United States v. Cline

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 26, 2004
• Docket: 02-5966
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Cline No. 02-5966 ELECTRONIC CITATION: 2004 FED App. 0088P (6th Cir.) File Name: 04a0088p.06 Charles P. Wisdom, Jr., Kenneth R. Taylor, Marianna Jackson Clay, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ UNITED STATES OF AMERICA , X ALDRICH, District Judge. This case concerns the Plaintiff-Appellee, - conviction and sentencing of a Kentucky man for carjacking, - - No. 02-5966 possession of firearms while subject to a domestic violence v. - order, and carrying a firearm during a crime of violence. > Because the district court did not abuse its discretion in any , of the matters raised by the appellant, we AFFIRM its PHILLIP CLINE , - Defendant-Appellant. - decision. N I. Background Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville. Defendant Phillip Cline (hereinafter “Cline”) has a long No. 01-00056—Danny C. Reeves, District Judge. history of domestic violence. His wife, Jeana Marcum (hereinafter “Marcum”), has sought protective orders against Submitted: October 24, 2003 him on at least four occasions, and the pair’s last attempt at reconciliation led to the incidents at issue in this case. Decided and Filed: March 26, 2004 In April of 2001, renewed contact between husband and Before: KENNEDY and GIBBONS, Circuit Judges; wife led Marcum to seek an amendment to the domestic ALDRICH, District Judge.* violence order then in place against Cline. That order, entered December 12, 2000 and scheduled to terminate _________________ December 12, 2003, required Cline to stay at least 500 feet away from Marcum and members of her family, not to COUNSEL commit further acts of domestic violence, and not to dispose of or destroy jointly held property. Pursuant to Marcum’s ON BRIEF: Stephen W. Owens, STEPHEN W. OWENS claim that she and Cline had “worked everything out,” the LAW OFFICE, Pikeville, Kentucky, for Appellant. Martin County District Court amended the prior order, removing the “stay away” and “no contact” provisions. All other provisions of the December 2000 order remained in force. * The Honorab le Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by designation.

1 No. 02-5966 United States v. Cline 3 4 United States v. Cline No. 02-5966

Relations between Cline and Marcum quickly deteriorated, The three pursuers caught up with Smith and Marcum “on however, and on April 19, 2001, Marcum sought to reinstate a nearby road,” and mayhem ensued. Cline pummeled the “no contact” and “stay away” provisions, citing new Smith1, leaving him unconscious in the road, and then seized instances of abuse. This petition was denied when Marcum Marcum’s car, preventing her from escaping. He beat failed to appear at a hearing on the issue. Marcum in the car, and then sped away, possibly over Smith’s supine figure. (Smith died in the road, but not before being It is clear that Cline possessed and used firearms while the struck by at least one other passing car.) Marcum testified December 2000 order remained in effect. At trial, Marcum that Cline ignored her pleas and protestations, exclaiming testified that she purchased guns in the “summertime” of “you want Luther that bad, you are going to get him, you are 2001, and that she and Cline used them for deer hunting. going to watch me run over him.” J.A. at 176. Pawn broker Mark Jordan testified that Cline pawned a Norinco SKS on August 7, 2001, and that in July of that year Cline then drove Marcum back to DeLong’s trailer. Once he sold several guns to Marcum in the presence of Cline. inside the trailer, Cline exclaimed: “I’ve already killed Luther. You’ve seen too much. Now you are going to die, On August 11, 2001, Cline and Marcum sat drinking beer bitch.” J.A. at 177. He continued to beat Marcum severely, and talking, at the trailer of Okey DeLong in Martin County. cracking three ribs and her skull, inducing swelling in her Also in attendance were Butch Crum, Regina “Tiny” brain, breaking her tailbone, and inflicting several large Newsome, and Newsome’s son, Kenny. Luther Smith arrived bruises. Cline may have succeeded in carrying out his threat while Crum and Newsome were away on a beer run. to kill his wife, had the police not arrived to arrest him. Inexplicably, the tenor of the conversation between Cline On November 15, 2001, a grand jury indicted Cline on and Smith began to change, from “joking around” and charges of carjacking (Count 1), possession of firearms while “kidding around,” to heated and angry. Cline began to direct subject to a domestic violence order (Counts 2 through 5), his anger toward Marcum, threatening to knock her through and using and carrying a firearm during and in relation to a a nearby wood shed and the like. Fearing for her