                         NOT RECOMMENDED FOR PUBLICATION

                                     File Name: 20a0376n.06

                                           No. 19-1603

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

  UNITED STATES OF AMERICA,                                                          FILED
                                                      )                        Jun 24, 2020
         Plaintiff-Appellee,                          )                    DEBORAH S. HUNT, Clerk
                                                      )
                  v.                                  )
                                                      )     ON APPEAL FROM THE UNITED
  KENNETH GARDNER,                                    )     STATES DISTRICT COURT FOR
                                                      )     THE EASTERN DISTRICT OF
         Defendant-Appellant.                         )     MICHIGAN
                                                      )
                                                      )

Before: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.

        ALICE M. BATCHELDER, Circuit Judge. A jury convicted Kenneth Gardner of

carjacking, attempted carjacking, conspiracy to commit carjacking, and related firearm offenses.

Gardner appeals his conviction, claiming that (1) there was insufficient evidence to support a

verdict of guilty; (2) carjacking does not qualify as a “crime of violence” under 18 U.S.C. § 924(c);

and (3) Congress lacked the constitutional authority to enact § 924(c). We find no merit in any of

these claims and therefore AFFIRM.

                                                 I.

        The conspiracy began at a Detroit strip club in August 2017. Gardner and Damon

Washington were supposed to be working as doormen at the club and decided instead to rob its

patrons. They hatched a simple plan: Gardner would rob the strip club patrons at gunpoint while

Washington waited in a nearby getaway car. Washington purchased a gun—a pistol with a green

laser sight—and the two began their venture, robbing at least ten people leaving various Detroit

strip clubs.
No. 19-1603, United States v. Gardner


       In September 2017, the scheme evolved. Washington and Gardner joined forces with

Veronica Sharp, a frequent patron of the MGM Grand Casino’s high-limit room, and the three

decided to focus on Detroit’s casino clientele. They devised the “car-bumping” plan, which went

like this: Washington and Sharp would identify a target and call Gardner when the target left the

casino; Gardner, waiting outside in a stolen car, would follow the target and “bump” the target’s

car, causing a fake traffic accident; Gardner would then rob their target at gunpoint; and

Washington and Sharp would arrive in time for the trio to escape with their spoils. The team

proceeded to execute some version of this plan on at least nine different occasions.

       Their first attempt failed. Washington and Sharp identified a man leaving a casino and

Gardner followed him onto the highway. When Gardner bumped the man’s car, he did not pull

over as anticipated, and Gardner abandoned the chase.

       Undeterred, the trio planned their next strike. On September 22, Washington and Sharp

identified Xianhui Wu and his wife as the evening’s victims. When the Wus left the casino in their

Toyota Sienna van, Gardner followed the couple onto the highway in a stolen Jeep Cherokee.

Washington and Sharp trailed behind in Washington’s Dodge Charger.             Washington called

Gardner as they left the casino so the group could communicate during the robbery.

       The Wus drove to their home, which was situated above a restaurant, and a security camera

recorded Gardner as he approached the couple. Gardner pointed the gun with the green laser sight

at the Wus and demanded their money, cell phones, and car keys. The Wus acquiesced, and

Gardner drove away in their Toyota Sienna van. Washington, still on the phone, yelled that

Gardner had “just caught a carjacking case” and directed him to abandon the stolen van. R. 94,

Tr. Jury Trial Volume 7, PageID#: 1775. Washington picked Gardner up, and the trio split the

proceeds from the robbery.




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No. 19-1603, United States v. Gardner


        Two days after the Wu robbery, the team targeted Desean McCullough. This time,

Washington, who was displeased that Gardner had carjacked the Wus, took the lead to show

Gardner “how it was supposed to be done.” R. 93, Tr. Jury Trial Volume 4, PageID#: 1674. When

McCullough and a woman left the nightclub, Washington, who was driving, and Gardner followed

in a stolen vehicle. Sharp trailed behind in Washington’s Dodge Charger. Washington bumped

McCullough’s car and, brandishing his gun, ordered McCullough and the woman to hand over

their belongings. Gardner grabbed the items off the ground; Sharp picked up her coconspirators,

and the trio escaped.

        The next robbery occurred a few days later. Gardner, driving a stolen Dodge Stratus,

bumped a couple’s car and robbed them at gunpoint. The proceeds from this robbery included

only a few dollars and some stolen credit cards. The team used the credit cards to buy gas and

drove to Toledo, Ohio, searching unsuccessfully for another victim. When they returned to Detroit

the next morning, Gardner bumped and robbed Amy Thompson.

