                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4175


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DEMETRIOUS ADONIS MOORE, a/k/a Meechie,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:08-cr-00124-HMH-1)


Argued:   September 23, 2010                 Decided:   November 22, 2010


Before WILKINSON, Circuit Judge, HAMILTON, Senior Circuit Judge,
and Robert J. CONRAD, Jr., Chief United States District Judge
for the Western District of North Carolina, sitting by
designation.


Affirmed in part; vacated and remanded by unpublished per curiam
opinion.


ARGUED: Thomas Edward Vanderbloemen, GALLIVAN, WHITE & BOYD, PA,
Greenville, South Carolina, for Appellant.        William Jacob
Watkins, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville,
South Carolina, for Appellee.     ON BRIEF: Garrett M. Heenan,
CADWALADER, WICKERSHAM & TAFT, LLP, Washington, D.C., for
Appellant. W. Walter Wilkins, United States Attorney, Columbia,
South Carolina, E. Jean Howard, Assistant United States
Attorney, OFFICE OF THE UNITED      STATES   ATTORNEY,   Greenville,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

        Defendant   Demetrious    Moore       gave   an   unfortunate       victim    a

night he will never forget.             For his actions that night, Moore

was convicted of carjacking, extortion, and bank robbery.                            He

now appeals the carjacking and bank robbery convictions, as well

as   the   sentence     imposed   by     the     district    court.         For   the

following reasons, we affirm in part, vacate and remand.



                                         I.

        On September 9, 2007, Defendant Demetrious Moore and two

accomplices accosted a man (“the victim”) in the parking lot of

the victim’s apartment complex.                The episode began around 9:45

p.m.,    when    the   victim   had     just    returned    home     from    evening

prayers.     As he got out of his car, Moore and his accomplices

rushed at the man, held both his arms, and forced him into the

back seat.      They took his wallet, cell phone, and car keys, and

drove him to a nearby ATM.            When the victim resisted disclosing

his ATM PIN, Moore struck him once or twice, and the victim

eventually      capitulated.      The    assailants       withdrew    the    maximum

amount allowed by the machine, $500, and discovered the victim

had a significant balance in his account.

        Moore and his accomplices demanded more money, and when the

victim said he had none on his person, they demanded he write a

check.     They eventually drove back to the victim’s apartment to

                                         3
retrieve his checkbook.                   While there, they stole the victim’s

laptop and checkbooks as the victim waited in the car under the

watch of one of the accomplices.                       They forced him to write out a

check for $9,000 to a “John Cummings.”                           Moore put the check in

his pocket.

        Moore      told     the    victim      that     they    could     not    release       him

because they feared he would call the bank, but that they would

let him go after they cashed the check in the morning.                                   After a

stop    at    Taco    Bell,       Moore     and    his    contingent       blindfolded         the

victim       and    drove    him,     still       in   the     victim’s    vehicle,       to    an

Economy Inn.          They rented a room and forced the victim into the

bathroom.          From the comfort of the bathroom that night, he heard

his    assailants         enjoying       themselves       in    the    hotel     room.      They

would pull him out when someone needed to use the bathroom and

force    him       back     in    when    finished.            During     this    time,     they

threatened to kill the victim by tying him up and burning him

alive inside his car.

       Later that night, Moore and one accomplice took the debit

card and withdrew another $500 at a different ATM.                                 That night

or    early     the   next        morning,     Moore     gave    the     victim    a     Tylenol

because      he     had   been     hit    in   the      head.      The    next    day,     after

discovering that there was no branch of National City Bank (the

victim’s bank) in Greenville, at Moore’s direction, the group

decided to try a check-cashing store.

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       After the victim told Moore that he only had one form of

identification, his driver’s license, and that the bank might

thus    become    suspicious         of   the      $9,000   check,    Moore     made   the

victim draft a $4,000 check.                    Moore and his partners told the

victim that if he would cash the check, then they would release

him.     Moore stayed at the hotel and directed three accomplices

to take the victim to cash the $4000 check.                           The accomplices

took    the    victim   to     three      or    four   businesses      before    finally

finding a check cashing store, which they believed would accept

the check.

       They sent the victim inside alone to cash the check.                        As an

incentive to comply, they reminded the victim that they knew

where he lived and told him that if he alerted the police, they

would have someone kill him.                   Once inside the store, the victim

wrote on his hand “help call police” as a signal to the clerk.

The clerk called the police and allowed the victim to enter the

secure area of the store with her.                      The police arrived after

about ten minutes and arrested Moore’s accomplices outside the

store.

