United States v. Cline

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Cline No. 02-5966
ELECTRONIC CITATION: 2004 FED App. 0088P (6th Cir.)File Name: 04a0088p.06 Charles P. Wisdom, Jr., Kenneth R. Taylor, Marianna Jackson
Clay, ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS
_________________
FOR THE SIXTH CIRCUIT
_________________ OPINION
_________________
UNITED STATES OF AMERICA , X
ALDRICH, District Judge. This case concerns the
Plaintiff-Appellee, - conviction and sentencing of a Kentucky man for carjacking,
-
- No. 02-5966 possession of firearms while subject to a domestic violence
v. - order, and carrying a firearm during a crime of violence.
> Because the district court did not abuse its discretion in any
, of the matters raised by the appellant, we AFFIRM its
PHILLIP CLINE , -
Defendant-Appellant. - decision.
N I. Background
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville. Defendant Phillip Cline (hereinafter “Cline”) has a long
No. 01-00056—Danny C. Reeves, District Judge. history of domestic violence. His wife, Jeana Marcum
(hereinafter “Marcum”), has sought protective orders against
Submitted: October 24, 2003 him on at least four occasions, and the pair’s last attempt at
reconciliation led to the incidents at issue in this case.
Decided and Filed: March 26, 2004
In April of 2001, renewed contact between husband and
Before: KENNEDY and GIBBONS, Circuit Judges; wife led Marcum to seek an amendment to the domestic
ALDRICH, District Judge.* violence order then in place against Cline. That order,
entered December 12, 2000 and scheduled to terminate
_________________ December 12, 2003, required Cline to stay at least 500 feet
away from Marcum and members of her family, not to
COUNSEL commit further acts of domestic violence, and not to dispose
of or destroy jointly held property. Pursuant to Marcum’s
ON BRIEF: Stephen W. Owens, STEPHEN W. OWENS claim that she and Cline had “worked everything out,” the
LAW OFFICE, Pikeville, Kentucky, for Appellant. Martin County District Court amended the prior order,
removing the “stay away” and “no contact” provisions. All
other provisions of the December 2000 order remained in
force.
*
The Honorab le Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
No. 02-5966 United States v. Cline 3 4 United States v. Cline No. 02-5966
Relations between Cline and Marcum quickly deteriorated, The three pursuers caught up with Smith and Marcum “on
however, and on April 19, 2001, Marcum sought to reinstate a nearby road,” and mayhem ensued. Cline pummeled
the “no contact” and “stay away” provisions, citing new Smith1, leaving him unconscious in the road, and then seized
instances of abuse. This petition was denied when Marcum Marcum’s car, preventing her from escaping. He beat
failed to appear at a hearing on the issue. Marcum in the car, and then sped away, possibly over Smith’s
supine figure. (Smith died in the road, but not before being
It is clear that Cline possessed and used firearms while the struck by at least one other passing car.) Marcum testified
December 2000 order remained in effect. At trial, Marcum that Cline ignored her pleas and protestations, exclaiming
testified that she purchased guns in the “summertime” of “you want Luther that bad, you are going to get him, you are
2001, and that she and Cline used them for deer hunting. going to watch me run over him.” J.A. at 176.
Pawn broker Mark Jordan testified that Cline pawned a
Norinco SKS on August 7, 2001, and that in July of that year Cline then drove Marcum back to DeLong’s trailer. Once
he sold several guns to Marcum in the presence of Cline. inside the trailer, Cline exclaimed: “I’ve already killed
Luther. You’ve seen too much. Now you are going to die,
On August 11, 2001, Cline and Marcum sat drinking beer bitch.” J.A. at 177. He continued to beat Marcum severely,
and talking, at the trailer of Okey DeLong in Martin County. cracking three ribs and her skull, inducing swelling in her
Also in attendance were Butch Crum, Regina “Tiny” brain, breaking her tailbone, and inflicting several large
Newsome, and Newsome’s son, Kenny. Luther Smith arrived bruises. Cline may have succeeded in carrying out his threat
while Crum and Newsome were away on a beer run. to kill his wife, had the police not arrived to arrest him.
Inexplicably, the tenor of the conversation between Cline On November 15, 2001, a grand jury indicted Cline on
and Smith began to change, from “joking around” and charges of carjacking (Count 1), possession of firearms while
“kidding around,” to heated and angry. Cline began to direct subject to a domestic violence order (Counts 2 through 5),
his anger toward Marcum, threatening to knock her through and using and carrying a firearm during and in relation to a
a nearby wood shed and the like. Fearing for her safety, crime of violence (Count 6), in violation of 18 U.S.C.