        On September 26, the group targeted Lulu Rodriguez.1 Still driving the stolen Dodge

Stratus, Gardner bumped Rodriguez’s Nissan Sentra; she pulled over and Gardner ordered her at

gunpoint to leave her belongings in her car. Gardner drove away in the Nissan Sentra, abandoning

the Dodge Stratus. Washington tried to convince Gardner that carjacking was unnecessary, but

Gardner insisted that he could sell the carjacked vehicles, and Washington relented.

        Although Sharp abandoned the scheme, Washington and Gardner carried on. On

September 29, Washington and Gardner spotted John Falendysz and Vince Gerlando leaving a

casino. Using the Nissan Sentra stolen from Rodriguez, Gardner bumped Falendysz’s Chrysler

300. When Falendysz and Gerlando pulled over, they noticed Gardner’s gun’s laser beam pointing


        1
         Sharp and Washington gave conflicting testimony as to whether Sharp quit the scheme before or after the
Rodriguez robbery.


                                                       3
No. 19-1603, United States v. Gardner


in their direction and handed over their belongings. Gardner jumped in Falendysz’s Chrysler and

drove away.2

        Later, in the early hours of September 30, Washington and Gardner returned to the casino

and targeted Mark Beltarri. As Beltarri left the casino in his Chevrolet Malibu, Gardner followed

in a stolen sedan, and Washington trailed in his Dodge Charger. Gardner bumped Beltarri’s

Chevrolet, and upon exiting his car to inspect the damage, Beltarri saw Gardner’s gun, panicked,

and ran for the driver’s seat. Gardner grabbed the car’s front door, Beltarri resisted, and Gardner

shot at his head, missing by eighteen inches. Beltarri immediately surrendered his valuables and

watched as Gardner drove away in the stolen Chevrolet.

        The surge of carjackings prompted Michigan police to investigate. The security footage

from one of the casinos allowed officers to link the Dodge Charger to Washington and, after

obtaining a warrant, to place a tracking device on Washington’s car. On October 1, officers

established surveillance. They observed Washington and Gardner follow Ann Wiseley as she left

a casino and watched Gardner bump and approach her car. The officers rushed in to stop the

imminent carjacking and Gardner threw his gun under Wiseley’s car and tried to run away. Police

arrested Gardner and recovered the gun, which was loaded with two bullets and equipped with a

green laser sight.

        The grand jury indicted Gardner on one count of conspiracy to commit carjacking, in

violation of 18 U.S.C. § 371; four counts of carjacking and one count of attempted carjacking, in

violation of 18 U.S.C. § 2119; five counts of using, carrying, and brandishing a firearm during and




        2
          When Gardner carjacked the Chrysler, Falendysz still had the car’s key fob in his pocket. So, while Gardner
could drive the Chrysler temporarily, he would not be able to start the car again once he turned it off. Police found
Falendysz’s abandoned car the next day.


                                                         4
No. 19-1603, United States v. Gardner


in relation to the carjacking, in violation of 18 U.S.C. § 924(c); and multiple counts of illegally

possessing a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1).

       A jury convicted Gardner on all counts. The district court denied Gardner’s Federal Rule

of Criminal Procedure 29 motion for judgment of acquittal and sentenced him to thirty-seven years

in prison. Gardner timely appealed.

                                                II.

       Gardner makes several sufficiency-of-the-evidence claims, arguing that the evidence did

not show that he was part of a conspiracy, that he used or carried a firearm, or that he met the

carjacking statute’s specific-intent requirement of intent to cause death or harm. In reviewing

these claims, we examine “the evidence in the light most favorable to the prosecution,” asking

whether “any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

                                                A.

       Gardner claims that the government failed to introduce sufficient evidence to sustain his

conspiracy conviction. The federal conspiracy statute, 18 U.S.C. § 371, requires the government

to show: “(1) that the conspiracy was willfully formed and was existing at or about the time

alleged; (2) that the defendant willfully became a member of the conspiracy; (3) that one of the

conspirators knowingly committed an overt act; and (4) that the overt act was knowingly done in

furtherance of the conspiracy.” United States v. McGahee, 257 F.3d 520, 530 (6th Cir. 2001).

