UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 98-4742
SCOTT DEWAYNE YOUNG, a/k/a Scott
Dewayne Hunter,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-97-477)

Argued: September 24, 1999

Decided: December 16, 1999

Before MURNAGHAN and NIEMEYER, Circuit Judges,
and MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Judge Murnaghan and Senior Judge Magill joined.

_________________________________________________________________

COUNSEL

ARGUED: Martin Gregory Bahl, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Bryan
Edwin Foreman, Assistant United States Attorney, UNITED STATES
ATTORNEY'S OFFICE, Greenbelt, Maryland, for Appellee. ON
BRIEF: James Wyda, Federal Public Defender, Michael T. Citara-
Manis, Assistant Federal Public Defender, Lauren E. Case, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, UNITED
STATES ATTORNEY'S OFFICE, Greenbelt, Maryland, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

On evidence that Scott Dewayne Young had repeatedly physically
abused, threatened, and harassed his former girlfriend, Zubaidah
Haamid, over the course of their relationship, a jury convicted Young
for interstate stalking in violation of 18 U.S.C.§ 2261A. The district
court sentenced Young to 41 months imprisonment to run consecu-
tively with an undischarged state sentence arising from similar con-
duct. On appeal, Young challenges (1) the sufficiency of the
evidence, (2) the authority of Congress to enact the interstate stalking
statute, (3) the constitutionality of the statute for vagueness, and (4)
aspects of his sentence. For the reasons that follow, we affirm.

I

Young and Haamid, who were involved in an intimate relationship
and together had a son, lived together on and off in Hyattsville, Mary-
land, for over a year. Testifying at trial that Young was physically
abusive, Haamid gave details of numerous beatings she suffered at
Young's hands. On various occasions, Young threw Haamid against
the wall, dragged her across the floor, struck her, and violently
restrained her. Haamid's friend testified that Young once hit Haamid
in the mouth so hard that her teeth left imprints in her lip. Haamid

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recounted that during these beatings Young threatened her with fur-
ther violence, insulted her, and told her that he was never going to
leave her alone.

After Haamid moved out of Young's apartment and ended their
relationship, Young made repeated efforts to renew the relationship.
When Haamid rebuffed his efforts, Young began telephoning her
repeatedly -- in Haamid's estimate over 50 times on one day. He
would come to her home, and, when she refused to let him in, he
would enter through the window or bang and kick on her door. He
would wait for her outside her apartment, near her workplace, and at
the subway station. His pleas for reconciliation were often under-
scored with threats and rough restraint until Haamid managed to
break free.

Young's behavior prompted Haamid to obtain protection orders in
Maryland, where she and Young lived, and in the District of Colum-
bia, where Haamid worked. Despite these protection orders, Young
continued to harass Haamid, calling her repeatedly, confronting her
near her workplace and home, pleading with her to reestablish the
relationship, and threatening her when she resisted him.

The specific conduct which led to Young's conviction of interstate
stalking occurred on November 17, 1997. Despite the existence at that
time of the Maryland protection order prohibiting Young from con-
tacting Haamid or coming to her home or place of employment,
Young called Haamid several times on November 17, beginning at
5:30 a.m., reaching her at home and at work and declaring his inten-
tion to come to Haamid's workplace at noon. When Haamid went
down at noontime to the lobby of her office building in Washington,
D.C., to meet Young, she asked a coworker to accompany her to the
lobby because she was afraid to meet him alone. Haamid repeatedly
asked Young to leave, but he refused to do so until she accepted
something he wanted to give her. Young told Haamid that he loved
her and did not understand why she was treating him badly. To get
Young to leave, Haamid eventually accepted a ring from Young, the
same ring that she had thrown at him during a quarrel in his apartment
in Maryland two weeks earlier.

On December 17, 1997, a grand jury returned a five-count indict-
ment against Young charging him with two counts of interstate travel

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to commit domestic violence in violation of 18 U.S.C. § 2261(a)(1),
two counts of interstate stalking in violation of 18 U.S.C. § 2261A,
and one count of interstate travel to commit acts in violation of a
court ordered protective order in violation of 18 U.S.C. § 2262(a)(1).
The district court dismissed two counts at the close of the govern-
ment's case, and the jury returned a verdict of not guilty on two
counts. Young was found guilty on one count of interstate stalking,
based on the November 17, 1997 incident.

In sentencing Young, the district court increased Young's base
offense level by four levels (from level 14 to level 18) pursuant to
U.S.S.G. § 2A6.2(b)(1) (authorizing enhancement when the defen-
dant's conduct is in violation of a court protection order, involves
bodily injury, threatens the use of weapons, or constitutes a pattern of
harassment). On Young's request for a reduction of his criminal his-
tory category, arguing that his criminal history was overstated
because it consisted only of convictions involving Haamid, the judge
reduced Young's criminal history category from V to IV. The court
sentenced Young to 41 months imprisonment, at the low end of the
resulting 41-51 month sentencing range. This appeal followed.