Marcum instructed Kenny to survey the proceedings, and to §§ 2119, 922(g)(8)(B), and 924(c), respectively. During
call 911 or the sheriff’s office if Cline became violent. Cline pretrial proceedings, Cline moved to dismiss Counts 2-5,
commenced hitting Marcum all the same, and so Marcum arguing that the “dismissal” of the April 2001 domestic
seized the first available opportunity (when Cline went inside violence petition removed any order then in force against him.
to use the restroom) to plead with Smith: “I told Luther to In response, the government produced an affidavit from the
please help me ... I knew [Cline] was drinking, and I knew he issuing judge, which affirmed that the December 2000 order
was going to hurt me.” J.A. at 173. remained in effect after April 2001. The district court
thereafter denied Cline’s motion to dismiss, and granted a
Smith took Marcum at her word, and departed with her in government motion to bar defense counsel from reasserting
his car while Cline was still inside the trailer. Unfortunately,
Crum and Newsome soon returned, and offered their vehicle
to Cline for use in pursuing his fleeing wife.
1
Luther had left his car vo luntarily, vowing “I’m not afraid of Phillip,
and he’s never going to hurt you again.” J.A. at 175.
No. 02-5966 United States v. Cline 5 6 United States v. Cline No. 02-5966
this argument at trial. Defense counsel then unsuccessfully prior order. In his affidavit, the Martin County issuing judge
moved to sever Counts 1 and 6 from the indictment. supported the government’s interpretation.
The case proceeded to trial in February of 2002. A jury Cline cites no law in support of his proposition that
convicted Cline of Counts 1 through 5, and found him not accepting the affidavit of a state court judge as evidence of
guilty of Count 6, carrying a firearm during and in relation to the status of a DVO violated his right to confront witnesses
a crime of violence in violation of 18 U.S.C. § 924(c). Over against him. Cline cannot challenge the affidavit itself
defense counsel’s various objections, the district court because his counsel failed to properly preserve the issue for
sentenced Cline to 220 months in prison, three years of appellate review.
supervised release, and a special assessment of $500.
Generally, an appellant cannot raise a claim before the
On August 2, 2002, Cline filed a timely notice of appeal. appellate court that was not raised below. In United States v.
Bonds, 12 F.3d 540, 569 (6th Cir. 1993), this Court held that
II. Discussion a defendant waives his right to challenge the sufficiency of an
affidavit when he fails to raise the challenge at the district
Cline charges that the district court erred in four respects: court level. Id. at 569. Where a defendant does not challenge
(1) by accepting a state court judge’s affidavit as evidence of the evidence before the district court, he must demonstrate
the status of a domestic violence order; (2) by granting a that admission of the evidence nonetheless constituted “plain
motion in limine barring the defense from challenging the error.” See FED . R. EVID . 103(a)(1) and (d); FED . R. CRIM . P.
status of said order at trial; (3) by failing to sever Counts 1 52(b); United States v. Bray, 139 F.3d 1104, 1110 (6th Cir.
and 6 from the indictment; and (4) in its various 1998).
enhancements of Cline’s sentence. Cline challenges the
enhancements of two levels for carjacking, two levels for To establish plain error, Cline must demonstrate that: (1) an
making a threat of death during a carjacking, and two levels error occurred; (2) the error was obvious or clear; (3) the error
for obstruction of justice. He also alleges that the district affected his substantial rights; and (4) the error seriously
court improperly counted past convictions which may have affected the fairness, integrity, or public reputation of the
been uncounseled. judicial proceedings. United States v. Koeberlein, 161 F.3d
946, 949 (6th Cir. 1998). An error that does not affect a
A. The State Judge’s Affidavit defendant’s substantial rights is harmless. See FED . R. CRIM .
P. 52(a).
Before the district court, Cline argued that he could not be
found guilty of possessing firearms while subject to a Here, it is clear that Cline’s substantial rights were not
domestic violence order (DVO), because the last order affected. A defendant’s right to confront witnesses at the pre-
obtained by his wife had been marked as “dismissed.” The trial stage is substantially weaker than his right to do so at
government argued that the “dismissed” order (allowing trial. United States v. Matlock, 415 U.S. 164, 173-75 (1974).
contact with Marcum for purposes of an attempted In ruling on the proper interpretation of the DVO, the district
reconciliation) was merely a modification of an existing and court was entitled to give the evidence presented such weight
valid DVO, and that its dismissal did nothing to revoke the as its judgment and experience counseled. See id. at 175.