       In     their   post-arrest         statements,       the    accomplices     named

Moore    as    the    leader    of    their        group.    The     officers    noticed

bruises, marks, swelling, and a small laceration on the victim’s

face and called for medical assistance.                       EMS responded to the



                                               5
scene     and   examined       the    victim.           Once    cleared,     the   victim

declined their offer to transport him to the hospital.

     Officers arrested Moore the next day at a motel near the

Economy    Inn.       At   the       time   of    his    arrest,     Moore    dropped   a

crumpled up check, which was the $9,000 check they had forced

the victim to make payable to “John Cummings.”

     Moore      was    named     in    a    five-count         Superseding    Indictment

charging him with carjacking (Count I); extortion (Count II);

bank robbery (Counts III and IV); and attempted robbery of a

check cashing store (Count V).                    On September 11, 2008, Moore

went to trial and was found guilty on Counts I, II, and III.                            On

February 11, 2009, the district court sentenced Moore to 480

months in prison and 3 years of supervised release.                             Judgment

was entered on February 18, 2009, and Moore timely appealed on

February 19, 2009.



                                            II.

     Moore appeals his bank-robbery conviction (Count III), for

which he was sentenced to the statutory maximum twenty years.

He argues that there was insufficient evidence to sustain the

conviction because the Government failed to prove the bank was

FDIC insured.         The Government concedes this point on appeal and

agrees that Moore’s conviction and sentence on Count III should

be vacated.

                                             6
                                        III.

      Moore next appeals his conviction for carjacking (Count I).

He   contends     there    was    insufficient      evidence    to   support     the

jury’s determination that he acted with the requisite intent to

sustain a federal carjacking conviction.

      Moore faces a “heavy burden” in contesting the sufficiency

of the evidence supporting a jury verdict.                     United States v.

Abuelhawa, 523 F.3d 415, 421 (4th Cir. 2008) (citation omitted).

In resolving issues of sufficiency of the evidence, this Court

does not weigh evidence or reassess the fact finder’s assessment

of witness credibility.           United States v. Sun, 278 F.3d 302, 313

(4th Cir. 2002). Moore’s jury conviction must be sustained if,

taking    the    view    most    favorable     to   the   Government,    there    is

substantial evidence to support the verdict.                   Glasser v. United

States,    315    U.S.    60,    80    (1942).        Substantial    evidence     is

evidence that a rational trier of fact could have found adequate

and sufficient to establish the essential elements of the crime

beyond a reasonable doubt.             Jackson v. Virginia, 443 U.S. 307,

319 (1979).       Reversal is reserved for the rare case where the

prosecution’s failure to produce such evidence is clear.                   United

States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984).

      To sustain a conviction for carjacking under 18 U.S.C. §

2219,    the    Government      must   prove   that    the   defendant   had     the

specific intent “to cause death or serious bodily harm.”                        This

                                          7
intent   element      is   conditional:       “the   Government       [must]      prove

beyond a reasonable doubt that the defendant would have at least

attempted to seriously harm or kill the driver if that action

had been necessary to complete the taking of the car.”                       Holloway

v. United States, 526 U.S. 1, 12 (1999).               “[A]n empty threat, or

intimidating bluff, . . . standing on its own, is not enough to

satisfy § 2119’s specific intent element.”                  Id. at 11.

      Moore    argues      there    was   no     evidence      that     he   or    any

accomplice — all unarmed — intended to kill or maim the victim

at the time they took his car.                He places much emphasis on the

fact that no firearm or other weapon was used in the taking of

the car.      However, the plain language of § 2119 makes no mention

of a weapon, but rather requires an intent to kill or cause

serious bodily harm.        While the lack of a weapon may be a factor

the jury considers on the issue of intent, there still may be

evidence from which a “rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 319.

      In this case, the Government presented testimony from both

the   victim    and   Moore’s      co-defendant      that    at   the    moment     the

defendants stole the victim’s car, they charged at him, grabbed

both of his arms, and forced him into the back of his car.




                                          8
During the carjacking, * Moore punched the victim in the course of

demanding his ATM PIN.              A co-defendant testified Moore told the

victim      that   if   he    was   uncooperative,     Moore   would   kill     him.

Further, some defendants threatened to kill the victim if he

refused to give them the money in his possession.                   As the victim

testified, “they said they will tie me in the car and burn the

car.”

        Moore contends there was insufficient evidence of intent.