       The government established that the conspirators planned an armed robbery scheme that

evolved into a carjacking conspiracy. Gardner no doubt upped the ante when he carjacked the

Wus without his coconspirators’ assent. But the conspiracy continued, even though Washington




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No. 19-1603, United States v. Gardner


and Sharp knew that Gardner would continue to carjack their victims. Indeed, after the Wu

carjacking, Gardner carjacked four more victims. A rational juror could infer that such conduct

established that each conspirator, even if tacitly, agreed to the evolution of the scheme.

         Gardner complains that there is no evidence proving the willful formation of a conspiracy

because his coconspirators testified that they never planned to carjack their victims. But “[p]roof

of a formal agreement is not necessary; a tacit or material understanding among the parties will

suffice.” United States v. Calvetti, 836 F.3d 654, 668 (6th Cir. 2016) (quoting United States v.

Martinez, 430 F.3d 317, 330 (6th Cir. 2005)). The government established proof of such an

understanding among the coconspirators and, accordingly, Gardner’s first claim fails.

                                                         B.

         Gardner also contends that the evidence does not show that he used or carried a firearm

during and in relation to the carjacking offenses.3 See 18 U.S.C. § 924(c)(1)(A). Four of the

firearm convictions corresponded to the completed carjacking offenses and all of the carjacking

victims—the Wus, Rodriguez, Falendysz, Gerlando, and Beltarri—testified that Gardner

threatened them with a gun when he demanded their vehicles.                         The government therefore

established that Gardner “used” a firearm for purposes of § 924(c). See Bailey v. United States,

516 U.S. 137, 143 (1995), superseded by statute, Bailey Fix Act of 1998, Pub. L. No. 105-386,

112 Stat. 3469, as recognized in Welch v. United States, 136 S. Ct. 1257, 1267 (2016) (explaining




         3
           The government contends that Gardner waived this argument by failing to assert it in his motion for a
judgment of acquittal. But Gardner generally challenged the sufficiency of the evidence as to all of the charged
offenses, albeit highlighting specific aspects of his claim. He therefore preserved the argument. See United States v.
Love, 553 F. App’x 548, 553 (6th Cir. 2014).


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No. 19-1603, United States v. Gardner


that a conviction for “use” of a firearm requires evidence that the firearm was an “operative factor

in relation to the predicate offense”).4

        The government also showed that Gardner “carried” a firearm during the attempted

carjacking. See Muscarello v. United States, 524 U.S. 125, 136–37 (1998) (broadly interpreting §

924(c)’s carry provision). Police officers recovered Gardner’s loaded gun after he threw it under

Wiseley’s car. That is enough to sustain the conviction. Gardner’s arguments to the contrary

simply ignore the overwhelming evidence against him.

                                                       C.

        Gardner’s final sufficiency-of-the-evidence challenge is premised on the federal carjacking

statute’s specific-intent requirement, see 18 U.S.C. § 2119, which requires proof that the

defendant, when taking a vehicle, had the “intent to cause death or serious bodily harm.” See

United States v. Mack, 729 F.3d 594, 603–04 (6th Cir. 2013). The government establishes intent

if it shows that the defendant possessed “conditional intent” to kill or seriously harm a resisting

carjacking victim, “even if the victim did not in fact resist and no attempts to inflict such harm

were made.” United States v. Adams, 265 F.3d 420, 424 (6th Cir. 2001) (citing Holloway v. United

States, 526 U.S. 1, 10–11 (1999)).

        This court applies a “brandishing-plus” test where the government has not shown that the

defendant physically touched the victim or provided direct proof that the firearm was loaded.

United States v. Fekete, 535 F.3d 471, 480–81 (6th Cir. 2008). In that case, circumstantial

evidence showing that the gun was loaded or evidence indicating the defendant’s conditional intent

may satisfy § 2119’s specific-intent requirement. United States v. Washington, 714 F.3d 962, 968–

69 (6th Cir. 2013).


        4
          The jury separately found that Gardner brandished the gun during the four carjackings and discharged the
firearm during the Beltarri carjacking.


                                                        7
No. 19-1603, United States v. Gardner


         The government presented sufficient evidence from which a jury could reasonably infer

that Gardner would have killed or seriously harmed resisting victims. Washington testified that

he supplied Gardner with a loaded gun, which Gardner used to commit the carjackings. When

police apprehended Gardner on October 2, they found that the gun he had thrown under Wisely’s

car was loaded. This evidence would allow a rational juror to infer that the firearm was loaded

during each carjacking. See id. at 969; Fekete, 535 F.3d at 481–82. Moreover, Beltarri testified

that Gardner had actually shot at him as Gardner robbed him and took his car—devastating proof

not only that the gun was loaded during that carjacking but also of Gardner’s conditional intent to

kill or seriously harm any victim refusing to acquiesce to his commands. This insufficient-

evidence claim therefore fails.5

                                                        III.

