                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5224


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DAVON PERRY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:08-cr-00165-JFM-1)


Argued:   March 25, 2010                   Decided:   June 3, 2010


Before NIEMEYER and KING, Circuit Judges, and Eugene E.
SILER, Jr., Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.


Affirmed by unpublished opinion.    Senior Judge Siler wrote the
opinion, in which Judge Niemeyer and Judge King joined.


ARGUED: Thomas J. Saunders, Baltimore, Maryland, for Appellant.
Michael Joseph Leotta, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Traci L. Robinson, Assistant United
States Attorney, Nick Stewart, Law Clerk, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
SILER, Senior Circuit Judge:

         Davon Perry appeals his jury conviction of carjacking, 18

U.S.C. § 2119 (Count One), and use of a firearm in furtherance

of   a    crime   of     violence,        18    U.S.C.   §   924(c)(1)(A)(ii)       (Count

Two).      He alleges that there was insufficient evidence as to his

intent     for    the       carjacking         conviction,    and    that   his    firearm

conviction must also be vacated.                       He also challenges the jury

instruction       given       for     §    2119’s      intent   element.          For   the

following reasons, we AFFIRM.



                    I.       FACTUAL & PROCEDURAL BACKGROUND

         Latia Skeens started dating Perry in December 2006.                            She

ended their relationship after it became abusive, sought help

from a domestic violence center, and obtained a protective order

against     Perry      in    August       2007.       Nonetheless,    he    continued   to

call, follow, and threaten her.                       In February 2008, Perry asked

Skeens to attend a Super Bowl party with him.                        She declined, but

he called her between twenty and thirty times on February 3,

2008, the night of the Super Bowl, while she was at a friend’s

party.      Skeens left the party between 10:30 p.m. and 11 p.m. to

visit her friend Angel.

         While she was at Angel’s house, Skeens called Perry and

left a voice message on his phone.                        Perry eventually returned

Skeens’s call and she told him that she was at Angel’s house.

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After their conversation, Skeens left Angel’s house to drive

around before picking up her sister.                   She parked about a block

away from Angel’s house, behind a tow truck.

       While Skeens was still parked, Perry bumped Skeens’s car

from behind with his car.            Skeens tried to get out of her car,

but Perry told her to stay in the car and to open the passenger

door.     Skeens let Perry in the car because he had a gun and the

tow truck prevented her from driving away.                 After Perry got into

the car, he yelled at Skeens, told her she was going to die, and

punched    her    in   her   face.     Perry     ordered    her    to    drive    to   a

studio, where he said he was going to kill her.

       When they arrived at the studio, they both exited the car.

Skeens broke away, however, and got back into her car.                           As she

accelerated it, Perry ran toward her car, pointing the gun at

her.     Skeens hit a wall, and put the car in reverse, running

over Perry.       Two men approached the scene and spoke with Perry.

Skeens heard him tell the men “to get the chopper [gun] and to

shoot [her],” and saw him hand them the gun.                    Skeens then found

her phone and called 911.            When police arrived, both Skeens and

Perry were sent to the hospital for treatment.

        Perry objected to the government’s jury instruction number

30,     which    described    intent    under      §    2119.      The     proffered

instruction       stated     that    “To       establish    this        element     the

Government must prove that at the moment the defendant demanded

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or   took   control      over    the   vehicle   the   defendant   possessed      an

intent to seriously harm or kill the driver, if necessary, to

steal the car, or for any other reason.”                  Perry objected to the

inclusion of the clause “or for any other reason.”                   The district

court suggested striking the phrase “if necessary to steal a car

or   for    any    other   reason.”        Perry    did   not   object    to    that

resolution        and   stated    that   he   “tend[ed]    to   agree    with    the

Court.”

       Perry was convicted on both counts and sentenced to 180

months on each count, to run consecutively.



                                   II.   ANALYSIS

A.     Sufficiency of the Evidence

       “[A] jury’s verdict must be upheld if there is substantial

evidence in the record to support it.”                 United States v. Foster,

507 F.3d 233, 244 (4th Cir. 2007) (citing Glasser v. United

States, 315 U.S. 60, 80 (1942)).              To secure a conviction under §

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.”                     Id. at

246-47 (internal quotation marks and citation omitted).                        Perry

only    disputes        whether    the    government      produced      sufficient

                                          4
evidence of his intent, the first element.                                       Specifically, he

argues that there was not sufficient evidence of his intent,

because whatever intent he had to harm Skeens “had nothing to do

with the car itself.”

