UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4175
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETRIOUS ADONIS MOORE, a/k/a Meechie,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:08-cr-00124-HMH-1)
Argued: September 23, 2010 Decided: November 22, 2010
Before WILKINSON, Circuit Judge, HAMILTON, Senior Circuit Judge,
and Robert J. CONRAD, Jr., Chief United States District Judge
for the Western District of North Carolina, sitting by
designation.
Affirmed in part; vacated and remanded by unpublished per curiam
opinion.
ARGUED: Thomas Edward Vanderbloemen, GALLIVAN, WHITE & BOYD, PA,
Greenville, South Carolina, for Appellant. William Jacob
Watkins, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville,
South Carolina, for Appellee. ON BRIEF: Garrett M. Heenan,
CADWALADER, WICKERSHAM & TAFT, LLP, Washington, D.C., for
Appellant. W. Walter Wilkins, United States Attorney, Columbia,
South Carolina, E. Jean Howard, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Defendant Demetrious Moore gave an unfortunate victim a
night he will never forget. For his actions that night, Moore
was convicted of carjacking, extortion, and bank robbery. He
now appeals the carjacking and bank robbery convictions, as well
as the sentence imposed by the district court. For the
following reasons, we affirm in part, vacate and remand.
I.
On September 9, 2007, Defendant Demetrious Moore and two
accomplices accosted a man (“the victim”) in the parking lot of
the victim’s apartment complex. The episode began around 9:45
p.m., when the victim had just returned home from evening
prayers. As he got out of his car, Moore and his accomplices
rushed at the man, held both his arms, and forced him into the
back seat. They took his wallet, cell phone, and car keys, and
drove him to a nearby ATM. When the victim resisted disclosing
his ATM PIN, Moore struck him once or twice, and the victim
eventually capitulated. The assailants withdrew the maximum
amount allowed by the machine, $500, and discovered the victim
had a significant balance in his account.
Moore and his accomplices demanded more money, and when the
victim said he had none on his person, they demanded he write a
check. They eventually drove back to the victim’s apartment to
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retrieve his checkbook. While there, they stole the victim’s
laptop and checkbooks as the victim waited in the car under the
watch of one of the accomplices. They forced him to write out a
check for $9,000 to a “John Cummings.” Moore put the check in
his pocket.
Moore told the victim that they could not release him
because they feared he would call the bank, but that they would
let him go after they cashed the check in the morning. After a
stop at Taco Bell, Moore and his contingent blindfolded the
victim and drove him, still in the victim’s vehicle, to an
Economy Inn. They rented a room and forced the victim into the
bathroom. From the comfort of the bathroom that night, he heard
his assailants enjoying themselves in the hotel room. They
would pull him out when someone needed to use the bathroom and
force him back in when finished. During this time, they
threatened to kill the victim by tying him up and burning him
alive inside his car.
Later that night, Moore and one accomplice took the debit
card and withdrew another $500 at a different ATM. That night
or early the next morning, Moore gave the victim a Tylenol
because he had been hit in the head. The next day, after
discovering that there was no branch of National City Bank (the
victim’s bank) in Greenville, at Moore’s direction, the group
decided to try a check-cashing store.
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After the victim told Moore that he only had one form of
identification, his driver’s license, and that the bank might
thus become suspicious of the $9,000 check, Moore made the
victim draft a $4,000 check. Moore and his partners told the
victim that if he would cash the check, then they would release
him. Moore stayed at the hotel and directed three accomplices
to take the victim to cash the $4000 check. The accomplices
took the victim to three or four businesses before finally
finding a check cashing store, which they believed would accept
the check.
They sent the victim inside alone to cash the check. As an
incentive to comply, they reminded the victim that they knew
where he lived and told him that if he alerted the police, they
would have someone kill him. Once inside the store, the victim
wrote on his hand “help call police” as a signal to the clerk.
The clerk called the police and allowed the victim to enter the
secure area of the store with her. The police arrived after
about ten minutes and arrested Moore’s accomplices outside the
store.