Rather than intending to harm the victim, he argues, they wanted

the     victim     alive     and    well   so   that   he   could   make   an   ATM

withdrawal.        But Moore’s desire for the victim’s compliance, so

he could transport the victim to multiple locations and steal

his money from various venues, says nothing of what Moore would

have done had the victim at any point resisted the taking of the

car.        Moore further contends that he hit the victim only one

time, and he points to the victim’s trial testimony that “I

wasn’t seriously injured but they hit me just to frighten me and

        *
       The First, Sixth, and Ninth Circuits have held that “the
commission of a carjacking continues at least while the
carjacker maintains control over the victim and [the victim’s]
car.”   Ramirez-Burgos v. United States, 313 F. 3d 23, 30 n.9
(1st Cir. 2002); United States v. Vazquez-Rivera, 135 F.3d 172,
178 (1st Cir. 1998); United States v. Cline, 362 F.3d 343, 353
(6th Cir. 2004); United States v. Hicks, 103 F.3d 837, 844 n. 5
(9th Cir. 1996) (reasoning that a carjacking continues until the
victim is permanently separated from her car).




                                            9
threaten me many times with my life.”                    This statement is taken

out of context, however, as the victim also stated, “I was . . .

mentally and physically tortured by them, . . . as well as by

the thought that I may not come alive out of this incident.”

Finally, Moore notes that he provided the victim with Tylenol

while at the hotel, and that he had an accomplice bring the

victim a cup of water when they stopped at Taco Bell.                           These

supposed acts of caretaking simply reflect Moore’s treatment of

the victim while the victim cooperated; they fail to shed light

on the key question the jury was asked to determine: what Moore

would have done if the victim had resisted the taking of the

car.

       Faced   with   this       difficult    inquiry,     the   jury   found    that

Moore would have killed or seriously injured the victim if he

had resisted Moore’s taking of the car.                      In the light most

favorable      to   the    Government,       Moore’s     physical   abuse   of   the

victim,     paired        with    his   threat     to     kill   the    victim    if

uncooperative, provides sufficient evidence for a rational trier

of fact to determine beyond a reasonable doubt that Moore had

the intent required by § 2219.



                                         IV.

       At   sentencing,      the   district      court    applied   a   three-level

enhancement for bodily injury pursuant to USSG §2B3.1(b)(3)(D)

                                         10
and a two-level adjustment for obstruction of justice pursuant

to USSG §3C1.1.         Moore maintains these determinations were made

in error.

      The district court found Moore to have a combined adjusted

offense level of 42, with a Criminal History Category of I.                      His

resulting Guidelines range was 360-660 months, and the district

court sentenced Moore to 480 months.               Moore’s trial attorney did

not   file   a    sentencing        memorandum    and    did   not    make   written

objections to the Presentence Investigation Report (“PSR”).                       He

did make an oral objection at sentencing to the enhancement for

use of a minor.         When the district court asked Moore whether he

had any objections, he stated: “I still don’t truly understand

how I’m receiving all these enhancements when my co-defendants

didn’t receive so many.”              He further expressed displeasure that

his Guidelines range was significantly higher than theirs.

      Moore argues that this statement, while lacking detail and

specificity, clearly implicated the many Sentencing Guidelines

enhancements recommended in the PSR.                     He contends that as a

result, he is entitled to de novo review regarding his current

challenges       to   the    bodily    injury    and    obstruction    of    justice

enhancements.         Moore agreed at sentencing that he had enough

time to discuss his PSR with his attorney, and before the judge

sentenced    Moore,         Moore   told   the   judge    that   he    had   nothing

further to say.

                                           11
     The    lack    of       a    specific        objection      to       these   sentencing

determinations      “amounts          to     a    waiver”       of    Moore’s     right    to

challenge them on appeal, absent plain error.                             United States v.

Brothers Const. Co. of Ohio, 219 F.3d 300, 320 (4th Cir. 2000).

This Court will only correct plain error if four conditions are

present:

     (1) [A]n error, such as deviation from a legal rule;
     (2) the error must be plain, meaning obvious or, at a
     minimum, clear under current law; (3) the error must
     affect substantial rights-in other words, the error
     must be so prejudicial as to affect the outcome of the
     proceedings in the district court; and, finally,
     (4) . . . the error seriously affects the fairness,
     integrity    or   public   reputation    of   judicial
     proceedings.


Id. (quoting United States v. Castner, 50 F.3d 1267, 1277 (4th

Cir. 1995)).

                                                 A.

