United States v. Pendleton ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4014
RICKY VINCENT PENDLETON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-96-1)
Submitted: September 30, 1997
Decided: November 18, 1997
Before HALL, WILKINS, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Stephen D. Herndon, Wheeling, West Virginia, for Appellant. Wil-
liam D. Wilmoth, United States Attorney, Paul T. Camilletti, Assis-
tant United States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Ricky Vincent Pendleton appeals from his conviction and sentence
imposed for carjacking in violation of 18 U.S.C.A.§ 2119 (West
1994 & Supp. 1997). We affirm.
Pendleton contends that the district court erred in admitting evi-
dence of his companion's flight in violation of the hearsay rule. We
conclude that this flight to escape prosecution does not constitute a
statement sufficient to invoke the hearsay rule. Further, even if this
action did constitute a statement and its admission therefore violated
the hearsay rule, we believe that such evidence was merely cumula-
tive of the evidence of Pendleton's own flight, and therefore its
admission constituted no more than harmless error.
Pendleton next asserts that there was insufficient evidence of inter-
state transportation to satisfy the jurisdictional requirement of the car-
jacking statute. The evidence adduced at trial demonstrated that the
victim of the offense had driven the car out of state on several occa-
sions. Additionally, the district court took judicial notice of the fact
that no cars are manufactured in West Virginia and thus any car
which was found within the state must have been transported through
interstate commerce. We agree that these facts are sufficient to satisfy
the statutory requirement and therefore find no error. See United
States v. Newton, 65 F.3d 810, 811-12 (9th Cir. 1995) (finding two
out of state recreational trips sufficient to satisfy interstate commerce
requirement), cert. denied, 116 S. Ct. 965 (1996).
Next, Pendleton argues that the district court committed impermis-
sible double counting when it enhanced his sentence for both carjack-
ing under U.S. Sentencing Guidelines Manual§ 2B3.1(b)(1)(B)
(1996), and making an express threat of death under U.S.S.G.
§ 2B3.1(b)(2)(F). We disagree. There is a sufficient degree of differ-
ence between the use of force and violence or intimidation, as
contemplated by the carjacking statute and enhancement, and making
an express threat of death, as contemplated by U.S.S.G.
§ 2B3.1(b)(2)(F). Pendleton's conduct, which consisted of the violent
beating of his victim, returning his victim to the car, shouting at him
when he regained consciousness, and finally dumping him in a remote
location, went beyond the base conduct encompassed by U.S.S.G.
§ 2B3.1(b)(1)(B), and satisfied the requirement for enhancement
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under U.S.S.G. § 2B3.1(b)(2)(F). See United States v. Hudson, 53
F.3d 744, 749 (6th Cir.) (addressing whether enhancement for bran-
dishing firearm constitutes double counting where possession was ele-
ment of offense--armed carjacking--and stating that "a carjacking
accomplished with a gun hidden in a pocket, and carjacking accom-
plished by pointing a shotgun at a victim for some period of time and
threatening to `blow him in two,' . . . are qualitatively different . . .
[and] the sentences for them may properly reflect that difference"),
cert. denied, 116 S. Ct. 235 (1995); see also U.S.S.G. § 2B3.1, com-
ment. (n.6) (the "express threat of death" enhancement is intended to
provide an increased offense level when the offender engages in "con-
duct that would instill in a person, who is a victim of the offense, sig-
nificantly greater fear that than necessary to constitute an element of
the offense"). We therefore find no error.
Finally, Pendleton argues that his receipt of an enhancement for
express threat of death under U.S.S.G. § 2B3.1(b)(2)(F) and for inflic-
tion of permanent or life threatening bodily injury under U.S.S.G.
§ 2B3.1(b)(3)(C) constitutes impermissible double counting because
they were both based upon the same conduct. Because Pendleton
raises this argument for the first time on appeal, we review for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993). This
Court has held that the same conduct may be used for enhancements
under more than one guideline unless such double counting is
expressly forbidden by the guidelines. See United States v. Crawford,
18 F.3d 1173, 1179-80 (4th Cir.), cert. denied , 513 U.S. 860 (1994).
There is no express prohibition in the guidelines against making an
enhancement for bodily injury under § 2B3.1(b)(3)(C) and an adjust-
ment for an express threat of death under § 2B3.1(b)(2)(F). We there-
fore find that application of both enhancements does not constitute
plain error.
Accordingly, we affirm Pendleton'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 argu-
ment would not aid the decisional process.
AFFIRMED
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