In their post-arrest statements, the accomplices named
Moore as the leader of their group. The officers noticed
bruises, marks, swelling, and a small laceration on the victim’s
face and called for medical assistance. EMS responded to the
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scene and examined the victim. Once cleared, the victim
declined their offer to transport him to the hospital.
Officers arrested Moore the next day at a motel near the
Economy Inn. At the time of his arrest, Moore dropped a
crumpled up check, which was the $9,000 check they had forced
the victim to make payable to “John Cummings.”
Moore was named in a five-count Superseding Indictment
charging him with carjacking (Count I); extortion (Count II);
bank robbery (Counts III and IV); and attempted robbery of a
check cashing store (Count V). On September 11, 2008, Moore
went to trial and was found guilty on Counts I, II, and III. On
February 11, 2009, the district court sentenced Moore to 480
months in prison and 3 years of supervised release. Judgment
was entered on February 18, 2009, and Moore timely appealed on
February 19, 2009.
II.
Moore appeals his bank-robbery conviction (Count III), for
which he was sentenced to the statutory maximum twenty years.
He argues that there was insufficient evidence to sustain the
conviction because the Government failed to prove the bank was
FDIC insured. The Government concedes this point on appeal and
agrees that Moore’s conviction and sentence on Count III should
be vacated.
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III.
Moore next appeals his conviction for carjacking (Count I).
He contends there was insufficient evidence to support the
jury’s determination that he acted with the requisite intent to
sustain a federal carjacking conviction.
Moore faces a “heavy burden” in contesting the sufficiency
of the evidence supporting a jury verdict. United States v.
Abuelhawa, 523 F.3d 415, 421 (4th Cir. 2008) (citation omitted).
In resolving issues of sufficiency of the evidence, this Court
does not weigh evidence or reassess the fact finder’s assessment
of witness credibility. United States v. Sun, 278 F.3d 302, 313
(4th Cir. 2002). Moore’s jury conviction must be sustained if,
taking the view most favorable to the Government, there is
substantial evidence to support the verdict. Glasser v. United
States, 315 U.S. 60, 80 (1942). Substantial evidence is
evidence that a rational trier of fact could have found adequate
and sufficient to establish the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979). Reversal is reserved for the rare case where the
prosecution’s failure to produce such evidence is clear. United
States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984).
To sustain a conviction for carjacking under 18 U.S.C. §
2219, the Government must prove that the defendant had the
specific intent “to cause death or serious bodily harm.” This
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intent element is conditional: “the Government [must] prove
beyond a reasonable doubt that the defendant would have at least
attempted to seriously harm or kill the driver if that action
had been necessary to complete the taking of the car.” Holloway
v. United States, 526 U.S. 1, 12 (1999). “[A]n empty threat, or
intimidating bluff, . . . standing on its own, is not enough to
satisfy § 2119’s specific intent element.” Id. at 11.
Moore argues there was no evidence that he or any
accomplice — all unarmed — intended to kill or maim the victim
at the time they took his car. He places much emphasis on the
fact that no firearm or other weapon was used in the taking of
the car. However, the plain language of § 2119 makes no mention
of a weapon, but rather requires an intent to kill or cause
serious bodily harm. While the lack of a weapon may be a factor
the jury considers on the issue of intent, there still may be
evidence from which a “rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.”
Jackson, 443 U.S. at 319.
In this case, the Government presented testimony from both
the victim and Moore’s co-defendant that at the moment the
defendants stole the victim’s car, they charged at him, grabbed
both of his arms, and forced him into the back of his car.
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During the carjacking, * Moore punched the victim in the course of
demanding his ATM PIN. A co-defendant testified Moore told the
victim that if he was uncooperative, Moore would kill him.
Further, some defendants threatened to kill the victim if he
refused to give them the money in his possession. As the victim
testified, “they said they will tie me in the car and burn the
car.”
Moore contends there was insufficient evidence of intent.
