UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4029
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANNY L. BLACKMON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-77-F)
Submitted: October 25, 2006 Decided: December 13, 2006
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Jane E. Pearce, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury found Danny Blackmon guilty of kidnaping in
violation of 18 U.S.C. § 1201 (2000). The court sentenced him to
365 months’ imprisonment. He appeals his conviction and sentence.
Blackmon and his wife Robin moved into adjacent campers
in Snead’s Ferry, North Carolina, near Camp Lejeune Marine Corps
Base. Blackmon had physically abused Robin prior to the instant
offense. On the evening of the incidents giving rise to the
conviction, Blackmon lured Robin to his van by saying her dog was
in his van. When she saw there was no dog, she tried to run away.
Blackmon shot her in the back with a pellet gun, and then ran up to
her and shot her in the groin. Blackmon continued threatening
Robin with the gun and then shot her in the neck. Blackmon then
ordered her to take her clothes off and enter the van. While
Blackmon drove, he ordered Robin to play with his penis. Robin
complied.
Blackmon stopped the car within Camp Davis, which is part
of Camp Lejeune Marine Corps base. Blackmon ordered Robin to
perform oral sex. After she complied, Blackmon penetrated her
anally and again demanded oral sex. Robin again complied. When
Blackmon turned the van around to leave, it became stuck in the
mud. Blackmon ordered Robin to push the van, which she did while
still naked. However, she was unable to get the van free.
Blackmon and Robin walked one hundred yards into the woods, and
- 2 -
Robin thought Blackmon was going to kill her. Instead, Blackmon
and Robin engaged in a variety of sex acts.
Eventually, they returned to the van, and Blackmon walked
down the road to get help pulling the van out of the mud. Blackmon
was able to flag down Jack Carroll, who agreed to pull the van out
of the mud after dropping off his boat. While Blackmon was waiting
for Carroll, police officers arrived on the scene because they had
been advised that people were flagging down vehicles. Robin did
not alert the officers as to the events that had transpired because
she was afraid of Blackmon’s reaction. Carroll eventually returned
and gave Robin a ride home. At that time, Robin reported to
Carroll what had occurred. Police officers later went to Robin’s
camper. When they arrived, she told them that Blackmon had both
abducted and sexually assaulted her.
The Presentence Report recommended a two-level
enhancement because the victim sustained serious bodily injury, a
two-level enhancement because a dangerous weapon was used, a two-
level enhancement for perjury because Blackmon testified that he
did not kidnap Robin, and a six-level enhancement because the
victim was sexually exploited. Blackmon filed several objections,
including an objection to the six-level enhancement for sexual
exploitation, which was the only objection sustained by the court.1
1
Blackmon was sentenced one month prior to the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005).
- 3 -
As a result, the total offense level was thirty-eight. With a
criminal history category III, Blackmon’s guideline range was 292-
365 months’ imprisonment. The court sentenced Blackmon to 365
months’ imprisonment and said the sentence constituted “both the
sentencing guideline sentence and the alternative sentence pursuant
to 18 United States Code Section 3553(a), as directed by . . .
United States v. Hammoud.”2
The indictment charged that “at Marine Corps Base, Camp
Lejeune, a place within the special maritime and territorial
jurisdiction of the United States, the defendant, DANNY L.
BLACKMON, did, knowingly, willingly, and unlawfully seize and
confine, and hold for his own purposes, the victim, . . . in
violation of Title 18, United States Code, Section 1201.” (JA 19).
Section 1201 provides, in relevant part:
(a) Whoever unlawfully seizes, confines,
inveigles, decoys, kidnaps, abducts, or
carries away and holds for ransom or reward or
otherwise any person, except in the case of a
minor by the parent thereof, when–
(1) the person is willfully transported in
interstate or foreign commerce,
regardless of whether the person was
alive when transported across a State
boundary if the person was alive when the
transportation began;
(2) any such act against the person is done
within the special maritime and
territorial jurisdiction of the United
States;
2
United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004).
- 4 -
18 U.S.C. § 1201(a)(1), (2).
Blackmon contends that the language of the indictment
tracked § 1201(a)(2), but the evidence at trial proved a violation
of § 1201(a)(1), creating a fatal variance. Specifically, he
asserts that the indictment was based on a contention that the
conduct occurred in the special territorial jurisdiction of the
United States, while the proof at trial suggested the kidnaping
occurred on state land and Robin was subsequently transported to
(and held on) federal property, establishing a violation of
§ 1201(a)(1), not § 1201(a)(2). Blackmon argues that both the
seizure and the holding of the victim must occur within the
territorial jurisdiction of the United States to satisfy
§ 1201(a)(2). However, this court has held that “[k]idnaping is a
continuing crime which begins the moment that the victim is
unlawfully seized, confined, inveigled, decoyed, kidnaped,
abducted, or carried away.” United States v. Willis, 346 F.3d 476,
488 (4th Cir. 2003). Moreover, the first element of the crime can
be established by any of the seven distinct acts listed under
§ 1201(a). There is nothing in the statute or case law to suggest
that if more than one of those acts occur, they all have to occur
on federal territory for the United States to have jurisdiction.
