UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4527
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOMINICKE ANTOINE TRIGGS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Chief
District Judge. (CR-03-413)
Submitted: September 9, 2005 Decided: November 3, 2005
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark J. Petrovich, PETROVICH & WALSH, P.L.C., Springfield,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Patrick F. Stokes, Patricia M. Haynes, Assistant United States
Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dominicke Antoine Triggs appeals from his conviction for
one count of conspiracy, in violation of 18 U.S.C. § 371 (2000);
two counts of carjacking, in violation of 18 U.S.C. §§ 2119 and 2
(2000); two counts of carrying and using a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2 (2000); one count of kidnaping, in violation
of 18 U.S.C. § 1201(a)(1) (2000); and, one count of being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2) (2000), and his resulting sentence of 524 months’
imprisonment. Triggs was convicted after a jury trial and he now
raises the following claims: (1) sufficiency of the evidence to
prove that his conduct met the elements required for the carjacking
offenses; (2) violation of his Sixth Amendment right to confront
witnesses when the district court limited his cross-examination of
key Government witnesses to reference a related state court trial
as a “prior proceeding;” and, (3) his sentence was unconstitutional
in light of Blakely v. Washington, 542 U.S. 296 (2004).
Triggs first argues that there was insufficient evidence
to find beyond a reasonable doubt that his taking of the victim's
car comported with the requisite elements set forth in 18 U.S.C.
§ 2119 (2000). The verdict of the jury must be sustained if there
is substantial evidence, taking the view most favorable to the
government, to support it. Glasser v. United States, 315 U.S. 60,
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80 (1942). “[S]ubstantial 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.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996). In
evaluating the sufficiency of the evidence, this court does not
review the credibility of witnesses and assumes the jury resolved
all contradictions in the testimony for the government. United
States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002).
Section 2119 provides that, “[w]hoever, with the intent
to cause death or serious bodily harm takes a motor vehicle that
has been transported, shipped, or received in interstate or foreign
commerce from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall-(1) be
fined under this title or imprisoned not more than 15 years, or
both.” 18 U.S.C. § 2119. The jurisdictional element of 18 U.S.C.
§ 2119 requires that the government prove that the car in question
has been moved in interstate commerce, at some time. See United
States v. Johnson, 22 F.3d 106, 108-09 (6th Cir. 1994). The intent
requirement of § 2119 is satisfied when the government proves that,
at the moment the defendant demanded or took control of the
vehicle, 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). The government need not prove that
the defendant actually intended to cause the harm; it is sufficient
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that the defendant was conditionally prepared to act if the person
failed to relinquish the vehicle. United States v. Wilson, 198
F.3d 467, 470 (4th Cir. 1999). The “taking” element of § 2119 is
satisfied when defendants take control of a victim's vehicle, even
if they do not force him to relinquish it. See, e.g., United
States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996). We conclude
that, when construed in the light most favorable to the government,
the evidence presented at trial was sufficient to establish the
requisite elements of 18 U.S.C. § 2119. Glasser, 315 U.S. at 80.
Accordingly, we affirm Triggs’ convictions on counts two and four
(the carjacking charges).1
Triggs next asserts that the district court’s pretrial
ruling that, when cross-examining key Government witnesses, he must
refer to a prior state court trial as a “prior proceeding” violates
his Sixth Amendment right to confront witnesses. A district
court’s limitation on a defendant’s cross-examination is reviewed
for an abuse of discretion. United States v. McMillon, 14 F.3d
948, 955-56 (4th Cir. 1994) (citation omitted). “[I]t is clear
from Supreme Court precedent that the Sixth Amendment guarantees
the right of a criminal defendant to reasonable cross-examination,
when otherwise appropriate, for the purpose of impeaching the
1
Because we find the evidence was sufficient to support
Triggs’ conviction on counts two and four (the carjacking charges),
Triggs’ challenge to count three (use of a firearm during and in
relation to a crime of violence) also fails.
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credibility of key witnesses.” Quinn v. Haynes, 234 F.3d 837, 847
(4th Cir. 2000). It does not follow, however, that the
Confrontation Clause prohibits a trial judge from imposing limits
on the impeachment of a prosecution witness. Id. “On the
contrary, trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety
or interrogation that is repetitive or only marginally relevant.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). We find that
Triggs’ ability to cross-examine the Government’s witnesses was not
unconstitutionally restricted, because the district court, in its
ruling, permitted a thorough and substantial examination of the
witnesses’ potential biases and motives. Accordingly, we conclude
that this argument fails.
