UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-60863
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHERON EDWARDS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
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October 26, 2000
Before WOOD*, DAVIS, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Primarily at issue is whether the armed robbery of the keys to
a vehicle from its owner, only 15 feet from the vehicle,
constitutes taking the vehicle “from the person or presence” of the
victim, within the meaning of the federal carjacking statute, 18
U.S.C. § 2119. Sheron Edwards raises this issue, as well as
several others, in appealing his conviction and sentence for
carjacking and use of a firearm during a crime of violence. We
AFFIRM.
I.
*
Circuit Judge of the Seventh Circuit, sitting by designation.
Early on 15 March 1999, at approximately 12:30 a.m., Kenneth
Burns returned to his residence in Starkville, Mississippi. After
parking his vehicle in the parking lot, he noticed someone — whom
he later identified as Edwards — walking toward him. Burns exited
his vehicle, locked it, put the keys in his pocket, and started
walking to his apartment. Edwards approached Burns and asked for
directions to the Mississippi State University campus. (Burns knew
he was in trouble; the campus was only two blocks from Burns’
apartment.) After Burns gave Edwards the directions, Edwards
pulled a gun, held it to Burns’ chest, and demanded his keys and
wallet.
Burns threw his keys on the ground. Edwards ordered Burns to
get on his knees. After Burns did so, Edwards struck Burns on the
back of the head with the gun, pulling the trigger simultaneously.
Believing he had been shot in the back of the head, because his
body was numb and blood was coming from his mouth, Burns fell face-
first to the ground, and pretended to be dead. Edwards took Burns’
wallet from his back pocket, and retrieved Burns’ keys from the
ground where Burns had thrown them.
Using the keys, Edwards drove away in Burns’ vehicle. Burns
testified at trial that the armed robbery took place on the
sidewalk off the parking lot, about 15 feet from where his vehicle
was parked.
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Burns ran to a nearby house, and the police were summoned.
After Burns described the robbery to officers, they drove him to
the scene of an automobile accident. Burns’ vehicle had been
involved in the accident; and, at the scene, he identified Edwards
as his assailant.
Edwards was charged with carjacking, causing “serious bodily
injury”, in violation of 18 U.S.C. § 2119, and use of a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c). A
jury found Edwards guilty on both counts. Departing upward from
the Sentencing Guidelines range, the district court sentenced
Edwards to consecutive 120-month sentences for each conviction.
II.
Edwards challenges the sufficiency of the evidence for his
carjacking conviction, claiming the Government failed to prove he
took the vehicle from Burns’ “person or presence” as required by §
2119. In addition, he contends: § 2119 is unconstitutionally
vague; the evidence was insufficient to prove Burns sustained
“serious bodily injury” under 18 U.S.C. § 2119(2) (sentence
enhanced for serious bodily injury); and the district court erred
by denying his motion to suppress identification evidence, refusing
to order that his sentence run concurrently with any state sentence
to be imposed, and departing upward.
Only the first issue — § 2119’s “person or presence” element
— requires discussion. The remaining issues are without merit.
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The carjacking statute proscribes taking a motor vehicle “from
the person or presence of another by force and violence or by
intimidation”. 18 U.S.C. § 2119 (emphasis added). Edwards
contends that the evidence is insufficient to prove he took Burns’
vehicle from his “person or presence ... by force and violence or
by intimidation”, because Burns was not in the vehicle, and he only
took Burns’ keys from his “person or presence”.
Edwards presented this issue in pre- and post-verdict motions
for judgment of acquittal. Accordingly, in considering his
sufficiency challenge, we review the evidence in the light most
favorable to the verdict, to determine whether any reasonable trier
of fact could have found that the evidence established guilt beyond
a reasonable doubt. E.g., United States v. Martinez, 975 F.2d 159,
160-61 (5th Cir. 1992), cert. denied, 507 U.S. 943 (1993). Of
particular importance to the case at hand is that “[a]ll reasonable
inferences from the evidence must be construed in favor of the jury
verdict”. Id. at 161.
Our court has not addressed § 2119’s “person or presence”
element. “Presence” is not defined by the statute. No authority
need be cited for the requirement to apply the plain meaning of the
words used in a statute. But, the dictionary definition of
“presence” does not provide the requisite certainty. WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 1793 (1986) defines “presence” as “the part
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of space within one’s ken, call, or influence: the vicinity of or
the area immediately near one”.
It is quite arguable that, under this definition, Burns’
vehicle, being only 15 feet (approximately five or six steps) away
from him, was in his “presence” because it was, in a relative
sense, within his “influence” or in his “vicinity”. More
certainty, however, is required.
An alternative source for construing the statute, legislative
history, does not address this issue. United States v. Kimble, 178
F.3d 1163, 1166-67 (11th Cir. 1999), cert. denied, ___ U.S. ___,
120 S. Ct. 805, 806 (2000). In addition to the holding by the
Eleventh Circuit in Kimble, discussed infra, the issue has been
addressed by two other circuits.
In United States v. Lake, 150 F.3d 269 (3d Cir. 1998), cert.
denied, 525 U.S. 1088 (1999), the Third Circuit rejected a
contention similar to Edwards’. Lake took the victim’s keys at
gunpoint; ran up a steep path to the road, where the victim’s car
was parked; and drove it away. Id. at 270-72. The victim pursued
Lake, but did not reach him in time to prevent the vehicle theft.
Id. at 272-73.