Again, Cline points to no case in which such conduct was
No. 02-5966 United States v. Cline 7 8 United States v. Cline No. 02-5966
held to violate a defendant’s rights under the confrontation 515 U.S. at 525-26 (citations omitted). See also United States
clause. v. Craft, 105 F.3d 1123, 1126 (6th Cir. 1997)(quoting
previous version of FED . R. CRIM . P. 12(b)); United States v.
B. The Motion in Limine Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998) (motion in
limine may be used to prevent introduction of evidence
Cline next challenges the district court’s grant of the supporting a defense whose elements cannot be established).
government’s motion in limine. Cline contends that, because
the status of the DVO was an element of the offenses charged In fact, Cline acknowledged that the DVO issue was an
in Counts 2 through 5, the district court was required to let the appropriate matter for pretrial resolution. On January 25,
jury determine that status. 2002, Cline filed a Motion to Dismiss Counts 2-5 of the
indictment, arguing that he “was not under a domestic
This court reviews a district court’s decision to exclude violence order at the time of the incident in question.” J.A. at
evidence pursuant to a motion in limine for abuse of 103. (The government did not file its motion in limine until
discretion. United States v. Phibbs, 999 F.2d 1053, 1078 (6th February 1, in conjunction with its reply to Cline’s motion to
Cir. 1993); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, dismiss. J.A. at 105-06.) In denying Cline’s motion, the
141 (1997). A district court abuses its discretion when it district judge properly ruled on his DVO status as a matter of
relies on clearly erroneous findings of fact, when it law. J.A. at 108-116; cf. Craft, 105 F.3d at 1126. Cline
improperly applies the law, or when it employs an erroneous cannot now complain that the judge was not permitted to do
legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608, so, merely because he is unsatisfied with the decision.
615 (6th Cir. 1995).
Determining the legal meaning of the DVO did not require
No abuse of discretion occurred. While the United States trial of the general issue of guilt on any count and thus did not
Supreme Court has consistently reaffirmed its holding that a invade the province of the jury. Cf. Craft, 105 F.3d at 1126;
jury must find a defendant guilty beyond a reasonable doubt United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir.
of every element of a criminal offense, see, e.g., United States 1986). The jury instructions properly set forth each element
v. Gaudin, 515 U.S. 506, 510 (1995), Rule 12(b) of the of 18 U.S.C. §922(g)(8), and the jury was instructed to
Federal Rules of Criminal Procedure permits a party to “raise determine whether the government had proved each element
by pretrial motion any defense, objection, or request that the beyond a reasonable doubt. Therefore, no abuse of discretion
court can determine without a trial of the general issue.” FED . occurred.
R. CRIM . P. 12(b). As Chief Justice Rehnquist, concurring in
Gaudin, observed: C. The Unsevered Counts
mixed questions of law and fact remain the proper Cline next claims that the district court erred in declining to
domain of the trial court. Preliminary questions in a trial sever Counts 1 and 6 (carjacking) from Counts 2-5
regarding the admissibility of evidence, the competency (possession of firearms while subject to a DVO), because his
of witnesses, the voluntariness of confessions, the possession of the guns was unrelated to the carjacking. The
legality of searches and seizures, and the propriety of district court determined that all of the charged offenses were
venue, may be decided by the trial court. “acts or transactions connected together or constituting parts
of a common scheme or plan” under the version of Federal
No. 02-5966 United States v. Cline 9 10 United States v. Cline No. 02-5966
Rule of Criminal Procedure 8(a) then in force.2 We review D. The Sentencing Enhancements
the denial of a motion to sever for abuse of discretion. United
States v. Jacobs, 244 F.3d 503, 506 (6th Cir. 2001). Cline asserts that the district court erred by: (1) applying a
two-level enhancement for committing a carjacking under the
Cline’s brief argues that “[t]here was no evidence that United States Sentencing Guidleines § 2B3.1(b)(5); (2)
Counts 2, 3, 4 & 5 were part of the same transaction alleged counting past convictions which may have been uncounseled;
in Counts 1 & 6, nor that they were part of a common (3) applying a two-level enhancement for obstruction of
scheme.” Indeed, the government’s argument that every justice under USSG § 3C1.1; and (4)applying a two-level
count “involved domestic violence” against the same person, enhancement for making a threat of death during the
and that each count concerns events from “the summer of carjacking under USSG § 2B3.1(b)(2)(F).