safety, crime of violence (Count 6), in violation of 18 U.S.C. Marcum instructed Kenny to survey the proceedings, and to §§ 2119, 922(g)(8)(B), and 924(c), respectively. During call 911 or the sheriff’s office if Cline became violent. Cline pretrial proceedings, Cline moved to dismiss Counts 2-5, commenced hitting Marcum all the same, and so Marcum arguing that the “dismissal” of the April 2001 domestic seized the first available opportunity (when Cline went inside violence petition removed any order then in force against him. to use the restroom) to plead with Smith: “I told Luther to In response, the government produced an affidavit from the please help me ... I knew [Cline] was drinking, and I knew he issuing judge, which affirmed that the December 2000 order was going to hurt me.” J.A. at 173. remained in effect after April 2001. The district court thereafter denied Cline’s motion to dismiss, and granted a Smith took Marcum at her word, and departed with her in government motion to bar defense counsel from reasserting his car while Cline was still inside the trailer. Unfortunately, Crum and Newsome soon returned, and offered their vehicle to Cline for use in pursuing his fleeing wife. 1 Luther had left his car vo luntarily, vowing “I’m not afraid of Phillip, and he’s never going to hurt you again.” J.A. at 175. No. 02-5966 United States v. Cline 5 6 United States v. Cline No. 02-5966

this argument at trial. Defense counsel then unsuccessfully prior order. In his affidavit, the Martin County issuing judge moved to sever Counts 1 and 6 from the indictment. supported the government’s interpretation. The case proceeded to trial in February of 2002. A jury Cline cites no law in support of his proposition that convicted Cline of Counts 1 through 5, and found him not accepting the affidavit of a state court judge as evidence of guilty of Count 6, carrying a firearm during and in relation to the status of a DVO violated his right to confront witnesses a crime of violence in violation of 18 U.S.C. § 924(c). Over against him. Cline cannot challenge the affidavit itself defense counsel’s various objections, the district court because his counsel failed to properly preserve the issue for sentenced Cline to 220 months in prison, three years of appellate review. supervised release, and a special assessment of $500. Generally, an appellant cannot raise a claim before the On August 2, 2002, Cline filed a timely notice of appeal. appellate court that was not raised below. In United States v. Bonds, 12 F.3d 540, 569 (6th Cir. 1993), this Court held that II. Discussion a defendant waives his right to challenge the sufficiency of an affidavit when he fails to raise the challenge at the district Cline charges that the district court erred in four respects: court level. Id. at 569. Where a defendant does not challenge (1) by accepting a state court judge’s affidavit as evidence of the evidence before the district court, he must demonstrate the status of a domestic violence order; (2) by granting a that admission of the evidence nonetheless constituted “plain motion in limine barring the defense from challenging the error.” See FED . R. EVID . 103(a)(1) and (d); FED . R. CRIM . P. status of said order at trial; (3) by failing to sever Counts 1 52(b); United States v. Bray, 139 F.3d 1104, 1110 (6th Cir. and 6 from the indictment; and (4) in its various 1998). enhancements of Cline’s sentence. Cline challenges the enhancements of two levels for carjacking, two levels for To establish plain error, Cline must demonstrate that: (1) an making a threat of death during a carjacking, and two levels error occurred; (2) the error was obvious or clear; (3) the error for obstruction of justice. He also alleges that the district affected his substantial rights; and (4) the error seriously court improperly counted past convictions which may have affected the fairness, integrity, or public reputation of the been uncounseled. judicial proceedings. United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998). An error that does not affect a A. The State Judge’s Affidavit defendant’s substantial rights is harmless. See FED . R. CRIM . P. 52(a). Before the district court, Cline argued that he could not be found guilty of possessing firearms while subject to a Here, it is clear that Cline’s substantial rights were not domestic violence order (DVO), because the last order affected. A defendant’s right to confront witnesses at the pre- obtained by his wife had been marked as “dismissed.” The trial stage is substantially weaker than his right to do so at government argued that the “dismissed” order (allowing trial. United States v. Matlock, 415 U.S. 164, 173-75 (1974). contact with Marcum for purposes of an attempted In ruling on the proper interpretation of the DVO, the district reconciliation) was merely a modification of an existing and court was entitled to give the evidence presented such weight valid DVO, and that its dismissal did nothing to revoke the as its judgment and experience counseled. See id. at 175. Again, Cline points to no case in which such conduct was No. 02-5966 United States v. Cline 7 8 United States v. Cline No. 02-5966