     Section 2B3.1 of the Guidelines allows a two- to six-level

increase in offense level if the victim of a robbery sustains

bodily    injury.        The      Guidelines          suggest    that      “bodily    injury”

warrants a two-level increase, “serious bodily injury” warrants

a four-level increase, and “permanent or life-threatening bodily

injury”    warrants      a       six-level       increase.        The      U.S.   Sentencing

Commission clarified “bodily injury” as “any significant injury;

e.g., an injury that is painful and obvious, or is of a type for

which    medical    attention         ordinarily         would       be    sought.”       USSG


                                                 12
§1B1.1, comment. (n.1(B)).                “[T]o be ‘significant’ an injury

need not interfere completely with the injured person’s life but

cannot be wholly trivial and, while it need not last for months

or years, must last for some meaningful period.”                       United States

v. Lancaster, 6 F.3d 208, 209 (4th Cir. 1993) (per curiam).

“Serious bodily injury” is an “injury involving extreme physical

pain or the protracted impairment of a function of a bodily

member,       organ,   or        mental    faculty;       or    requiring       medical

intervention       such     as    surgery,       hospitalization,       or     physical

rehabilitation.”          USSG §1B1.1, comment. (n.1(L)).              The district

court applied a three-level enhancement for bodily injury to the

victim in Moore’s case, for harm falling between “bodily injury”

and “serious bodily injury.”              See USSG §2B3.1(b)(3)(D).

       The evidence in this case is that Moore punched the victim

once or twice and that the defendants rushed at the victim and

forced him into his car, causing multiple dark bruises on his

face    and    a   laceration       above    his       right    eye.     The     victim

experienced enough pain for Moore to have felt the need to offer

him pain      medication.         Further,       the   victim   testified,      “I   was

. . . mentally and physically tortured by them, . . . as well as

by the thought that I may not come alive out of this incident.”

In addition, EMS was ready to take him to the hospital, but he

declined.       On this record, the district court did not plainly



                                            13
err     in   applying          a    three-level         bodily-injury         enhancement      with

respect to Moore’s carjacking conviction (Count I).

                                                   B.

        Moore          also        challenges      the        two-level        adjustment         for

obstruction            of     justice.          Where     “a    defendant        objects     to    a

sentencing         enhancement            resulting      from    her     trial      testimony,      a

district court must review the evidence and make independent

findings          necessary         to    establish      a     willful    impediment         to   or

obstruction of justice, or an attempt to do the same, under the

perjury definition we have set out.”                           United States v. Dunnigan,

507 U.S. 87, 95 (1993).                     Here, the district court did not make

specific factual findings as to obstruction of justice.

        While Moore voiced a general dissatisfaction with the PSR

at his sentencing hearing, he made no specific objection to the

obstruction adjustment.                    Even if he had, “[a] mere objection to

the finding in the presentence report is not sufficient . . . .

Without an affirmative showing the information is inaccurate,

the court is ‘free to adopt the findings of the [presentence

report] without more specific inquiry or explanation.’”                                      United

States       v.    Love,       134       F.3d   595,    606    (4th    Cir.    1998)    (quoting

United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)).                                       The

district court was thus entitled to adopt the PSR’s findings.

See     Fed.      R.    Crim.       P.    32(i)(3)(A)        (“At   sentencing,        the    court

.   .   .    may       accept       any    undisputed        portion     of   the    presentence

                                                   14
report as a finding of fact . . . .”).                   The PSR noted that this

adjustment was proper because Moore made “false statements while

under oath regarding his involvement” in the offense.

       During the sentencing hearing, the district court adopted

the Guideline calculations from the PSR, ultimately finding that

Moore was lying as opposed to incorrectly remembering the events

about which he testified.            Moore provides no evidence indicating

the PSR misstated his trial testimony.                   The district court thus

did not plainly err in adopting the PSR’s finding and applying

the    two-level     obstruction       adjustment       with    respect     to   Moore’s

carjacking      conviction      (Count     I)   and     his    extortion     conviction

(Count II).



                                           V.

       For    the    reasons     set      forth     above,      we    affirm     Moore’s

carjacking       conviction     (Count     I)     and   sentencing        enhancements,

vacate the bank robbery conviction (Count III) and the portion

of    his    sentence    related     to   it,     and   remand      for   resentencing.

Such    remand      is   for   the   limited      purpose      of    imposing    Moore’s

sentence in the absence of his bank robbery conviction.


                                                                  AFFIRMED IN PART;
                                                               VACATED AND REMANDED




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