II

Young contends first that the evidence presented at trial was insuf-
ficient to support his conviction of interstate stalking in violation of
Title 18 U.S.C. § 2261A, which provides in pertinent part:

          Whoever travels across a State line . . . with the intent to
          injure or harass another person, and in the course of, or as
          a result of, such travel places that person in reasonable fear
          of the death of, or serious bodily injury (as defined in sec-
          tion 1365(g)(3) of this title) to, that person . . . shall be pun-
          ished as provided in section 2261 of this title.

Young claims that the government failed to offer sufficient evidence
(1) that on November 17, 1997, he crossed a state line to visit Haamid
and (2) that on that day, Haamid was in "reasonable fear of serious
bodily injury."

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In reviewing the sufficiency of evidence to support a conviction,
we take the evidence in the light most favorable to the government
and determine whether any rational trier of facts could have found the
defendant guilty beyond a reasonable doubt. See , e.g., United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

On Young's first point, he is correct in noting that the record lacks
direct evidence that Young crossed a state line on Monday, November
17, 1997, the date of the alleged interstate stalking. Even though there
may not have been direct evidence that Young crossed a state line on
that date, there was ample circumstantial evidence from which the
jury could reasonably have concluded that Young crossed a state line
on the day in question.

First, the evidence showed that Young resided in Hyattsville,
Maryland, and there was no evidence or suggestion that he did not
sleep at his residence the night before. To the contrary, on November
17, Young called Haamid at 5:30 a.m., presumably before he departed
for work that day. Because the noontime encounter occurred in Wash-
ington, D.C., at Haamid's place of work, Young would have had to
cross a state line from his residence in Maryland to the District of
Columbia.

In addition, Young's supervisor at the Nixon Uniform Company,
where Young worked, testified that during the period which included
November 17, 1997, from Monday through Thursday, Young picked
up his delivery truck in Brentwood, Maryland, early in the morning
between 5:00 and 6:00 a.m., and made deliveries in the District of
Columbia and northern Virginia. To get from Brentwood to Haamid's
place of work, again Young would have had to cross a state line.

Finally, Haamid testified that the ring that Young was returning to
her in Washington, D.C., on November 17, 1997, was the same ring
that she threw at him and left with him in his apartment in Hyattsville,
Maryland, two weeks earlier. Young had to cross a state line to
deliver this ring that he received in Maryland to Haamid at her place
of work in the District of Columbia. While the length of time that
transpired between Young's receiving the ring and giving it back to
Haamid might render this evidence somewhat attenuated when con-
sidered in isolation, in combination with the other evidence, it bolsters

                    5
the strong inference that Young crossed a state line to complete the
transaction which was at the heart of the conduct of conviction.

Young also argues that the evidence was insufficient to support the
jury's finding that on November 17, 1997, Haamid was placed in rea-
sonable fear of death or serious bodily injury."Serious bodily injury"
is defined in 18 U.S.C. § 1365(g)(3) as an injury involving "(A) a
substantial risk of death; (B) extreme physical pain; (C) protracted
and obvious disfigurement; or (D) protracted loss or impairment of
the function of a bodily member, organ, or mental faculty." While the
November 17 meeting in isolation may not have revealed proof of this
element, Haamid's willingness to meet Young and to accept back the
ring was prompted by her fear of Young which developed from the
months of violent incidents preceding November 17. Haamid testified
to Young's repeated violent episodes and unrelenting threats to her
safety, behavior that prompted Haamid to seek protection orders in
two jurisdictions.

In short, we hold that the evidence amply supports Young's con-
viction of interstate stalking in violation of 18 U.S.C. § 2261A.

III

Young next contends that the charges alleging violations of the
interstate stalking statute should have been dismissed because: (1) the
statute unconstitutionally intrudes into an area of the law traditionally
reserved to states in violation of the Tenth Amendment; (2) it
infringes upon the right to travel; and (3) Congress' Commerce
Clause powers do not authorize its enactment. We find these argu-
ments without merit.

Because the interstate stalking statute contains an interstate travel
requirement and prohibits the commission of a crime, its constitution-
ality is firmly established under existing Commerce Clause jurispru-
dence. See Cleveland v. United States, 329 U.S. 14, 19 (1946)
(upholding Mann Act prohibiting the transportation in interstate com-
merce of any woman or girl for the purpose of prostitution or
debauchery or for any other immoral purpose); Caminetti v. United
States, 242 U.S. 470, 491 (1917) (upholding White Slave Traffic Act
of 1910 making illegal inducing interstate travel of women for

                     6
immoral purposes); United States v. Bailey, 112 F.3d 758, 766 (4th
Cir. 1997) (upholding 18 U.S.C. § 2261(a) making it illegal to travel
across a state line with the intent to injure, harass, or intimidate a
spouse or intimate partner and intentionally commit a crime of vio-
lence against that person). Like the statutes upheld in these cases, the
interstate stalking statute requires interstate travel, "thus placing the
transaction squarely in interstate commerce." Bailey, 112 F.3d at 766.
And the statute requires the commission of the crime of stalking,
which is not significantly different from the conduct proscribed in the
statutes upheld in Cleveland, Caminetti , and Bailey.

