United States v. Demery Mclymore ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4460
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMERY BERNARD MCLYMORE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:18-cr-00148-D-1)
Submitted: February 25, 2022 Decided: March 2, 2022
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Joshua B. Howard, GAMMON, HOWARD & ZESZOTARSKI, PLLC,
Raleigh, North Carolina, for Appellant. G. Norman Acker, III, Acting United States
Attorney, Jennifer P. May-Parker, Assistant United States Attorney, David A. Bragdon,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demery Bernard Mclymore appeals his convictions for carjacking, in violation of
18 U.S.C. § 2119, and brandishing a firearm during, in relation to, and in furtherance of
the carjacking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). ∗ On appeal, Mclymore’s sole
challenge is to the sufficiency of the evidence to support his carjacking and attendant
§ 924(c) convictions. Specifically, he argues that the evidence adduced at trial was
insufficient to establish that he had the requisite intent to kill or seriously harm the victims
when he took control of the car. He further argues that, because the carjacking conviction
was not supported by sufficient evidence, it cannot serve as a predicate crime of violence
and, therefore, the § 924(c)(1)(A)(ii) conviction must also be vacated. We affirm.
We review de novo a challenge to the sufficiency of the evidence. United States v.
Bran, 776 F.3d 276, 279 (4th Cir. 2015). In assessing the sufficiency of the evidence, we
determine whether there is substantial evidence to support a conviction when viewed in the
light most favorable to the Government. United States v. Haas, 986 F.3d 467, 477 (4th
Cir.), cert. denied, 142 S. Ct. 292 (2021). “Substantial evidence is evidence that a
reasonable finder of fact could accept as adequate and sufficient to support a conclusion of
a defendant’s guilt beyond a reasonable doubt.” Id. (cleaned up). However, “[i]t is the
responsibility of the jury, not ours, to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” United
∗
Mclymore does not challenge his convictions for possession of a stolen firearm, in
violation of 18 U.S.C. §§ 922(j), 924, and being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924.
2
States v. Robinson, 855 F.3d 265, 268 (4th Cir. 2017) (internal quotation marks omitted).
“A defendant who brings a sufficiency challenge bears a heavy burden, as appellate
reversal on grounds of insufficient evidence is confined to cases where the prosecution’s
failure is clear.” United States v. Savage, 885 F.3d 212, 219 (4th Cir. 2018) (internal
quotation marks omitted).
To prove carjacking under 18 U.S.C. § 2119, the Government must establish that
Mclymore “(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. Small, 944 F.3d 490, 498 (4th Cir. 2019) (internal quotation marks omitted).
Mclymore only disputes the sufficiency of the evidence for the first element, namely, that
he acted with intent to cause death or serious bodily harm when he took possession of the
vehicle. In particular, Mclymore argues that his actions established the kind of reckless
desperation and empty threats that do not constitute carjacking, citing United States v.
Bailey, 819 F.3d 92 (4th Cir. 2016), and that the victims’ insouciance after the incident
supports his argument. He contends that, although he made threats and committed violent
acts before and after taking control of the car, there is no evidence that he intended to kill
or seriously harm the driver at the moment he demanded a ride. The Government counters
that the evidence showing that Mclymore brandished a gun, threatened the victims, and
physically assaulted them, sufficiently supports the jury’s verdict.
“Section 2119’s mens rea component, a specific intent requirement, is satisfied
whether the defendant unconditionally or conditionally intended to cause death or serious
3
bodily harm during a carjacking.” Small, 944 F.3d at 498 (cleaned up). To satisfy this
requirement, the Government must show “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.’” Id. (quoting Holloway v. United
States, 526 U.S. 1, 12 (1999)) (cleaned up). A defendant’s empty threat or intimidating
bluff during the theft is insufficient to establish specific intent for carjacking, id., but where
defendants “threatened their victims with actual weapons, made affirmative threatening
statements, and/or physically assaulted their victims,” the evidence supports a finding of
such intent, Bailey, 819 F.3d at 97; see Small, 944 F.3d at 499 (finding sufficient evidence
of intent for carjacking when defendant wielded a gun and pointed it at victim while
demanding car keys and other possessions); Robinson, 855 F.3d at 269 (finding sufficient
evidence of intent for carjacking when defendant pointed gun at victim and made verbal
death threat); United States v. Foster, 507 F.3d 233, 247 (4th Cir. 2007) (finding sufficient
evidence of intent for carjacking when defendant held gun to victim’s head and ordered
victim out of car). Viewing the evidence in the light most favorable to the Government,
see Haas, 986 F.3d at 477, and considering the relevant authorities, we conclude that there
is substantial evidence from which the jury could infer Mclymore’s intent to kill or cause
serious harm when he took control of the car.
Mclymore also argues that because there was insufficient evidence to sustain his
carjacking conviction, it cannot serve as a predicate crime of violence to support his
18 U.S.C. § 924(c)(1)(A)(ii) conviction. Because there was sufficient evidence to support
Mclymore’s carjacking conviction and carjacking is a crime of violence, see United States
4
v. Evans, 848 F.3d 242, 244 (4th Cir. 2017) (holding federal carjacking is crime of violence
under § 924(c)’s force clause), the evidence was also sufficient to support Mclymore’s
dependent § 924(c)(1)(A)(ii) conviction.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
5