held to violate a defendant’s rights under the confrontation 515 U.S. at 525-26 (citations omitted). See also United States clause. v. Craft, 105 F.3d 1123, 1126 (6th Cir. 1997)(quoting previous version of FED . R. CRIM . P. 12(b)); United States v. B. The Motion in Limine Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998) (motion in limine may be used to prevent introduction of evidence Cline next challenges the district court’s grant of the supporting a defense whose elements cannot be established). government’s motion in limine. Cline contends that, because the status of the DVO was an element of the offenses charged In fact, Cline acknowledged that the DVO issue was an in Counts 2 through 5, the district court was required to let the appropriate matter for pretrial resolution. On January 25, jury determine that status. 2002, Cline filed a Motion to Dismiss Counts 2-5 of the indictment, arguing that he “was not under a domestic This court reviews a district court’s decision to exclude violence order at the time of the incident in question.” J.A. at evidence pursuant to a motion in limine for abuse of 103. (The government did not file its motion in limine until discretion. United States v. Phibbs, 999 F.2d 1053, 1078 (6th February 1, in conjunction with its reply to Cline’s motion to Cir. 1993); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, dismiss. J.A. at 105-06.) In denying Cline’s motion, the 141 (1997). A district court abuses its discretion when it district judge properly ruled on his DVO status as a matter of relies on clearly erroneous findings of fact, when it law. J.A. at 108-116; cf. Craft, 105 F.3d at 1126. Cline improperly applies the law, or when it employs an erroneous cannot now complain that the judge was not permitted to do legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608, so, merely because he is unsatisfied with the decision. 615 (6th Cir. 1995). Determining the legal meaning of the DVO did not require No abuse of discretion occurred. While the United States trial of the general issue of guilt on any count and thus did not Supreme Court has consistently reaffirmed its holding that a invade the province of the jury. Cf. Craft, 105 F.3d at 1126; jury must find a defendant guilty beyond a reasonable doubt United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir. of every element of a criminal offense, see, e.g., United States 1986). The jury instructions properly set forth each element v. Gaudin, 515 U.S. 506, 510 (1995), Rule 12(b) of the of 18 U.S.C. §922(g)(8), and the jury was instructed to Federal Rules of Criminal Procedure permits a party to “raise determine whether the government had proved each element by pretrial motion any defense, objection, or request that the beyond a reasonable doubt. Therefore, no abuse of discretion court can determine without a trial of the general issue.” FED . occurred. R. CRIM . P. 12(b). As Chief Justice Rehnquist, concurring in Gaudin, observed: C. The Unsevered Counts mixed questions of law and fact remain the proper Cline next claims that the district court erred in declining to domain of the trial court. Preliminary questions in a trial sever Counts 1 and 6 (carjacking) from Counts 2-5 regarding the admissibility of evidence, the competency (possession of firearms while subject to a DVO), because his of witnesses, the voluntariness of confessions, the possession of the guns was unrelated to the carjacking. The legality of searches and seizures, and the propriety of district court determined that all of the charged offenses were venue, may be decided by the trial court. “acts or transactions connected together or constituting parts of a common scheme or plan” under the version of Federal No. 02-5966 United States v. Cline 9 10 United States v. Cline No. 02-5966

