            Case: 16-15524    Date Filed: 11/16/2017   Page: 1 of 7


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15524
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 6:14-cr-00238-JA-KRS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

NESTER LEON,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (November 16, 2017)

Before ED CARNES, Chief Judge, JULIE CARNES, and JILL PRYOR, Circuit
Judges.

PER CURIAM:
              Case: 16-15524     Date Filed: 11/16/2017    Page: 2 of 7


      A grand jury charged Nester Leon with carjacking, 18 U.S.C. § 2119, and

possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c).

Leon pleaded not guilty and proceeded to trial. At the close of the government’s

evidence, Leon moved for judgment of acquittal. The district court denied his

motion and the jury found Leon guilty of both counts. Leon contends that the

district court improperly denied his motion for judgment of acquittal because there

is insufficient evidence to support his carjacking conviction.

                                          I.

      Leon and his victim, Lester Perez, were not strangers. About two weeks

before Leon stole Perez’s car, Perez spotted Leon outside a nightclub and thought

he recognized him from high school. Perez invited Leon to his home that night

where the two rekindled their relationship. Over the following days, Leon and

Perez exchanged text messages. On the night of the incident giving rise to this

case, Perez picked up Leon and the two drove to a credit union where Perez parked

his car and walked to the ATM to withdraw money.

      While Perez was using the ATM, Leon slid into the driver’s seat, put the car

in reverse, and accelerated. Perez heard his car reversing, turned around, saw Leon

in the driver’s seat, and ran to the passenger side of the car. By the time Perez

reached the passenger-side door, Leon had stopped the car to switch from reverse

to drive. Perez exclaimed, “stop, stop, what are you doing,” at which point Leon


                                          2
               Case: 16-15524     Date Filed: 11/16/2017    Page: 3 of 7


pointed a gun at Perez’s face and fired a bullet through the open passenger-side

window. The shot missed and Leon sped away. Perez phoned 911 from a nearby

store and, shortly thereafter, police located his car and apprehended Leon.

                                            II.

      To sustain a conviction for carjacking under 18 U.S.C. § 2119, “the

government must prove that the defendant (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. Diaz, 248 F.3d

1065, 1096 (11th Cir. 2001). Leon argues that the record contains insufficient

evidence as to the first and fifth elements because he did not have the intent to kill

or seriously harm Perez when he took his car and because he did not use force and

violence or intimidation to take the car.

                                            A.

      Leon did not argue to the district court that there is insufficient evidence to

support a finding of intent. As a result, we review that argument only for plain

error. See United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir. 1999)

(“Since the record does not show that Appellant raised this issue to the district

court, our review of the district court’s decision to deny the motion for judgment of

acquittal on that basis is only for ‘plain error.’”). “We will reverse a district


                                            3
               Case: 16-15524      Date Filed: 11/16/2017    Page: 4 of 7


court’s decision under the plain error rule only if there is: (1) error, (2) that is

plain, and (3) that affects substantial rights, and if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Doyle, 857 F.3d 1115, 1118 (11th Cir. 2017) (quotation marks omitted).

      Leon’s intent must “be judged objectively from the visible conduct of the

actor and what one in the position of the victim might reasonably conclude.”

United States v. Fulford, 267 F.3d 1241, 1244 (11th Cir. 2001). Judged from that

perspective, his argument fails. The court did not err — plainly or otherwise — by

concluding that Leon was willing to kill or seriously harm Perez if necessary to

take his car when he pointed a gun at Perez’s face and fired before speeding away.

                                            B.

      Leon did argue to the district court that the government failed to show he

used force and violence or intimidation to take Perez’s car. As a result, we review

de novo whether there is sufficient evidence to support the jury’s verdict on that

basis. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). We must

view the evidence in the light most favorable to the government and draw all

reasonable factual inferences and credibility determinations in favor of the verdict.

Id. The evidence supports a conviction if a reasonable trier of fact could find that

the evidence established guilt beyond a reasonable doubt. Id. at 1285.




                                            4
               Case: 16-15524     Date Filed: 11/16/2017    Page: 5 of 7


      Leon argues that he took Perez’s car by stealth — not by “force and violence

or intimidation” — because he acquired control of it by sliding into the driver’s

seat while an unwitting Perez used the ATM. Leon does not dispute using force

and violence or intimidation by pointing and firing the gun at Perez, but asserts that

he did so only after acquiring control of the car. Because he used force and

violence or intimidation to retain control of the car, but not to take it, he argues that

he did not commit the federal crime of carjacking. By contrast, the government

argues that the taking was ongoing when Leon pointed and fired the gun at Perez

because that was how he “secured dominion” over the car. To evaluate those

arguments, we must determine precisely when Leon “took” Perez’s car.

      We have not defined “taking” for § 2119 purposes, but our sister circuits

have defined it by reference to the crime of robbery at common law. See United

States v. Petruk, 781 F.3d 438, 442 (8th Cir. 2015) (noting that “taking” is “a

common law term of art derived from the law of robbery”); United States v.

Figueroa-Cartagena, 612 F.3d 69, 78 (1st Cir. 2010) (same); United States v.

DeLaCorte, 113 F.3d 154, 156 (9th Cir. 1997) (“We conclude that 18 U.S.C.

§ 2119 . . . incorporates the understanding of that term as developed under the

common law and in other federal robbery statutes.”); see also United States v.

Wright, 246 F.3d 1123, 1126 (8th Cir. 2001) (defining “taking” as “the acquisition

by the robber of possession, dominion or control of the property for some period of


                                           5
              Case: 16-15524     Date Filed: 11/16/2017   Page: 6 of 7


time”); United States v. Moore, 73 F.3d 666, 669 (6th Cir. 1996) (same). At

common law “taking” was a term of art that referred to the act of “securing

dominion” over something. See Figueroa-Cartagena, 612 F.3d at 78 (citing 2

Wayne R. LaFave, Substantive Criminal Law § 19.3 (2d ed. 2003)).

      Viewing the evidence in the light most favorable to the government, the

record supports Leon’s conviction. When Leon shot at Perez, Perez was near the

passenger-side door of the car. Perez’s proximity to the car coupled with the fact

that Leon felt compelled to point and fire the gun at Perez could lead a reasonable

trier of fact to conclude that Leon had not yet “secured dominion” over the car. If

he had secured dominion over it, there would have been no need for him to fire at

Perez. As a result, the evidence supports a conclusion that the taking was ongoing

at the time Leon used force and that Leon “took [Perez’s car] . . . by force and

violence or intimidation.” 18 U.S.C. § 2119.

      Because a reasonable jury could find that Leon took Perez’s car by force and

violence or intimidation with intent to cause death or serious bodily harm, there is

sufficient evidence to support Leon’s carjacking conviction. Diaz, 248 F.3d at

1096. Leon does not contest possessing a gun during the incident. As a result,

there is sufficient evidence to support Leon’s conviction for possession of a

firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c). United

States v. Moore, 43 F.3d 568, 572 (11th Cir. 1994) (“[A]ny defendant who


                                          6
               Case: 16-15524      Date Filed: 11/16/2017   Page: 7 of 7


possesses a firearm within the meaning of section 2119 necessarily uses or carries

it as defined in § 924(c)(1).”).

      AFFIRMED.




                                           7
