                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4697



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


NICODEMUS GLADDEN, a/k/a Nicodemus Rainey,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (2:06-cr-00966-PMD)


Submitted:   January 31, 2008          Decided:     February 13, 2008


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Nicodemus Gladden pleaded guilty to being a felon in

possession of a firearm and ammunition.         On appeal, he challenges

his   120-month   sentence,   contesting     the     application    by   cross

reference of the robbery guidelines to his sentence and arguing

that his sentence is unreasonable.         Finding no error, we affirm.

           On June 17, 2006, Charleston City police officer Corporal

Chris Costanzo was dispatched to 1328 St. Clair Drive in response

to illegal narcotic activity.       When Officer Costanzo arrived, he

observed Appellant Nicodemus Gladden and another African-American

male walk away from a parked Ford Crown Victoria that had a door

open and loud music playing from inside the car. Corporal Costanzo

asked both men if they knew who owned the vehicle.           Both men denied

ownership of the car; however, it was later determined the vehicle

belonged to Gladden.     Corporal Costanzo went to the vehicle to

retrieve the keys and noticed a strong odor of marijuana coming

from inside the vehicle.      He then observed Gladden walking away

from him toward the side of a residence.             The officer yelled at

Gladden to stop, but Gladden ran away from the officer.             Costanzo

observed   Gladden   remove   a   black    handgun    from   his   waistband.

Gladden disputed that he possessed a gun.

           Corporal Costanzo testified that, after he gave Gladden

a verbal command to stop, Gladden began to run away with the gun

still in his hand.     A foot chase ensued, with Costanzo pursuing


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Gladden    over   several   fences    and   through   backyards   in   the

neighborhood.     Costanzo continued to shout to Gladden not to move,

“police,” but Gladden continued to run with the gun visible in his

hand.    Gladden jumped into the back of a pick up truck, which was

stopped on a street corner at a stop sign.      At that point, Costanzo

was approximately fifty to sixty feet behind the truck.           Costanzo

testified that Gladden yelled to the driver, “go, go, go,” with the

gun in his hand pointed at the driver.        Gladden held the gun down

by his hip at a ninety degree angle.           There was a rear window

between the driver and Gladden and Gladden was approximately one or

two feet from the driver.        Costanzo observed that the driver

“looked back to his left out the window, and when he turned around

he looked pretty surprised, his eyes bugging out.          And he turned

back to the right, then he started to drive off with Mr. Gladden

still in the back.”      (J.A. 37).    Corporal Costanzo cut across a

yard and approached the truck, still on foot, and, with his own gun

drawn, yelled to the driver to stop the vehicle.       The driver looked

at Costanzo and immediately stopped the vehicle.          Gladden jumped

out and began to run again.     Costanzo estimated that the truck had

traveled approximately 200 feet while Gladden was in the truck.

The driver of the truck left the scene and Costanzo continued to

pursue Gladden on foot.     Gladden eventually ran inside a house and

the occupant came out screaming that someone just broke into his

house.    Costanzo called in the address and requested more units to


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the scene. He tried to keep Gladden contained in the house.

Additional officers arrived and entered the house and apprehended

Gladden.    Gladden no longer had the gun on his person.       A gun was

later found by officers behind a shed that Gladden and Costanzo

circled several times during pursuit.

            The presentence report (PSR) assigned a base offense

level of 20 pursuant to U.S. Sentencing Guidelines Manual § 2K2.1

(2006).     Gladden received an additional six levels under USSG

§ 2K2.1(b)(4)(A) (stolen firearm) and USSG § 2K2.1(b)(6) (possessed

in connection with another felony offense).           However, because

Gladden used the firearm in connection with a carjacking, the

probation     officer   applied     the    cross-reference     in   USSG

§ 2K2.1(c)(1)(A) to USSG § 2X1.1(a), which provides for the use of

“[t]he base offense level from the guidelines for the substantive

offense, plus any adjustments from such guideline for any intended

offense conduct that can be established with reasonable certainty.”

Accordingly, the PSR referenced the guideline for robbery, found in

USSG § 2B3.1, and recommended a base offense level of twenty.        The

PSR   added    an   additional    six     levels,   pursuant   to   USSG

§ 2B3.1(b)(2)(B), because the firearm was “otherwise used” by

Gladden in the carjacking.        Further, the PSR added four levels

pursuant to USSG § 2B3.1(b)(4)(A), because the truck driver was

abducted to facilitate commission of the offense or to facilitate

escape.     Finally, the PSR added two levels pursuant to USSG


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§   2B3.1(b)(5),   because    the    offense   involved    a   carjacking.

Therefore, the resulting adjusted offense level was 32.

          After    a     three-level   reduction   for     acceptance    of

responsibility, pursuant to USSG § 3E1.1(a) and (b), the PSR

calculated Gladden’s total offense level as 29.            This, combined

with Gladden’s criminal history category of VI, resulted in an

advisory Guidelines range of 120 to 151 months.           However, because

the maximum term of imprisonment was ten years, the Guidelines

range became 120 months.       Gladden moved for a downward variance,

and also objected to the cross reference provision in the PSR.          The

Government agreed with Gladden that the enhancement under USSG

§ 2B3.1(b)(2) should have been five levels instead of six, thus the

recalculated range was 110 to 120 months.           The district court

upheld the application of the cross reference and its enhancements,

denied Gladden’s motion for a downward variance, and sentenced

Gladden to a 120-month term of imprisonment.