Rule of Criminal Procedure 8(a) then in force.2 We review D. The Sentencing Enhancements the denial of a motion to sever for abuse of discretion. United States v. Jacobs, 244 F.3d 503, 506 (6th Cir. 2001). Cline asserts that the district court erred by: (1) applying a two-level enhancement for committing a carjacking under the Cline’s brief argues that “[t]here was no evidence that United States Sentencing Guidleines § 2B3.1(b)(5); (2) Counts 2, 3, 4 & 5 were part of the same transaction alleged counting past convictions which may have been uncounseled; in Counts 1 & 6, nor that they were part of a common (3) applying a two-level enhancement for obstruction of scheme.” Indeed, the government’s argument that every justice under USSG § 3C1.1; and (4)applying a two-level count “involved domestic violence” against the same person, enhancement for making a threat of death during the and that each count concerns events from “the summer of carjacking under USSG § 2B3.1(b)(2)(F). 1991 ... in the Eastern District of Kentucky,” might seem a difficult fit with the standard set forth in Rule 8(a). “Legal conclusions regarding [application of the sentencing] guidelines are reviewed de novo; however, this Yet Cline fails to establish (or even to argue) that joinder of circuit gives due deference to the district court’s application the six Counts prejudiced him in any way. This omission is of the guidelines to the facts pursuant to 18 U.S.C. fatal to Cline’s position, since Federal Rule of Criminal § 3742(a).” United States v. Smith, 320 F.3d 647, 657 (6th Procedure 14 requires prejudice for an order of separate trials, Cir. 2003) (citing Buford v. United States, 532 U.S. 59 and “an appellant must show that the denial of his motion for (2001)). Factual findings used to determine a defendant’s severance of counts affected his ‘substantial rights’.” United criminal history category are reviewed for clear error. United States v. Cope, 312 F.3d 757,781 (6th Cir. 2002) (citing States v. Wilson, 168 F.3d 916, 922 (6th Cir. 1999). United States v. Chavis, 296 F.3d 450, 461 (6th Cir. 2002)). Three of Cline’s four arguments may be disposed of briefly. Additionally, the district court’s limiting instructions, which asked the jury to separately consider the evidence for 1. Enhancement for Carjacking each count and not to decide Cline’s guilt or innocence on one count based on its decision on another (with the exception of United States Sentencing Guidelines § 2B3.1(b)(5) permits Count 6), minimized any possible prejudice. See Jacobs, 244 a two-level enhancement “[i]f the offense involved F.3d at 507; Cope, 312 F.3d at 781. carjacking.” U.S. SENTENCING GUIDELINES MANUAL § 2B3.1(b)(5) (2003). Carjacking is defined as “the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation.” U.S. SENTENCING GUIDELINES MANUAL § 2B3.1, cmt. n. 1 (2003). Cline argues that the district court’s application of this section constituted impermissible double counting, which 2 Rule 8(a) has since been amended to allow joinder of two or more occurs if “the same aspect of a defendant’s conduct factors offenses where they “are of the same or similar character, or are based on into his sentence in two separate ways,” and neither Congress the same act or transaction, or are connected with or constitute parts of a nor the Sentencing Commission intended to impose multiple common scheme or plan.” F ED . R. C RIM . P. 8(a). No. 02-5966 United States v. Cline 11 12 United States v. Cline No. 02-5966

penalties. United States v. Farrow, 198 F.3d 179, 193-94 (6th The United States Supreme Court rejected a similar Cir. 1999). argument in Parke v. Raley, 506 U.S. 20, 31 (1992), remarking that “[a]t the time the prior conviction at issue in Cline’s only citation in support of this argument is to Burgett was entered, state criminal defendants' federal Farrow, in which we determined that it was impermissible constitutional right to counsel had not yet been recognized, double-counting to employ Farrow’s act of using his vehicle and so it was reasonable to presume that the defendant had as a dangerous weapon both to convict him of aggravated not waived a right he did not possess.” Parke reaffirmed the assault and to enhance his sentence (for “otherwise using” a application of a presumption of regularity to state court dangerous weapon, i.e., the same vehicle). Id. at 195. proceedings, even as to the waiver of counsel, and Cline cites However, Cline fails to note the language in Farrow no precedent to support his contention that said presumption observing that “the Sentencing Guidelines expressly mandate “does not apply in this matter.” double counting under some circumstances through the cumulative application of sentencing adjustments.” Id. at In relying on this presumption to compute Cline’s criminal 194. For example, “Congress has clearly indicated its intent history score, the district court did not err. to punish cumulatively violations of §§ 2119 and 924(c) [the federal carjacking statute and the provision for enhanced 3. Enhancement for Obstruction of Justice punishment for using a dangerous or deadly weapon during a violent crime, respectively].” United States v. Johnson, 22 Cline argues that the district court erred by applying a two- F.3d 106, 108 (6th Cir. 1994) (quoting United States v. level enhancement for obstruction of justice without first Singleton, 16 F.3d 1419, 1425 (5th Cir. 1994)), cited in making the necessary findings. Section 3C1.1 of the