See United States v. Stands, 105 F.3d 1565 (8th Cir. 1997) (“much
of the defendant’s inveigling . . . took place within the . . .
- 5 -
boundaries of the . . . reservation”).3 Here, even though the
abduction did not begin on a federal enclave, the evidence
established that Robin was held on federal property. Blackmon took
Robin against her will in his van, and drove the van into Camp
Davis, which is part of Camp Lejeune; once there, Blackmon engaged
in sexual activity with Robin in the van, as well as in the nearby
woods. Thus, the evidence at trial established that Blackmon held
Robin against her will in the special territorial jurisdiction of
the United States. There was no variance between the indictment
and the proof at trial.
Next, Blackmon alleges that the evidence was insufficient
to support his conviction because the evidence does not show
Blackmon held Robin for an appreciable time period within the
special territorial jurisdiction of the United States. An
appellate court should affirm a conviction challenged for
sufficiency of the evidence if, viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt. See Glasser v. United States, 315 U.S. 60, 80 (1942);
United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996). A
defendant challenging a conviction for sufficiency of the evidence
3
Blackmon incorrectly argues that the court in Stands spent
considerable attention to determine federal jurisdiction, citing
to four pages of that opinion. Appellant’s reply brief at 4. In
fact, the Eighth Circuit used three sentences to address
jurisdiction. Stands, 105 F.3d at 1571.
- 6 -
bears a “heavy burden,” see United States v. Hoyte, 51 F.3d 1239,
1245 (4th Cir. 1995), and “a decision [to reverse for insufficient
evidence] will be confined to cases where the prosecution’s failure
is clear.” Burks v. United States, 437 U.S. 1, 17 (1978). An
appellate court must “consider circumstantial as well as direct
evidence, and allow the government the benefit of all reasonable
inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982) (citations omitted). This court does not review
credibility determinations on appeal. See Glasser, 315 U.S. at 80.
Blackmon’s argument is that because he was acquitted of
the sexual abuse charges, which occurred in the federal territorial
jurisdiction, he must also be acquitted of the kidnaping charge.
Blackmon’s argument fails for two reasons. First, the acquittal on
the sexual abuse charges does not necessarily mean the jury found
Robin consented to the conduct. The jury was instructed to acquit
Blackmon if they found he mistakenly, but reasonably, believed
Robin consented. Moreover, “seemingly inconsistent conclusions
should not be set aside as error unless the evidence in the case is
insufficient to ‘support any rational determination of guilt beyond
a reasonable doubt.’” United States v. Hopkins, 310 F.3d 145, 153
(4th Cir. 2002), quoting United States v. Powell, 469 U.S. 57, 67
(1984). We find Robin’s testimony that she was held on federal
property against her will for three to four hours satisfies the
- 7 -
requirement that the victim be held for an appreciable period of
time. Chatwin v. United States, 326 U.S. 455, 460 (1946) (holding
that an “act of holding a kidnaped person for a proscribed purpose
necessarily implies an unlawful physical or mental restraint for an
appreciable period”).
Blackmon argues that the trial court erred under Booker
by sentencing him under a mandatory guideline scheme and making
factual findings that increased his sentence. The Government
concedes error, but argues the error did not affect Blackmon’s
substantial rights.
Because Blackmon preserved his Sixth Amendment claim, it
is reviewed for harmless error. Booker, 543 U.S. at 268. The
government bears the burden of showing beyond a reasonable doubt
that the error did not affect the defendant’s substantial rights.
United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).
However, because the district court stated that it would impose an
identical alternative sentence under § 3553 if the guidelines were
determined to be non-binding or unconstitutional, the government
has met its burden of showing that the Sixth Amendment error was
harmless. United States v. Shatley, 448 F.3d 264, 267 (4th Cir.
2006). The district court followed this court’s recommendation in
United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), vacated,
543 U.S. 1097 (2005), the alternative sentence was within the range
recommended by the sentencing guidelines, and this court takes the
- 8 -
district court at its word when it states that it would impose the
same sentence under an advisory guidelines system. Shatley, 448
F.3d at 268. We find Blackmon is not entitled to relief.
Finally, Blackmon argues the sentencing guidelines are
unconstitutional because the Feeney Amendment to the PROTECT ACT,
Pub. L. No. 108-21, 117 Stat. 667 (2003), violates the Separation
of Powers doctrine. He relies on United States v. Detwiler, 338 F.
Supp. 2d 1166 (D. Or. 2004). Because the district court noted it
would give the same sentence if the guidelines were advisory, any
error is harmless. See generally United States v. Coleman, 451
F.3d 154 (3d Cir. 2006).
Accordingly, we affirm Blackmon’s 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
- 9 -