          In reviewing a sentencing judge’s application of the

sentencing guidelines, this court reviews factual determinations

for clear error.       United States v. Green, 436 F.3d 449, 456 (4th

Cir.), cert. denied, 126 S. Ct. 2309 (2006).              “If the court’s

findings may rationally be said to be supported by a preponderance

of the evidence, they may not be disturbed on appeal.”              United

States v. Crump, 120 F.3d 462, 468 (4th Cir. 1997).




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          Gladden argues that the facts are insufficient to justify

the additional five levels for brandishing or possessing the

firearm because the carjacking incident only lasted seconds.        He

contends that no one knew if the driver saw the weapon because he

was not identified and, without testimony from the victim, the

five-level   enhancement   is   not   appropriate.   Considering   the

officer’s detailed testimony, including that Gladden possessed the

gun before and after jumping into the truck, we conclude that the

district court did not clearly err in concluding that Gladden

possessed or brandished the gun in connection with the carjacking.

          Next, Gladden argues that the district court erred in

finding that he abducted the driver to facilitate the carjacking or

escape.   The district court’s determination that Gladden abducted

the victim should be reviewed de novo because it involves a legal

interpretation of the guideline.      See United States v. Kinter, 235

F.3d 192, 195 (4th Cir. 2000) (citing United States v. Nale, 101

F.3d 1000, 1003 (4th Cir. 1996)).

          The term “abducted” is defined in Application Note 1(A)

to USSG § 1B1.1 as meaning “that a victim was forced to accompany

an offender to a different location.”     The example given is that of

a bank robber forcing a teller into a getaway car.     Gladden argues

that, because he and the victim only traveled approximately 200

feet, he did not force the driver to go to a different location and

the event did not even constitute a temporary abduction. See Nale,


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101    F.3d    at   1003    (temporary    abduction    can   be   sufficient    for

purposes of § 2B3.1(b)(4)(A)).            There are several cases from other

circuits in which a defendant was held to have abducted the victim

by forcing the victim to move (1) forty to fifty feet across a

parking lot, United States v. Hawkins, 87 F.3d 722, 728 (5th Cir.

1996); (2) out of a store and into the parking lot sixty-five feet

from the store’s entrance, United States v. Whooten, 279 F.3d 58,

60-61 (1st Cir. 2002); and (3) from the parking lot of a bank into

the main vault, United States v. Taylor, 128 F.3d 1105, 1110-11

(7th Cir. 1997).           “[T]he abduction adjustment requires only that

force necessary to overcome the particular victim’s will.”                United

States v. Saknikent, 30 F.3d 1012, 1014 (8th Cir. 1994).                      Here,

Gladden ordered the driver to “go, go, go,” held a gun in his view,

pointing it at him, and the officer testified that the driver

appeared to be alarmed. Finally, the truck moved approximately 200

feet.    We therefore conclude that the district court did not err in

finding that the driver of the truck was abducted for purposes of

USSG § 2B3.1(b)(4)(A).

               Gladden also challenges the two level enhancement under

USSG § 2B3.1(b)(5) for carjacking.               “‘Carjacking’ means the taking

or attempted taking of a motor vehicle from the person or presence

of another by force and violence or by intimidation.”                          USSG

§     2B3.1,    comment.(n.1).       Gladden’s        sole   objection   to     the

enhancement is that it should not have been applied when the driver


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of the truck did not testify.        There is no requirement for the

victim’s testimony and, for the reasons discussed above related to

the sufficiency of the officer’s testimony regarding abduction, the

district court did not err in imposing the enhancement.

          Finally,     Gladden    argues   that,   because   the    facts

underlying the applicable sentencing enhancements were marginal and

based only upon the testimony of Corporal Costanzo, his sentence is

unreasonable.    This court will affirm a sentence if it “is within

the statutorily prescribed range and is reasonable.”               United

States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126

S. Ct. 2054 (2006).     A sentence that falls within the properly

calculated advisory guidelines range is entitled to a presumption

of reasonableness.     United States v. Johnson, 445 F.3d 339, 341

(4th Cir. 2006); see Rita v. United States, 127 S. Ct. 2456,

2462-69   (2007)     (upholding    application     of   presumption   of

reasonableness to within-guidelines sentence). Because Gladden was

sentenced within the properly calculated guidelines range, his

sentence is presumptively reasonable.         This court reviews his

sentence under a deferential abuse of discretion standard.            See

Gall v. United States, 128 S. Ct. 586, 597 (2007).      After reviewing

the record, we conclude the district court did not abuse its

discretion.

              We therefore affirm Gladden’s sentence.        We dispense

with oral argument because the facts and legal contentions are


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adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                          AFFIRMED




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