Moreover, the interstate stalking statute does not infringe on any
right to travel. A person remains free to travel from state to state but
may not, consistent with the statute, do so with the intent of injuring
or harassing another person and with the effect of placing that person
in fear of death or serious bodily injury.

IV

We also reject Young's arguments that the interstate stalking stat-
ute is unconstitutionally vague on its face and as applied to him and
that the statute violates due process by criminalizing thoughts or
intentions.

It is axiomatic that "[d]ue process requires that a criminal statute
provide adequate notice to a person of ordinary intelligence that his
contemplated conduct is illegal, for `no man shall be held criminally
responsible for conduct which he could not reasonably understand to
be proscribed.'" Buckley v. Valeo, 424 U.S. 1, 77 (1976) (quoting
United States v. Harriss, 347 U.S. 612, 617 (1954)). The Supreme
Court has noted, however, that "vagueness challenges to statutes
which do not involve First Amendment freedoms must be examined
in the light of the facts of the case at hand." United States v. Mazurie,
419 U.S. 544, 550 (1975). Because Young's challenge to the inter-
state stalking statute does not implicate First Amendment concerns,
he must contend with the rule that "[o]ne to whose conduct a statute
clearly applies may not successfully challenge it for vagueness."
Parker v. Levy, 417 U.S. 733, 756 (1974); United States v. Bryan, 58
F.3d 933, 942 (4th Cir. 1995), abrogated on other grounds by United
States v. O'Hagan, 521 U.S. 642, 649-50 (1997).

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In this case, Young, in violation of a court protection order, repeat-
edly called Haamid on November 17, 1997, crossed a state line to
confront her at her workplace, and refused to leave unless she
accepted a ring from him. His pattern of conduct, of which the
November 17 incident was a part, featured repeated violent episodes
coupled with actual injury or persistent threats to her safety and peace
of mind. In this context, it was reasonable that Haamid was fearful of
serious bodily injury. Young's conduct on November 17, 1997, thus
fit squarely within the scope of conduct prohibited by the interstate
stalking statute, and he therefore may not challenge the statute as
vague. Cf. Bryan, 58 F.3d at 941-42 (holding that defendant could not
challenge for vagueness provision of mail fraud statute prohibiting
schemes to defraud others of their intangible right to honest services
because provision clearly applied to defendant's conduct while lottery
director).

Moreover, when Young contends that the statute transgresses due
process limitations by punishing thoughts or intentions, he mischarac-
terizes the stalking statute. Mere intentions to harm or harass a person
are not the essence of the statute's prohibition. Rather, to be convicted
under the statute, a defendant must also trigger in the victim reason-
able fear of death or serious bodily injury.

V

Finally, Young challenges aspects of his sentence. He contends that
the district court erred (1) by failing to give him credit toward the sen-
tence for his time spent in state custody, and (2) in imposing his sen-
tence to run consecutively to his undischarged state sentence.

Under 18 U.S.C. § 3585(b)(1), a defendant"shall be given credit
toward the service of a term of imprisonment for any time he has
spent in official detention prior to the date the sentence commences
. . . as a result of the offense for which the sentence was imposed."
(Emphasis added). Young's state detention, however, did not result
from the same conduct that comprised his interstate stalking offense.
Young was detained in state custody for a probation violation based
on events that occurred in June 1997, whereas the conduct that led to
his federal conviction occurred in November 1997. While the conduct
in June and the conduct in November were arguably a result of the

                     8
same pattern of conduct, time served in state custody was properly not
credited toward Young's federal sentence.

Young's argument that it was error to impose his federal sentence
consecutive to his state sentence is also without merit. The Sentencing
Guidelines do provide that if an undischarged term of imprisonment
"resulted from offense(s) that have been fully taken into account in
the determination of the offense level for the instant offense, the sen-
tence for the instant offense shall be imposed to run concurrently to
the undischarged term of imprisonment." U.S.S.G.§ 5G1.3(b). But
Young's state sentence was not "fully taken into account" in the sen-
tence imposed in this case. The conduct of conviction occurred in
November 1997; the conduct of state conviction occurred in June
1997. Also, in enhancing the federal sentence, the district court did
not rely on the conduct of state conviction. The district court adjusted
Young's sentence upward based on factors listed in U.S.S.G.
§ 2A6.2(b)(1), which provides that the base offense level is increased
by 4 levels if the offense involved more than one of the following:
"(A) the violation of a court protection order; (B) bodily injury; (C)
possession, or threatened use, of a dangerous weapon; or (D) a pattern
of activity involving stalking, threatening, harassing, or assaulting the
same victim." The district court adjusted Young's sentence upward
based on his violation of the November 3, 1997 protection order and
the bodily injury sustained by Haamid in March 1997, but not on the
events of the state offense which occurred in June 1997.

Finding no reversible error, we affirm the judgment of the district
court.

AFFIRMED

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