         Gardner claims that carjacking does not qualify as a “crime of violence” under § 924(c).

Gardner failed to raise this claim in the district court, and we accordingly review for plain error,

reversing only if there is (1) error, (2) that is plain, and (3) that affects substantial rights. Mack,

729 F.3d at 607.

         Section 924(c)(3)’s “elements” clause6 defines “crime of violence” as a felony that “has as

an element the use, attempted use, or threatened use of physical force against the person or property

of another.” And the federal carjacking statute, 18 U.S.C. § 2119, provides that a person is guilty



          5
            Gardner also suggests that the district court improperly instructed the jury on § 2119’s specific-intent
requirement. He points us to the government’s first proposed jury instruction, which failed to properly state § 2119’s
specific-intent requirement. Gardner raised this objection below, and the government agreed, suggesting a new jury
instruction that properly stated Fekete’s “brandishing-plus” test. See R. 95, PageID#: 1899–1903. The district court
relied on the government’s suggestion and correctly instructed the jury as to § 2119’s intent element. R. 97, PageID#:
2022–23. Hence, the jury instruction that Gardner challenges on appeal was never given to the jury. This argument
is simply frivolous.
         6
           United States v. Davis, 139 S. Ct. 2319, 2323–24 (2019), invalidated § 924(c)(3)’s “residual” clause.
Because carjacking is a crime of violence under § 924(c)’s “elements” clause, we need not analyze Gardner’s residual-
clause argument. See United States v. Jackson, 918 F.3d 467, 485 (6th Cir. 2019).


                                                          8
No. 19-1603, United States v. Gardner


of carjacking when, “with the intent to cause death or serious bodily harm,” a person “takes a

motor vehicle . . . from the person or presence of another by force and violence or by intimidation.”

       Gardner argues that carjacking may be accomplished by nonphysical “intimidation.”

The carjacker might, for example, intimidate through verbal demands or a threatening note. But

we have rejected this argument. United States v. Jackson, 918 F.3d 467, 486 (6th Cir. 2019)

(“[W]e have held that bank robbery by intimidation necessarily involves the use, attempted use, or

threatened use of violent physical force. Because the federal bank robbery and carjacking statutes

use identical language, our precedent requires us to conclude—as have the Fourth, Fifth, and

Eleventh Circuits—that the commission of carjacking by ‘intimidation’ necessarily involves the

threatened use of violent physical force and, therefore, that carjacking constitutes a crime of

violence under § 924(c)'s elements clause.”). Our published holding in Jackson forecloses

Gardner’s claim. See 6 Cir. R. 32.1(b); see also Harper v. United States, 792 F. App’x 385, 389

(6th Cir. 2019); Ovalles v. United States, 905 F.3d 1300, 1304 (11th Cir. 2018) (per curiam),

abrogated on other grounds by Brown v. United States, 942 F.3d 1069, 1072 (11th Cir. 2019) (per

curiam); United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st Cir. 2018); United States v. Evans, 848

F.3d 242, 247–48 (4th Cir. 2017); United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017);

United States v. Jones, 854 F.3d 737, 740 (5th Cir. 2017), abrogated on other grounds by United

States v. Smith, 957 F.3d 590, 592 n.2 (5th Cir. 2020).

                                                IV.

       As a last resort, Gardner asserts a constitutional claim in his reply brief. He argues that

Congress exceeded its powers under the Commerce Clause in enacting § 924(c) because the statute

criminalizes conduct that lacks a jurisdictional nexus to interstate commerce. Cf. United States v.

Lopez, 514 U.S. 549, 562 (1995).




                                                 9
No. 19-1603, United States v. Gardner


       There are two procedural problems with this claim. First, Gardner asserts that it is subject

to de novo review because a “jurisdictional challenge may be raised for the first time on appeal[.]”

Reply Br. at 3. True. But he confuses Congress’s authority to legislate for a court’s subject-matter

jurisdiction. See United States v. Al-Maliki, 787 F.3d 784, 791 (6th Cir. 2015). Second, we do not

entertain arguments raised for the first time in an appellant’s reply brief. Sanborn v. Parker, 629

F.3d 554, 579 (6th Cir. 2010). We therefore do not review the merits of the constitutional claim.

                                                V.

       For the foregoing reasons, we AFFIRM Gardner’s convictions.




                                                10