Farrow, 198 F.3d at 194. sentencing guidelines provides for such an enhancement where “the defendant willfully obstructed or impeded, or Given this express mandate, the district court properly attempted to obstruct or impede, the administration of justice imposed the enhancement for carjacking. during the course of the investigation, prosecution, or sentencing of the instant offense of conviction,” and the 2. Counting Past Convictions obstructive conduct related to the offense. U.S. SENTENCING GUIDELINES MANUAL § 3C1.1; see also United States v. Cline also argues that the district court erred in computing Dunham, 295 F.3d 605, 609 (6th Cir. 2002). Cline’s criminal history score, by counting past convictions which may have been uncounseled. Cline appears to contend The Commentary to § 3C1.1 provides a “non-exhaustive that, in order to legitimately rely on the convictions listed in list” of examples of conduct which may result in an paragraphs 106, 107, 108, 110, 111, and 113 of the enhancement for obstruction of justice, including presentence investigation report, the district court was “committing, suborning, or attempting to suborn perjury,” required to find that Cline was represented by counsel, or U.S. SENTENCING GUIDELINES MANUAL § 3C1.1, cmt. n. 4(b) explicitly waived his right to counsel, in each case. Cline (2003), and “providing materially false information to a judge cites Burgett v. Texas, 389 U.S. 109 (1967) for the principle or magistrate,” id., n. 4(f). The Commentary defines as that “[p]resuming waiver of counsel from a silent record is “material” any “information that, if believed, would tend to impermissible.” Id. at 114-15. influence or affect the issue under determination,” id., n. 6. The Commentary also cautions that No. 02-5966 United States v. Cline 13 14 United States v. Cline No. 02-5966

[i]n applying this provision in respect to alleged false Court upheld enhancements for obstruction based on similar testimony or statements by the defendant, the court perjurious testimony. The district court did not abuse its should be cognizant that inaccurate testimony or discretion in this case. statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate 4. “Threat of Death” During the Carjacking testimony or statements necessarily reflect a willful attempt to obstruct justice. The most difficult question posed by Cline’s appeal involves the propriety of an enhancement for making a threat Id., n. 2. of death during the carjacking, under § 2B3.1(b)(2)(F). Section 2B3.1 of the Guidelines allow enhancement “if a The district court in this case identified several areas of threat of death was made” during a robbery. U.S. perjurious testimony by Cline, including: SENTENCING GUIDELINES MANUAL § 2B3.1(b)(2)(F). Cline contends that “any threats were made after the taking of the Cline’s statement under oath that he did not drive the car vehicle had been accomplished.” Appellant’s Br. at 9. away, that [Marcum] drove the car and he was invited along with her ... that he went up the coal mine road to As the district court correctly observed, a vote to convict get away from Luther Smith when Luther returned ... necessarily implies that the jury believed Marcum’s [and] that he didn’t want to have a further confrontation description of the events leading up to the apprehension of with him. Cline by the police. Marcum’s testimony was that she regained consciousness upon arrival at DeLong’s trailer, J.A. at 225-26. The district court explicitly found that these “[a]nd we went in the house, and no one was there.” J.A. at statements constituted “sufficient testimony in evidence to 177. Asked “what happened next,” Marcum responded: support [the enhancement for] obstruction of justice.” J.A. at 227. Because “the jury had to disbelieve [Cline] entirely to [Cline] punched me and knocked me over the kitchen convict him,” J.A. at 225, the court found that the obstructive table. And I got back up, and he punched me again. conduct was sufficiently related to the offense of conviction. That’s when he chipped my right front tooth. And then he told me that I had seen too much and [his] exact Cline challenges this finding by reference to United States words were, “I’ve already killed Luther. You’ve seen too v. Tackett, 193 F.3d 880, 886-87 (6th Cir. 1999), charging much. Now you are going to die, bitch.” that Tackett requires a sentencing judge to specify particular elements of “substantial interference.” Because Tackett Id. From this, it is clear that the threat of death in question3 addressed the proper procedure for sentencing under occurred after Cline and Marcum returned to DeLong’s trailer Guidelines § 2J1.2(b), which applies to convictions for and exited the purloined vehicle. Enhancement for this threat perjury, rather than § 3C1.1, it is of little guidance here. under § 2B3.1(b)(2)(F) would require a finding that it was made “during” the robbery/carjacking, i.e. that the act of The facts at bar bear a closer likeness to United States v. Paul, 57 Fed. Appx. 597, 612, 2003 WL 173059, at *14 (6th Cir. 2003) and United States v. Miller, 45 Fed. Appx. 359, 3 364, 2002 WL 1894647, at *4-5 (6th Cir. 2002), in which this The government does not seek to justify this enhancement based on any threats made to or regarding the owner of the vehicle, Luther Smith. No. 02-5966 United States v. Cline 15 16 United States v. Cline No. 02-5966