1991 ... in the Eastern District of Kentucky,” might seem a
difficult fit with the standard set forth in Rule 8(a). “Legal conclusions regarding [application of the
sentencing] guidelines are reviewed de novo; however, this
Yet Cline fails to establish (or even to argue) that joinder of circuit gives due deference to the district court’s application
the six Counts prejudiced him in any way. This omission is of the guidelines to the facts pursuant to 18 U.S.C.
fatal to Cline’s position, since Federal Rule of Criminal § 3742(a).” United States v. Smith, 320 F.3d 647, 657 (6th
Procedure 14 requires prejudice for an order of separate trials, Cir. 2003) (citing Buford v. United States, 532 U.S. 59and “an appellant must show that the denial of his motion for (2001)). Factual findings used to determine a defendant’s
severance of counts affected his ‘substantial rights’.” United criminal history category are reviewed for clear error. United
States v. Cope, 312 F.3d 757,781 (6th Cir. 2002) (citing States v. Wilson, 168 F.3d 916, 922 (6th Cir. 1999).
United States v. Chavis, 296 F.3d 450, 461 (6th Cir. 2002)).
Three of Cline’s four arguments may be disposed of briefly.
Additionally, the district court’s limiting instructions,
which asked the jury to separately consider the evidence for 1. Enhancement for Carjacking
each count and not to decide Cline’s guilt or innocence on one
count based on its decision on another (with the exception of United States Sentencing Guidelines § 2B3.1(b)(5) permits
Count 6), minimized any possible prejudice. See Jacobs, 244 a two-level enhancement “[i]f the offense involved
F.3d at 507; Cope, 312 F.3d at 781. carjacking.” U.S. SENTENCING GUIDELINES MANUAL
§ 2B3.1(b)(5) (2003). Carjacking is defined as “the taking or
attempted taking of a motor vehicle from the person or
presence of another by force and violence or by intimidation.”
U.S. SENTENCING GUIDELINES MANUAL § 2B3.1, cmt. n. 1
(2003).
Cline argues that the district court’s application of this
section constituted impermissible double counting, which
2
Rule 8(a) has since been amended to allow joinder of two or more occurs if “the same aspect of a defendant’s conduct factors
offenses where they “are of the same or similar character, or are based on into his sentence in two separate ways,” and neither Congress
the same act or transaction, or are connected with or constitute parts of a nor the Sentencing Commission intended to impose multiple
common scheme or plan.” F ED . R. C RIM . P. 8(a).
No. 02-5966 United States v. Cline 11 12 United States v. Cline No. 02-5966
penalties. United States v. Farrow, 198 F.3d 179, 193-94 (6th The United States Supreme Court rejected a similar
Cir. 1999). argument in Parke v. Raley, 506 U.S. 20, 31 (1992),
remarking that “[a]t the time the prior conviction at issue in
Cline’s only citation in support of this argument is to Burgett was entered, state criminal defendants' federal
Farrow, in which we determined that it was impermissible constitutional right to counsel had not yet been recognized,
double-counting to employ Farrow’s act of using his vehicle and so it was reasonable to presume that the defendant had
as a dangerous weapon both to convict him of aggravated not waived a right he did not possess.” Parke reaffirmed the
assault and to enhance his sentence (for “otherwise using” a application of a presumption of regularity to state court
dangerous weapon, i.e., the same vehicle). Id. at 195. proceedings, even as to the waiver of counsel, and Cline cites
However, Cline fails to note the language in Farrow no precedent to support his contention that said presumption
observing that “the Sentencing Guidelines expressly mandate “does not apply in this matter.”
double counting under some circumstances through the
cumulative application of sentencing adjustments.” Id. at In relying on this presumption to compute Cline’s criminal
194. For example, “Congress has clearly indicated its intent history score, the district court did not err.
to punish cumulatively violations of §§ 2119 and 924(c) [the
federal carjacking statute and the provision for enhanced 3. Enhancement for Obstruction of Justice
punishment for using a dangerous or deadly weapon during a
violent crime, respectively].” United States v. Johnson, 22 Cline argues that the district court erred by applying a two-
F.3d 106, 108 (6th Cir. 1994) (quoting United States v. level enhancement for obstruction of justice without first
Singleton, 16 F.3d 1419, 1425 (5th Cir. 1994)), cited in making the necessary findings. Section 3C1.1 of the
Farrow, 198 F.3d at 194. sentencing guidelines provides for such an enhancement
where “the defendant willfully obstructed or impeded, or
Given this express mandate, the district court properly attempted to obstruct or impede, the administration of justice
imposed the enhancement for carjacking. during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction,” and the
2. Counting Past Convictions obstructive conduct related to the offense. U.S. SENTENCING
GUIDELINES MANUAL § 3C1.1; see also United States v.