Finally, citing Blakely v. Washington, 542 U.S. 296
(2004), Triggs contends that his Sixth Amendment right to a jury
trial was violated because he was sentenced on facts found by the
court and not by the jury. Because Triggs did not object to his
sentence in the district court based on Blakely, or United States
v. Booker, 125 S. Ct. 738 (2005), this court’s review is for plain
error.2 United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2
We find no merit to Triggs’ argument that his Blakely
objection was preserved below because it was raised in a motion to
vacate pursuant to 28 U.S.C. § 2255 (2000). This motion was filed
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2005). To demonstrate plain error, Triggs must establish that
error occurred, that it was plain, and that it affected his
substantial rights. Id. at 547-48. If a defendant establishes
these requirements, the court’s “discretion is appropriately
exercised only when failure to do so would result in a miscarriage
of justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted). Even assuming that the
district court erred because at least one enhancement3 was imposed
based upon facts found by the court under the mandatory guidelines
scheme, Hughes, 401 F.3d at 547, and that error was plain, Hughes,
401 F.3d at 547-48, to affect Triggs’ substantial rights, the
sentence imposed must have been longer than the term of
imprisonment that the court could impose based solely on the jury’s
findings or the facts admitted by the defendant. Id. at 548. We
find that Triggs is unable to establish such prejudice.
in the district court (1) after the entry of final judgment and (2)
was dismissed based on the pendency of the instant appeal. Thus,
this issue was not properly presented for the district court’s
consideration.
3
Triggs appears to imply that more than one enhancement was
applied to his sentence (App. Br. at 20-21); however, he briefs
only the two-level enhancement for obstruction of justice with any
specificity. Thus, Triggs has waived his appeal of any other
enhancements to his sentence.
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In imposing a sentence upon Triggs, the district court
calculated his base offense level to be twenty-six. This was
enhanced two levels for obstruction of justice. An additional
level was added pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 3D1.4 (2003), pertaining to grouping of closely related
counts. Based upon Triggs’ offense level of twenty-nine and
criminal history category of V, the sentencing range calculated by
the district court was 140 to 175 months. An actual sentence of
140 months was imposed.
To affect Triggs’ substantial rights, the 140-month
sentence imposed upon him must have been longer than the term of
imprisonment that the court could impose based solely on the jury’s
findings or the facts admitted by the defendant. Id. Absent the
challenged two-point adjustment for obstruction of justice, Triggs’
base offense level for the grouping of Counts Two, Four, and Five
would be twenty-six, as opposed to twenty-eight. However, in this
circumstance, a two-level increase for closely related groupings
was added to the base level pursuant to USSG § 3D1.4.4 The
4
The adjustment applied to Triggs’ grouping for Counts Two,
Four, and Five, is applied pursuant to USSG § 3D1.4. According to
this section, the combined offense level for a grouping is
determined by taking the group with the highest offense level (the
most serious group) and increasing that offense level by comparing
it to the next highest grouping. USSG § 3D1.4, cmt. 2. The
highest grouping received an offense level of twenty-eight. Absent
the two-point enhancement for obstruction of justice, the offense
level assigned would have been twenty-six. Pursuant to USSG
§ 3D1.4, this offense level would be increased two levels, as the
next highest grouping, with an offense level of twenty-two, had an
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resulting combined adjusted offense level for this group would have
been twenty-eight. A combined adjusted offense level of twenty-
eight, and a criminal history category of V results in a Guidelines
range of 130 to 162 months’ imprisonment. (USSG, Sentencing
Table). Triggs’ sentence of 140 months’ imprisonment falls
squarely in the middle of this range. Thus, because the district
court did not “impose a sentence greater than the maximum
authorized by the facts [admitted] by the [defendant] alone,” see
United States v. Evans, 416 F.3d 298, 299 (4th Cir. 2005) (“Because
Evans’ sentence of 96 months’ imprisonment does not exceed the
maximum authorized by the facts he admitted, no Sixth Amendment
error occurred.”), we find that Triggs was not prejudiced.
Accordingly, we affirm Triggs’ conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
offense level that was one to four levels less serious than the
highest offense level calculated. § 3D1.4(a).
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