Rather than intending to harm the victim, he argues, they wanted
the victim alive and well so that he could make an ATM
withdrawal. But Moore’s desire for the victim’s compliance, so
he could transport the victim to multiple locations and steal
his money from various venues, says nothing of what Moore would
have done had the victim at any point resisted the taking of the
car. Moore further contends that he hit the victim only one
time, and he points to the victim’s trial testimony that “I
wasn’t seriously injured but they hit me just to frighten me and
*
The First, Sixth, and Ninth Circuits have held that “the
commission of a carjacking continues at least while the
carjacker maintains control over the victim and [the victim’s]
car.” Ramirez-Burgos v. United States, 313 F. 3d 23, 30 n.9
(1st Cir. 2002); United States v. Vazquez-Rivera, 135 F.3d 172,
178 (1st Cir. 1998); United States v. Cline, 362 F.3d 343, 353
(6th Cir. 2004); United States v. Hicks, 103 F.3d 837, 844 n. 5
(9th Cir. 1996) (reasoning that a carjacking continues until the
victim is permanently separated from her car).
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threaten me many times with my life.” This statement is taken
out of context, however, as the victim also stated, “I was . . .
mentally and physically tortured by them, . . . as well as by
the thought that I may not come alive out of this incident.”
Finally, Moore notes that he provided the victim with Tylenol
while at the hotel, and that he had an accomplice bring the
victim a cup of water when they stopped at Taco Bell. These
supposed acts of caretaking simply reflect Moore’s treatment of
the victim while the victim cooperated; they fail to shed light
on the key question the jury was asked to determine: what Moore
would have done if the victim had resisted the taking of the
car.
Faced with this difficult inquiry, the jury found that
Moore would have killed or seriously injured the victim if he
had resisted Moore’s taking of the car. In the light most
favorable to the Government, Moore’s physical abuse of the
victim, paired with his threat to kill the victim if
uncooperative, provides sufficient evidence for a rational trier
of fact to determine beyond a reasonable doubt that Moore had
the intent required by § 2219.
IV.
At sentencing, the district court applied a three-level
enhancement for bodily injury pursuant to USSG §2B3.1(b)(3)(D)
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and a two-level adjustment for obstruction of justice pursuant
to USSG §3C1.1. Moore maintains these determinations were made
in error.
The district court found Moore to have a combined adjusted
offense level of 42, with a Criminal History Category of I. His
resulting Guidelines range was 360-660 months, and the district
court sentenced Moore to 480 months. Moore’s trial attorney did
not file a sentencing memorandum and did not make written
objections to the Presentence Investigation Report (“PSR”). He
did make an oral objection at sentencing to the enhancement for
use of a minor. When the district court asked Moore whether he
had any objections, he stated: “I still don’t truly understand
how I’m receiving all these enhancements when my co-defendants
didn’t receive so many.” He further expressed displeasure that
his Guidelines range was significantly higher than theirs.
Moore argues that this statement, while lacking detail and
specificity, clearly implicated the many Sentencing Guidelines
enhancements recommended in the PSR. He contends that as a
result, he is entitled to de novo review regarding his current
challenges to the bodily injury and obstruction of justice
enhancements. Moore agreed at sentencing that he had enough
time to discuss his PSR with his attorney, and before the judge
sentenced Moore, Moore told the judge that he had nothing
further to say.
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The lack of a specific objection to these sentencing
determinations “amounts to a waiver” of Moore’s right to
challenge them on appeal, absent plain error. United States v.
Brothers Const. Co. of Ohio, 219 F.3d 300, 320 (4th Cir. 2000).
This Court will only correct plain error if four conditions are
present:
(1) [A]n error, such as deviation from a legal rule;
(2) the error must be plain, meaning obvious or, at a
minimum, clear under current law; (3) the error must
affect substantial rights-in other words, the error
must be so prejudicial as to affect the outcome of the
proceedings in the district court; and, finally,
(4) . . . the error seriously affects the fairness,
integrity or public reputation of judicial
proceedings.