Cline also argues that the district court erred in computing Dunham, 295 F.3d 605, 609 (6th Cir. 2002).
Cline’s criminal history score, by counting past convictions
which may have been uncounseled. Cline appears to contend The Commentary to § 3C1.1 provides a “non-exhaustive
that, in order to legitimately rely on the convictions listed in list” of examples of conduct which may result in an
paragraphs 106, 107, 108, 110, 111, and 113 of the enhancement for obstruction of justice, including
presentence investigation report, the district court was “committing, suborning, or attempting to suborn perjury,”
required to find that Cline was represented by counsel, or U.S. SENTENCING GUIDELINES MANUAL § 3C1.1, cmt. n. 4(b)
explicitly waived his right to counsel, in each case. Cline (2003), and “providing materially false information to a judge
cites Burgett v. Texas, 389 U.S. 109 (1967) for the principle or magistrate,” id., n. 4(f). The Commentary defines as
that “[p]resuming waiver of counsel from a silent record is “material” any “information that, if believed, would tend to
impermissible.” Id. at 114-15. influence or affect the issue under determination,” id., n. 6.
The Commentary also cautions that
No. 02-5966 United States v. Cline 13 14 United States v. Cline No. 02-5966
[i]n applying this provision in respect to alleged false Court upheld enhancements for obstruction based on similar
testimony or statements by the defendant, the court perjurious testimony. The district court did not abuse its
should be cognizant that inaccurate testimony or discretion in this case.
statements sometimes may result from confusion,
mistake, or faulty memory and, thus, not all inaccurate 4. “Threat of Death” During the Carjacking
testimony or statements necessarily reflect a willful
attempt to obstruct justice. The most difficult question posed by Cline’s appeal
involves the propriety of an enhancement for making a threat
Id., n. 2. of death during the carjacking, under § 2B3.1(b)(2)(F).
Section 2B3.1 of the Guidelines allow enhancement “if a
The district court in this case identified several areas of threat of death was made” during a robbery. U.S.
perjurious testimony by Cline, including: SENTENCING GUIDELINES MANUAL § 2B3.1(b)(2)(F). Cline
contends that “any threats were made after the taking of the
Cline’s statement under oath that he did not drive the car vehicle had been accomplished.” Appellant’s Br. at 9.
away, that [Marcum] drove the car and he was invited
along with her ... that he went up the coal mine road to As the district court correctly observed, a vote to convict
get away from Luther Smith when Luther returned ... necessarily implies that the jury believed Marcum’s
[and] that he didn’t want to have a further confrontation description of the events leading up to the apprehension of
with him. Cline by the police. Marcum’s testimony was that she
regained consciousness upon arrival at DeLong’s trailer,
J.A. at 225-26. The district court explicitly found that these “[a]nd we went in the house, and no one was there.” J.A. at
statements constituted “sufficient testimony in evidence to 177. Asked “what happened next,” Marcum responded:
support [the enhancement for] obstruction of justice.” J.A. at
227. Because “the jury had to disbelieve [Cline] entirely to [Cline] punched me and knocked me over the kitchen
convict him,” J.A. at 225, the court found that the obstructive table. And I got back up, and he punched me again.
conduct was sufficiently related to the offense of conviction. That’s when he chipped my right front tooth. And then
he told me that I had seen too much and [his] exact
Cline challenges this finding by reference to United States words were, “I’ve already killed Luther. You’ve seen too
v. Tackett, 193 F.3d 880, 886-87 (6th Cir. 1999), charging much. Now you are going to die, bitch.”
that Tackett requires a sentencing judge to specify particular
elements of “substantial interference.” Because Tackett Id. From this, it is clear that the threat of death in question3
addressed the proper procedure for sentencing under occurred after Cline and Marcum returned to DeLong’s trailer
Guidelines § 2J1.2(b), which applies to convictions for and exited the purloined vehicle. Enhancement for this threat
perjury, rather than § 3C1.1, it is of little guidance here. under § 2B3.1(b)(2)(F) would require a finding that it was
made “during” the robbery/carjacking, i.e. that the act of
The facts at bar bear a closer likeness to United States v.