Lake claimed the evidence was insufficient to prove he took
the vehicle from the victim’s “person or presence”, because, when
he took her keys, the victim could neither see nor touch her
vehicle. Id. at 272. The court observed: “The carjacking
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statute’s requirement that the vehicle be taken ‘from the person or
presence of the victim’ ‘tracks the language used in other federal
robbery statutes’”. Id. at 272 (citing 18 U.S.C. §§ 2111, 2113,
2118; internal quotation marks and other citations omitted).
Under those statutes, “‘property is in the presence of a
person if it is so within his reach, observation or control, that
he could if not overcome by violence or prevented by fear, retain
his possession of it’”. Id. at 272 (emphasis added) (quoting
United States v. Burns, 701 F.2d 840, 843 (9th Cir.) (affirming
conviction for violation of 18 U.S.C. § 2111, proscribing robbery
committed within territorial jurisdiction of United States, where
victim’s car was taken after he was robbed of his keys at gunpoint
while inside a nearby store), cert. denied, 462 U.S. 1137 (1983));
see also Norris v. United States, 152 F.2d 808, 809 (5th Cir.)
(“Robbery in its usual and ordinary sense, and as used in [former
18 U.S.C. § 99, now 18 U.S.C. § 2112, proscribing robbery of
personal property belonging to the United States] means the
felonious taking of property from the person of another by violence
or by putting him in fear. A felonious taking in his presence is
a taking from the person when it is done with violence and against
his will.” (emphasis added)), cert. denied, 328 U.S. 850 (1946).
Applying the definition used for federal robbery statutes, the
Third Circuit held: there was evidence from which a rational jury
could have inferred that, because she was fearful, the victim
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hesitated before pursuing Lake; and, had she not so hesitated, she
could have prevented the theft of her car. 150 F.3d at 273.
Chief Judge Becker dissented, id. at 275-76, stating he “would
join an opinion upholding Lake’s conviction for ‘keyjacking,’ or
for both key robbery and grand larceny”, but could not agree Lake
had taken the vehicle from the victim’s “person or presence”. Id.
at 275. He rejected the majority’s view of “person or presence”,
maintaining it was contrary to the plain meaning of “presence”.
Id. (noting the above-discussed dictionary definition: “the
vicinity of or the area immediately near one”). He also disagreed
with the majority’s emphasis on what the victim might have done,
had she not been afraid. Id. at 275-76. He reasoned that, if the
relevant inquiry was what the victim might have done but for fear,
the fact that her vehicle was nearby was irrelevant to the
majority’s approach. Id. at 276.
In Kimble, the Eleventh Circuit adopted the Third Circuit’s
definition of “person or presence”. While robbing a restaurant,
defendants held the manager at gunpoint and demanded the keys to
his vehicle, which was parked outside the restaurant. 178 F.3d at
1164. They then used the vehicle to escape. Id.
The Eleventh Circuit held that the victim was sufficiently
near his vehicle when the defendants robbed him of it to satisfy
the “person or presence” requirement, because, had the victim “not
been in fear for his safety, he could have reached the car and
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prevented its taking”. Id. at 1168. The court rejected the view
in the Lake dissent that the vehicle’s proximity to the victim was
irrelevant, stating:
[B]ecause the statute explicitly requires the
car to be within the victim’s ‘person or
presence’ and presence requires an unspecified
but nevertheless undeniable proximity,
nearness to the vehicle is a relevant
criterion under § 2119 and must be evaluated
when determining guilt or innocence.
Id. at 1168 n.1 (emphasis added).
The Tenth Circuit has also applied the same definition of
“person or presence” to § 2119. See United States v. Moore, 198
F.3d 793, 796-97 (10th Cir. 1999), cert. denied, ___ U.S. ___, 120
S. Ct. 1693 (2000). The court rejected defendant’s challenge to
the sufficiency of the evidence, holding that defendant took the
vehicle from the victim’s “person or presence” when he took the
keys to her vehicle after tying her up inside a bank during a
robbery, and left the scene in her vehicle, which was parked
outside the bank. Id. at 794-95, 797. The court stated:
A reasonable jury could have found that the
victim ... could have prevented the taking of
her vehicle had she not been fearful of the
defendant. The keys to the vehicle were in
[the victim’s] immediate control and had she
not been under the control of the defendant
and fearful for her life, she could have
easily walked out the door to the parking lot
and driven away in her car, thus preventing
the defendant from taking it.
Id. at 797 (emphasis added).
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We agree with the Eleventh Circuit that “this interpretation
of ‘person or presence’ from the robbery statutes conforms with
both the language and the purpose of § 2119”. Kimble, 178 F.3d at
1167. As that court noted, enactment of the carjacking statute
followed “a rash of car robberies where the victims were either
forced from their cars or robbed just prior to getting into the
vehicles”. Id. “Under this interpretation, the victim must be
sufficiently near to the vehicle for it to be within reach,
inspection, or control and, absent threat or intimidation, to be
able to maintain control of it”. Id. at 1168. “For a car to be
within one’s reach or control, it must be accessible.” Id.
Applying this interpretation to the facts at hand, the
evidence was sufficient to support a reasonable jury finding that
Edwards took Burns’ vehicle from his “person or presence ... by
force and violence”. See 18 U.S.C. § 2119. Burns, who had just
parked and exited his vehicle, was only 15 feet away from it when
Edwards forcibly took the vehicle’s keys from the ground where
Burns had thrown them at the inception of the armed robbery. After
having been struck on the head by Edwards, who simultaneously
discharged his gun, causing Burns to believe he had been shot,
Burns pretended to be dead. The jury reasonably could have
inferred that, had Burns not been in fear for his safety (a most
understandable reaction to the circumstances), he could have
quickly reached his vehicle and prevented Edwards from taking it.
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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