendant to provide evidence
that the Government’s evidence is incomplete or inaccurate.” Id.Here, the victim testified that the 2010 Jeep Compass had been new when she
bought it, and the crime took place in 2011. The Government contends that this evidence
was sufficient to meet its burden of making a prima facie case as to value. In the pre-
sentence investigation report, the U.S. Probation Office reported the Kelley Blue Book
value of the vehicle as $16,148. Raheem objected to the use of the Kelley Blue Book at
the time of sentencing, not on the ground that the Government had failed to prove the
value, but on the ground that “[t]he Blue Book offers several values depending on the
condition of the vehicle, and the probation officer had to make a determination as to the
condition of the vehicle in order to rely upon the value given.” Raheem App. 647. The
District Court rejected this argument, reasoning that “the Probation Office used the
lowest value provided by Kelley Blue Book in drafting the presentence investigation
report,” and so, if there was any deviation from the actual value of the victim’s car, it was
that the value the District Court used was too low. Id. at 565. Raheem had the
opportunity to object to the loss amount, and the District Court rejected his objection.
The record showed that the defendants had stolen a one-year-old Jeep Compass, and it
15
was not error (much less clear error) for the District Court to find that the value of the
vehicle was more than $10,000.
IV.
For the foregoing reasons, we will affirm the judgments of the District Court.
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