Paul, 57 Fed. Appx. 597, 612, 2003 WL 173059, at *14 (6th
Cir. 2003) and United States v. Miller, 45 Fed. Appx. 359,
3
364, 2002 WL 1894647, at *4-5 (6th Cir. 2002), in which this The government does not seek to justify this enhancement based on
any threats made to or regarding the owner of the vehicle, Luther Smith.
No. 02-5966 United States v. Cline 15 16 United States v. Cline No. 02-5966
carjacking did not terminate when Cline and Marcum left the intent4 and accords with that circuit’s “interpretation of
vehicle. sentencing enhancement regimes generally.” Vazquez-Rivera,
135 F.3d at 178. Courts have arrived at similar conclusions
Determining the duration of a carjacking has proved a in measuring the duration of carjacking for purposes of mens
thorny task for the federal courts. In United States v. rea. See United States v. Lebron-Cepeda, 324 F.3d 52, 62
Vazquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998), the First (1st Cir. 2003)(Howard, J., concurring); United States v.
Circuit acknowledged the “the not insubstantial problem of Jones, 2003 U.S.Dist. LEXIS 9933 (E.D.Pa. 2003)(adopting
delineating the precise temporal limits of the crime of reasoning of Howard, J., on the issue “of the length or
carjacking.” And while that court opined that it “need not definition of taking when there’s an extended carjacking
provide a comprehensive answer to this problem,” it involving the continued presence of the victim.”)
proceeded to uphold an enhancement for serious bodily injury
where the defendant used a firearm first to obtain possession Similarly, the Ninth Circuit has reasoned that a carjacking
of the victim’s car, and then “to intimidate her immediately continues until the victim is “permanently separated from her
prior to raping her.” Id. Although the rape occurred outside car.” United States v. Hicks, 103 F.3d 837, 844 n.5 (9th Cir.
of the vehicle, the court held that “the injuries covered are not 1996). The District Court of Puerto Rico has upheld an
limited to those resulting from the ‘taking’ of a vehicle, but enhancement for serious bodily injury where a rape took place
also include those caused by the carjacker at any point during in an apartment, but the defendant “was still in full control of
his or her retention of the vehicle.” Id. (citing United States the carjacked vehicle, as he retained the keys to the car, had
v. Cruz, 106 F.3d 1134, 1137 (3rd Cir. 1997) (holding that a a victim in its trunk, and the owner under his command.”
woman raped during a carjacking was a “victim” of the United States v. Gonzalez-Mercado, 239 F.Supp.2d 148, 150
carjacking for sentencing purposes; court may “look at all the (D. P.R. 2002).
conduct underlying the offense of the conviction”)).
In accord with this well-supported approach, we do not find
In Ramirez-Burgos v. United States, 313 F.3d 23, 30 n.9 that the district court erred in applying the enhancement for
(1st. Cir 2002), the First Circuit reaffirmed, “without Cline’s threat of death. At the time of the threat, Cline had
hesitation, that the commission of a carjacking continues at control over the victim of the carjacking, and had left for dead
least while the carjacker maintains control over the victim and the owner of the vehicle. Although Marcum did not testify as
her car.” The court concluded that rape of the victim to whether Cline retained the keys to the car, the district court
“resulted” from the carjacking, because “the rape, like the was justified in finding that he had not permanently separated
earlier brandishing of the gun, provided the intimidation by her from the vehicle. As with prior efforts to address this
which the carjackers extended their control of the victim and issue, we need not draw a precise line demarcating the
the automobile.” Id. at 30. termination of any and all carjackings. It will suffice to hold
that the carjacking persisted at least until further dissipation
The First Circuit’s decision to consider for purposes of of the indicia of Cline’s control over the vehicle. We will not
sentencing all acts occurring during a defendant’s control of
the seized vehicle represents an effort to effectuate legislative
4
The opinion in Vazq uez-Rivera cites the Anti Car Theft Act, Pub. L.
No. 102-519, reprinted in 1992 U.S.C.A.A.N. 2847, at 1865. 135 F.3d at
178.
No. 02-5966 United States v. Cline 17
reach a different result merely because the arrival of police
denied Cline the opportunity to flee in the stolen car (as in
Vazquez-Rivera) or to return it to the victim (as in Gonzalez-
Mercado).
III. Conclusion
For the foregoing reasons, the decision of the district court
is AFFIRMED in all respects.