carjacking did not terminate when Cline and Marcum left the intent4 and accords with that circuit’s “interpretation of vehicle. sentencing enhancement regimes generally.” Vazquez-Rivera, 135 F.3d at 178. Courts have arrived at similar conclusions Determining the duration of a carjacking has proved a in measuring the duration of carjacking for purposes of mens thorny task for the federal courts. In United States v. rea. See United States v. Lebron-Cepeda, 324 F.3d 52, 62 Vazquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998), the First (1st Cir. 2003)(Howard, J., concurring); United States v. Circuit acknowledged the “the not insubstantial problem of Jones, 2003 U.S.Dist. LEXIS 9933 (E.D.Pa. 2003)(adopting delineating the precise temporal limits of the crime of reasoning of Howard, J., on the issue “of the length or carjacking.” And while that court opined that it “need not definition of taking when there’s an extended carjacking provide a comprehensive answer to this problem,” it involving the continued presence of the victim.”) proceeded to uphold an enhancement for serious bodily injury where the defendant used a firearm first to obtain possession Similarly, the Ninth Circuit has reasoned that a carjacking of the victim’s car, and then “to intimidate her immediately continues until the victim is “permanently separated from her prior to raping her.” Id. Although the rape occurred outside car.” United States v. Hicks, 103 F.3d 837, 844 n.5 (9th Cir. of the vehicle, the court held that “the injuries covered are not 1996). The District Court of Puerto Rico has upheld an limited to those resulting from the ‘taking’ of a vehicle, but enhancement for serious bodily injury where a rape took place also include those caused by the carjacker at any point during in an apartment, but the defendant “was still in full control of his or her retention of the vehicle.” Id. (citing United States the carjacked vehicle, as he retained the keys to the car, had v. Cruz, 106 F.3d 1134, 1137 (3rd Cir. 1997) (holding that a a victim in its trunk, and the owner under his command.” woman raped during a carjacking was a “victim” of the United States v. Gonzalez-Mercado, 239 F.Supp.2d 148, 150 carjacking for sentencing purposes; court may “look at all the (D. P.R. 2002). conduct underlying the offense of the conviction”)). In accord with this well-supported approach, we do not find In Ramirez-Burgos v. United States, 313 F.3d 23, 30 n.9 that the district court erred in applying the enhancement for (1st. Cir 2002), the First Circuit reaffirmed, “without Cline’s threat of death. At the time of the threat, Cline had hesitation, that the commission of a carjacking continues at control over the victim of the carjacking, and had left for dead least while the carjacker maintains control over the victim and the owner of the vehicle. Although Marcum did not testify as her car.” The court concluded that rape of the victim to whether Cline retained the keys to the car, the district court “resulted” from the carjacking, because “the rape, like the was justified in finding that he had not permanently separated earlier brandishing of the gun, provided the intimidation by her from the vehicle. As with prior efforts to address this which the carjackers extended their control of the victim and issue, we need not draw a precise line demarcating the the automobile.” Id. at 30. termination of any and all carjackings. It will suffice to hold that the carjacking persisted at least until further dissipation The First Circuit’s decision to consider for purposes of of the indicia of Cline’s control over the vehicle. We will not sentencing all acts occurring during a defendant’s control of the seized vehicle represents an effort to effectuate legislative 4 The opinion in Vazq uez-Rivera cites the Anti Car Theft Act, Pub. L. No. 102-519, reprinted in 1992 U.S.C.A.A.N. 2847, at 1865. 135 F.3d at 178. No. 02-5966 United States v. Cline 17

reach a different result merely because the arrival of police denied Cline the opportunity to flee in the stolen car (as in Vazquez-Rivera) or to return it to the victim (as in Gonzalez- Mercado). III. Conclusion For the foregoing reasons, the decision of the district court is AFFIRMED in all respects.