       In    Holloway         v.    United        States,       526       U.S.    1    (1999),       the

Supreme      Court         rejected       the    petitioner’s          argument        that       intent

under § 2119 only encompasses unconditional intent—“the intent

to harm or kill even if not necessary to complete a carjacking.”

Id. at 8.         Instead, it held that § 2119 allows for a conviction

when    there         is    proof     of       either     unconditional           or    conditional

intent—intent which is only fully formed if the driver of the

car    refuses         to    relinquish          control.           Id.       Thus,         the   Court

concluded that “[t]he intent requirement of § 2119 is satisfied

when   the       Government         proves       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      (or,     alternatively,           if

unnecessary to steal the car).”                        Id. at 12.

       Although            Foster   only        referred       to     Holloway’s        conditional

intent      language          and        did     not    quote         the     alternative,           “if

unnecessary to steal the car” language, unconditional intent is

still a valid form of intent.                          Thus, a defendant who possesses

the intent to kill or seriously harm the driver of a vehicle may

be    convicted        of     carjacking,          even    if       his     intent      to    harm    is

                                                   5
unrelated to the carjacking, so long as his intent is formed

when he takes control of the vehicle and he satisfies § 2119’s

other elements.

        United States v. Applewhaite, 195 F.3d 679 (3d Cir. 1999),

is not contrary to this conclusion.                In Applewhaite, the Third

Circuit concluded that there was insufficient evidence for the

jury to conclude that the defendants intended to kill or cause

serious    bodily    harm   when   they     took     control     of    the   vehicle,

because there was no nexus between the assault on the victim and

the subsequent taking of his van.              Id. at 685.            Intent was not

established, because “the van was taken as an afterthought in an

attempt to get [the victim’s] limp body away from the crime

scene.”    Id. at 685.

        Unlike the defendants in Applewhaite, however, there was

sufficient    evidence      from   which    the    jury    could      conclude    that

Perry    possessed    the   requisite       intent    at   the    moment     he   took

control over Skeens’s car.          For example, Skeens said that Perry

had threatened her, used a gun to demand entry into her car and

to force her to continue driving, and continually stated he was

going to kill her.           Under Holloway, it is irrelevant whether

Perry intended to kill or harm Skeens so that he could take her

car or whether he only wanted to kill her.                         The government

simply needed to prove that when he took control over her car—a

fact Perry does not dispute on appeal—he possessed the intent to

                                        6
kill her.    Viewing the evidence in the light most favorable to

the government, there was sufficient evidence from which the

jury could conclude that he intended to kill or seriously harm

Skeens when he took control over her vehicle.



B.   Jury Instruction

     Although          we      typically           review      challenges       to      jury

instructions for an abuse of discretion, S. Atl. Ltd. P’ship v.

Riese, 284 F.3d 518, 530 (4th Cir. 2002), where the defendant

fails to challenge the instructions before the district court,

our review is for plain error, Foster, 507 F.3d at 249 (citing

United   States    v.        Olano,     507    U.S.    725,    732    (1993)).        Perry

challenged the government’s proposed jury instruction, but he

did not challenge the ultimate instruction adopted by the court

and even stated that he “tend[ed] to agree with the Court.”

Thus, we review for plain error.

     “On plain error review, we will reverse the district court

if we (1) identify an error, (2) which is plain, (3) which

affects substantial rights, and (4) which seriously affects the

fairness,      integrity,          or     public        reputation        of      judicial

proceedings.”      Id. at 249.                Even if a defendant demonstrates

plain    error,   we        will   only       notice    a     forfeited       error   if    a

“miscarriage      of        justice     would       result.”         United    States      v.

Cedelle, 89 F.3d 181, 184 (4th Cir. 1996).

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     The court’s instruction, in relevant part, was as follows:

     The third element the Government must prove beyond a
     reasonable doubt is that the defendant acted with
     intent to cause death or serious bodily harm. . . .
     Now to establish the third element the Government must
     prove that at the moment the defendant demanded or
     took over the vehicle, the defendant possessed the
     intent to seriously harm or kill the driver.

Perry asserts that the instruction’s failure to include the “if

necessary to steal the car” phrase from Holloway, was erroneous.

However, this argument overlooks the remainder of the sentence

in Holloway: “or, alternatively, if unnecessary to steal the

car.”    526     U.S.   at    12.     The   district   court’s   instruction

correctly   allowed     the    jury    to   convict    Perry   under    either

interpretation of intent, so long as that intent was formed at

the time Perry took control over the vehicle.                Thus, we cannot

say that the district court committed any error, particularly

plain error. *

                                                                       AFFIRMED




     *
      Because we affirm Perry’s conviction              on   Count   One,   his
arguments as to Count Two are moot.



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