United States v. Demery Mclymore

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 2, 2022
• Docket: 20-4460
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4460

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMERY BERNARD MCLYMORE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:18-cr-00148-D-1)

Submitted: February 25, 2022 Decided: March 2, 2022

Before WILKINSON, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Joshua B. Howard, GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant. G. Norman Acker, III, Acting United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Demery Bernard Mclymore appeals his convictions for carjacking, in violation of

18 U.S.C. § 2119, and brandishing a firearm during, in relation to, and in furtherance of

the carjacking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). ∗ On appeal, Mclymore’s sole

challenge is to the sufficiency of the evidence to support his carjacking and attendant

§ 924(c) convictions. Specifically, he argues that the evidence adduced at trial was

insufficient to establish that he had the requisite intent to kill or seriously harm the victims

when he took control of the car. He further argues that, because the carjacking conviction

was not supported by sufficient evidence, it cannot serve as a predicate crime of violence

and, therefore, the § 924(c)(1)(A)(ii) conviction must also be vacated. We affirm.

We review de novo a challenge to the sufficiency of the evidence. United States v.

Bran, 776 F.3d 276, 279 (4th Cir. 2015). In assessing the sufficiency of the evidence, we

determine whether there is substantial evidence to support a conviction when viewed in the

light most favorable to the Government. United States v. Haas, 986 F.3d 467, 477 (4th

Cir.), cert. denied, 142 S. Ct. 292 (2021). “Substantial evidence is evidence that a

reasonable finder of fact could accept as adequate and sufficient to support a conclusion of

a defendant’s guilt beyond a reasonable doubt.” Id. (cleaned up). However, “[i]t is the

responsibility of the jury, not ours, to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” United

∗ Mclymore does not challenge his convictions for possession of a stolen firearm, in violation of 18 U.S.C. §§ 922(j), 924, and being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924.

2 States v. Robinson, 855 F.3d 265, 268 (4th Cir. 2017) (internal quotation marks omitted).

“A defendant who brings a sufficiency challenge bears a heavy burden, as appellate

reversal on grounds of insufficient evidence is confined to cases where the prosecution’s

failure is clear.” United States v. Savage, 885 F.3d 212, 219 (4th Cir. 2018) (internal

quotation marks omitted).

To prove carjacking under 18 U.S.C. § 2119, the Government must establish that

Mclymore “(1) with intent to cause death or serious bodily harm (2) took a motor vehicle

(3) that had been transported, shipped or received in interstate or foreign commerce (4)

from the person or presence of another (5) by force and violence or intimidation.” United

States v. Small, 944 F.3d 490, 498 (4th Cir. 2019) (internal quotation marks omitted).

Mclymore only disputes the sufficiency of the evidence for the first element, namely, that

he acted with intent to cause death or serious bodily harm when he took possession of the

vehicle. In particular, Mclymore argues that his actions established the kind of reckless

desperation and empty threats that do not constitute carjacking, citing United States v.

Bailey, 819 F.3d 92 (4th Cir. 2016), and that the victims’ insouciance after the incident

supports his argument. He contends that, although he made threats and committed violent

acts before and after taking control of the car, there is no evidence that he intended to kill

or seriously harm the driver at the moment he demanded a ride. The Government counters

that the evidence showing that Mclymore brandished a gun, threatened the victims, and

physically assaulted them, sufficiently supports the jury’s verdict.

“Section 2119’s mens rea component, a specific intent requirement, is satisfied

whether the defendant unconditionally or conditionally intended to cause death or serious

3 bodily harm during a carjacking.” Small, 944 F.3d at 498 (cleaned up). To satisfy this

requirement, the Government must show “that ‘at the moment the defendant demanded or

took control over the driver’s automobile the defendant possessed the intent to seriously

harm or kill the driver if necessary to steal the car.’” Id. (quoting Holloway v. United

States, 526 U.S. 1, 12 (1999)) (cleaned up). A defendant’s empty threat or intimidating

bluff during the theft is insufficient to establish specific intent for carjacking, id., but where

defendants “threatened their victims with actual weapons, made affirmative threatening

statements, and/or physically assaulted their victims,” the evidence supports a finding of

such intent, Bailey, 819 F.3d at 97; see Small, 944 F.3d at 499 (finding sufficient evidence

of intent for carjacking when defendant wielded a gun and pointed it at victim while

demanding car keys and other possessions); Robinson, 855 F.3d at 269 (finding sufficient

evidence of intent for carjacking when defendant pointed gun at victim and made verbal

death threat); United States v. Foster, 507 F.3d 233, 247 (4th Cir. 2007) (finding sufficient

evidence of intent for carjacking when defendant held gun to victim’s head and ordered

victim out of car). Viewing the evidence in the light most favorable to the Government,

see Haas, 986 F.3d at 477, and considering the relevant authorities, we conclude that there

is substantial evidence from which the jury could infer Mclymore’s intent to kill or cause

serious harm when he took control of the car.

Mclymore also argues that because there was insufficient evidence to sustain his

carjacking conviction, it cannot serve as a predicate crime of violence to support his

18 U.S.C. § 924(c)(1)(A)(ii) conviction. Because there was sufficient evidence to support

Mclymore’s carjacking conviction and carjacking is a crime of violence, see United States

4 v. Evans, 848 F.3d 242, 244 (4th Cir. 2017) (holding federal carjacking is crime of violence

under § 924(c)’s force clause), the evidence was also sufficient to support Mclymore’s

dependent § 924(c)(1)(A)(ii) conviction.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED