                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4029



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DANNY L. BLACKMON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-77-F)


Submitted:   October 25, 2006          Decided:     December 13, 2006


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


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Jane E. Pearce, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A jury found Danny Blackmon guilty of kidnaping in

violation of 18 U.S.C. § 1201 (2000).     The court sentenced him to

365 months’ imprisonment.    He appeals his conviction and sentence.

            Blackmon and his wife Robin moved into adjacent campers

in Snead’s Ferry, North Carolina, near Camp Lejeune Marine Corps

Base.    Blackmon had physically abused Robin prior to the instant

offense.      On the evening of the incidents giving rise to the

conviction, Blackmon lured Robin to his van by saying her dog was

in his van.    When she saw there was no dog, she tried to run away.

Blackmon shot her in the back with a pellet gun, and then ran up to

her and shot her in the groin.       Blackmon continued threatening

Robin with the gun and then shot her in the neck.      Blackmon then

ordered her to take her clothes off and enter the van.          While

Blackmon drove, he ordered Robin to play with his penis.        Robin

complied.

            Blackmon stopped the car within Camp Davis, which is part

of Camp Lejeune Marine Corps base.       Blackmon ordered Robin to

perform oral sex.     After she complied, Blackmon penetrated her

anally and again demanded oral sex.     Robin again complied.   When

Blackmon turned the van around to leave, it became stuck in the

mud.    Blackmon ordered Robin to push the van, which she did while

still naked.      However, she was unable to get the van free.

Blackmon and Robin walked one hundred yards into the woods, and


                                - 2 -
Robin thought Blackmon was going to kill her.      Instead, Blackmon

and Robin engaged in a variety of sex acts.

          Eventually, they returned to the van, and Blackmon walked

down the road to get help pulling the van out of the mud.    Blackmon

was able to flag down Jack Carroll, who agreed to pull the van out

of the mud after dropping off his boat.    While Blackmon was waiting

for Carroll, police officers arrived on the scene because they had

been advised that people were flagging down vehicles.       Robin did

not alert the officers as to the events that had transpired because

she was afraid of Blackmon’s reaction. Carroll eventually returned

and gave Robin a ride home.       At that time, Robin reported to

Carroll what had occurred.    Police officers later went to Robin’s

camper.   When they arrived, she told them that Blackmon had both

abducted and sexually assaulted her.

          The   Presentence    Report     recommended   a   two-level

enhancement because the victim sustained serious bodily injury, a

two-level enhancement because a dangerous weapon was used, a two-

level enhancement for perjury because Blackmon testified that he

did not kidnap Robin, and a six-level enhancement because the

victim was sexually exploited.    Blackmon filed several objections,

including an objection to the six-level enhancement for sexual

exploitation, which was the only objection sustained by the court.1



     1
      Blackmon was sentenced one month prior to the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005).

                                 - 3 -
As a result, the total offense level was thirty-eight.             With a

criminal history category III, Blackmon’s guideline range was 292-

365 months’ imprisonment.       The court sentenced Blackmon to 365

months’ imprisonment and said the sentence constituted “both the

sentencing guideline sentence and the alternative sentence pursuant

to 18 United States Code Section 3553(a), as directed by . . .

United States v. Hammoud.”2

          The indictment charged that “at Marine Corps Base, Camp

Lejeune, a place within the special maritime and territorial

jurisdiction    of   the   United   States,   the   defendant,   DANNY   L.

BLACKMON, did, knowingly, willingly, and unlawfully seize and

confine, and hold for his own purposes, the victim, . . .                in

violation of Title 18, United States Code, Section 1201.” (JA 19).

Section 1201 provides, in relevant part:

          (a)    Whoever    unlawfully     seizes,     confines,
                 inveigles,   decoys,  kidnaps,    abducts,   or
                 carries away and holds for ransom or reward or
                 otherwise any person, except in the case of a
                 minor by the parent thereof, when–

                 (1)   the person is willfully transported in
                       interstate    or    foreign     commerce,
                       regardless of whether the person was
                       alive when transported across a State
                       boundary if the person was alive when the
                       transportation began;

                 (2)   any such act against the person is done
                       within   the   special   maritime   and
                       territorial jurisdiction of the United
                       States;


     2
      United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004).

                                    - 4 -
18 U.S.C. § 1201(a)(1), (2).

              Blackmon contends that the language of the indictment

tracked § 1201(a)(2), but the evidence at trial proved a violation

of § 1201(a)(1), creating a fatal variance.                   Specifically, he

asserts that the indictment was based on a contention that the

conduct occurred in the special territorial jurisdiction of the

United States, while the proof at trial suggested the kidnaping

occurred on state land and Robin was subsequently transported to

(and   held    on)    federal   property,      establishing     a    violation        of

§ 1201(a)(1), not § 1201(a)(2).             Blackmon argues that both the

seizure and the holding of the victim must occur within the

territorial      jurisdiction     of     the    United   States           to    satisfy

§ 1201(a)(2).        However, this court has held that “[k]idnaping is a

continuing     crime    which   begins   the    moment   that       the    victim    is

unlawfully      seized,     confined,     inveigled,     decoyed,              kidnaped,

abducted, or carried away.” United States v. Willis, 346 F.3d 476,

488 (4th Cir. 2003).       Moreover, the first element of the crime can

be established by any of the seven distinct acts listed under

§ 1201(a).     There is nothing in the statute or case law to suggest

that if more than one of those acts occur, they all have to occur

on federal territory for the United States to have jurisdiction.

See United States v. Stands, 105 F.3d 1565 (8th Cir. 1997) (“much

of the defendant’s inveigling . . . took place within the . . .




                                       - 5 -
boundaries of the . . . reservation”).3                   Here, even though the

abduction    did   not   begin   on   a   federal      enclave,     the   evidence

established that Robin was held on federal property. Blackmon took

Robin against her will in his van, and drove the van into Camp

Davis, which is part of Camp Lejeune; once there, Blackmon engaged

in sexual activity with Robin in the van, as well as in the nearby

woods.    Thus, the evidence at trial established that Blackmon held

Robin against her will in the special territorial jurisdiction of

the United States.       There was no variance between the indictment

and the proof at trial.

            Next, Blackmon alleges that the evidence was insufficient

to support his conviction because the evidence does not show

Blackmon held Robin for an appreciable time period within the

special    territorial    jurisdiction        of    the    United   States.     An

appellate    court   should      affirm   a        conviction   challenged     for

sufficiency of the evidence if, viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.    See Glasser v. United States, 315 U.S. 60, 80 (1942);

United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996).                    A

defendant challenging a conviction for sufficiency of the evidence


     3
      Blackmon incorrectly argues that the court in Stands spent
considerable attention to determine federal jurisdiction, citing
to four pages of that opinion. Appellant’s reply brief at 4. In
fact, the Eighth Circuit used three sentences to address
jurisdiction. Stands, 105 F.3d at 1571.

                                      - 6 -
bears a “heavy burden,” see United States v. Hoyte, 51 F.3d 1239,

1245 (4th Cir. 1995), and “a decision [to reverse for insufficient

evidence] will be confined to cases where the prosecution’s failure

is clear.”     Burks v. United States, 437 U.S. 1, 17 (1978).                  An

appellate court must “consider circumstantial as well as direct

evidence, and allow the government the benefit of all reasonable

inferences     from   the    facts   proven    to    those    sought      to   be

established.”    United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir.   1982)   (citations    omitted).       This   court    does   not   review

credibility determinations on appeal. See Glasser, 315 U.S. at 80.

           Blackmon’s argument is that because he was acquitted of

the sexual abuse charges, which occurred in the federal territorial

jurisdiction, he must also be acquitted of the kidnaping charge.

Blackmon’s argument fails for two reasons. First, the acquittal on

the sexual abuse charges does not necessarily mean the jury found

Robin consented to the conduct.        The jury was instructed to acquit

Blackmon if they found he mistakenly, but reasonably, believed

Robin consented.      Moreover, “seemingly inconsistent conclusions

should not be set aside as error unless the evidence in the case is

insufficient to ‘support any rational determination of guilt beyond

a reasonable doubt.’”       United States v. Hopkins, 310 F.3d 145, 153

(4th Cir. 2002), quoting United States v. Powell, 469 U.S. 57, 67

(1984).   We find Robin’s testimony that she was held on federal

property against her will for three to four hours satisfies the


                                     - 7 -
requirement that the victim be held for an appreciable period of

time.    Chatwin v. United States, 326 U.S. 455, 460 (1946) (holding

that an “act of holding a kidnaped person for a proscribed purpose

necessarily implies an unlawful physical or mental restraint for an

appreciable period”).

            Blackmon argues that the trial court erred under Booker

by sentencing him under a mandatory guideline scheme and making

factual findings that increased his sentence.        The Government

concedes error, but argues the error did not affect Blackmon’s

substantial rights.

            Because Blackmon preserved his Sixth Amendment claim, it

is reviewed for harmless error.      Booker, 543 U.S. at 268.   The

government bears the burden of showing beyond a reasonable doubt

that the error did not affect the defendant’s substantial rights.

United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).

However, because the district court stated that it would impose an

identical alternative sentence under § 3553 if the guidelines were

determined to be non-binding or unconstitutional, the government

has met its burden of showing that the Sixth Amendment error was

harmless.    United States v. Shatley, 448 F.3d 264, 267 (4th Cir.

2006).   The district court followed this court’s recommendation in

United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), vacated,

543 U.S. 1097 (2005), the alternative sentence was within the range

recommended by the sentencing guidelines, and this court takes the


                                - 8 -
district court at its word when it states that it would impose the

same sentence under an advisory guidelines system.       Shatley, 448

F.3d at 268.    We find Blackmon is not entitled to relief.

            Finally, Blackmon argues the sentencing guidelines are

unconstitutional because the Feeney Amendment to the PROTECT ACT,

Pub. L. No. 108-21, 117 Stat. 667 (2003), violates the Separation

of Powers doctrine.   He relies on United States v. Detwiler, 338 F.

Supp. 2d 1166 (D. Or. 2004).     Because the district court noted it

would give the same sentence if the guidelines were advisory, any

error is harmless.    See generally United States v. Coleman, 451

F.3d 154 (3d Cir. 2006).

            Accordingly,   we   affirm   Blackmon’s   conviction   and

sentence.    We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                             AFFIRMED




                                 - 9 -