Id. (quoting United States v. Castner, 50 F.3d 1267, 1277 (4th
Cir. 1995)).
A.
Section 2B3.1 of the Guidelines allows a two- to six-level
increase in offense level if the victim of a robbery sustains
bodily injury. The Guidelines suggest that “bodily injury”
warrants a two-level increase, “serious bodily injury” warrants
a four-level increase, and “permanent or life-threatening bodily
injury” warrants a six-level increase. The U.S. Sentencing
Commission clarified “bodily injury” as “any significant injury;
e.g., an injury that is painful and obvious, or is of a type for
which medical attention ordinarily would be sought.” USSG
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§1B1.1, comment. (n.1(B)). “[T]o be ‘significant’ an injury
need not interfere completely with the injured person’s life but
cannot be wholly trivial and, while it need not last for months
or years, must last for some meaningful period.” United States
v. Lancaster, 6 F.3d 208, 209 (4th Cir. 1993) (per curiam).
“Serious bodily injury” is an “injury involving extreme physical
pain or the protracted impairment of a function of a bodily
member, organ, or mental faculty; or requiring medical
intervention such as surgery, hospitalization, or physical
rehabilitation.” USSG §1B1.1, comment. (n.1(L)). The district
court applied a three-level enhancement for bodily injury to the
victim in Moore’s case, for harm falling between “bodily injury”
and “serious bodily injury.” See USSG §2B3.1(b)(3)(D).
The evidence in this case is that Moore punched the victim
once or twice and that the defendants rushed at the victim and
forced him into his car, causing multiple dark bruises on his
face and a laceration above his right eye. The victim
experienced enough pain for Moore to have felt the need to offer
him pain medication. Further, the victim testified, “I was
. . . mentally and physically tortured by them, . . . as well as
by the thought that I may not come alive out of this incident.”
In addition, EMS was ready to take him to the hospital, but he
declined. On this record, the district court did not plainly
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err in applying a three-level bodily-injury enhancement with
respect to Moore’s carjacking conviction (Count I).
B.
Moore also challenges the two-level adjustment for
obstruction of justice. Where “a defendant objects to a
sentencing enhancement resulting from her trial testimony, a
district court must review the evidence and make independent
findings necessary to establish a willful impediment to or
obstruction of justice, or an attempt to do the same, under the
perjury definition we have set out.” United States v. Dunnigan,
507 U.S. 87, 95 (1993). Here, the district court did not make
specific factual findings as to obstruction of justice.
While Moore voiced a general dissatisfaction with the PSR
at his sentencing hearing, he made no specific objection to the
obstruction adjustment. Even if he had, “[a] mere objection to
the finding in the presentence report is not sufficient . . . .
Without an affirmative showing the information is inaccurate,
the court is ‘free to adopt the findings of the [presentence
report] without more specific inquiry or explanation.’” United
States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (quoting
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)). The
district court was thus entitled to adopt the PSR’s findings.
See Fed. R. Crim. P. 32(i)(3)(A) (“At sentencing, the court
. . . may accept any undisputed portion of the presentence
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report as a finding of fact . . . .”). The PSR noted that this
adjustment was proper because Moore made “false statements while
under oath regarding his involvement” in the offense.
During the sentencing hearing, the district court adopted
the Guideline calculations from the PSR, ultimately finding that
Moore was lying as opposed to incorrectly remembering the events
about which he testified. Moore provides no evidence indicating
the PSR misstated his trial testimony. The district court thus
did not plainly err in adopting the PSR’s finding and applying
the two-level obstruction adjustment with respect to Moore’s
carjacking conviction (Count I) and his extortion conviction
(Count II).
V.
For the reasons set forth above, we affirm Moore’s
carjacking conviction (Count I) and sentencing enhancements,
vacate the bank robbery conviction (Count III) and the portion
of his sentence related to it, and remand for resentencing.
Such remand is for the limited purpose of imposing Moore’s
sentence in the absence of his bank robbery conviction.
AFFIRMED IN PART;
VACATED AND REMANDED
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