                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                             _________________________                U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                           AUGUST 23, 2001
                                     No. 99-4094                         THOMAS K. KAHN
                             _________________________                        CLERK
                          D. C. Docket No. 97-00660-CR-UUB

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee-Cross-Appellant,

                                             versus

BRADLEY FULFORD, LEONARDO GAGE,

                                                  Defendants-Appellants-Cross-Appellees.

                            ____________________________

                      Appeals from the United States District Court
                          for the Southern District of Florida
                          ____________________________
                                   (August 23, 2001)




Before MARCUS, WILSON and MAGILL*, Circuit Judges.




______________________________________________
*Honorable Frank J. Magill, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
MAGILL, Circuit Judge:

      Appellants Bradley Fulford and Leonardo Gage were convicted of various

federal offenses stemming from their participation in a carjacking conspiracy.

Fulford and Gage appeal their convictions, and the government cross-appeals,

claiming that the district court erred in failing to sentence Gage to life

imprisonment under the federal "three strikes" statute, 18 U.S.C. § 3559. We

affirm Appellants' convictions, but reverse Gage's sentence and remand for

resentencing.



                                           I.

      On February 18, 1997, Luis Iglesias drove his Chevrolet Blazer to the Miami

home of Otto Regalado, where he parked the Blazer in the driveway and began to

work on it. Shortly thereafter, Leonardo Gage arrived and directed Regalado to

page Bradley Fulford. Fulford returned the page and spoke with Gage, discussing

the Blazer and its location. A short while later, Fulford arrived at Regalado's house

wearing black jeans, a black sweater, and a ski mask. Fulford pointed a chrome-

plated semi-automatic handgun at Iglesias, who was sitting in the driver's seat of

the Blazer. Fulford told Iglesias to "[g]et the fuck out of the car." After Iglesias

got out of the car and moved to the other side of the street, Fulford drove away in

the Blazer.
      As Fulford drove off, Iglesias dialed 911. The Metro Dade Police responded

and, as a result of their investigation, the Blazer was found later that night parked

in the backyard of Gage's home, a few blocks away from the site of the carjacking.

Fulford and Gage were arrested and questioned by the FBI. Both confessed their

involvement in the carjacking.

      A grand jury in Miami issued a three-count indictment charging Fulford and

Gage with various carjacking and firearms violations. The indictment charged

Fulford and Gage with conspiracy to carjack a vehicle at gunpoint, conspiracy to

carry a firearm in relation to a crime of violence, and conspiracy to obstruct a

criminal investigation, all in violation of 18 U.S.C. § 371. In addition to the

conspiracy offenses, the indictment charged Fulford and Gage with carjacking, in

violation of 18 U.S.C. § 2119, and carrying a firearm in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c).

      Prior to trial, the government filed an Information notifying Gage that if

convicted, he faced mandatory life imprisonment under § 3559. Fulford and Gage

were tried jointly. At that trial, Fulford took the stand and admitted that he had

stolen the Blazer from Iglesias at gunpoint. The jury returned a guilty verdict

against Fulford on all counts, and against Gage on the conspiracy count. The

district court sentenced Fulford to 138 months imprisonment and Gage to 60

months imprisonment. Fulford and Gage raise numerous issues on appeal
concerning their convictions and sentences. The government cross-appeals the

district court's failure to sentence Gage to life imprisonment under the federal

"three strikes" statute, § 3559.

                                         II.

A.    Sufficiency of the Evidence

      Fulford contends that the evidence presented at trial was insufficient to

satisfy the specific intent requirement of the federal carjacking statute, § 2119. We

review this contention de novo, viewing the evidence in the light most favorable to

the government and drawing all reasonable inferences and credibility choices in

favor of the jury's verdict. See United States v. Trujillo, 146 F.3d 838, 845 (11th

Cir. 1998).

      To constitute carjacking under § 2119, the taking of a motor vehicle must be

committed with the "intent to cause death or serious bodily harm." 18 U.S.C. §

2119. The intent requirement of § 2119 is satisfied where 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." Holloway v. United States, 526 U.S. 1, 12 (1999). The

defendant's intent "'is to 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. Guilbert, 692 F.2d 1340, 1344 (11th Cir. 1982) (citation omitted).
       In this case, Fulford put a gun to Iglesias's face and told him to "[g]et the

fuck out of the car." Iglesias testified that he feared for his life, and Fulford

testified that he had been previously convicted of armed robbery. This evidence is

sufficient for a reasonable jury to conclude that Fulford had the conditional intent

to kill or seriously harm Iglesias if necessary to steal the Blazer.

B.     Bruton

       Fulford asserts for the first time on appeal that the district court erred in

admitting evidence of two taped conversations between his co-defendant, Gage,

and an informant, discussing Fulford's involvement in the theft of the Blazer. As a

result of Fulford's failure to raise this claim before the district court, we review the

district court's decision for plain error. See United States v. Brazel, 102 F.3d 1120,

1141 (11th Cir. 1997). To meet the plain error standard, Fulford must show that:

(1) the trial court erred; (2) the error was plain, clear, or obvious; and (3) the error

affected his substantial rights. See id. Here, even assuming that the first two

elements of the plain error standard are met, Fulford has failed to show that the

trial court's error affected his substantial rights.

       Fulford asserts that the taped conversations between Gage and the informant

constituted facially incriminating statements of a nontestifying co-defendant and,

thus, that their admission constitutes a violation of his Sixth Amendment rights

under Bruton v. United States, 391 U.S. 123 (1968). At trial, Fulford took the
stand in his own defense and admitted his participation in the theft. Therefore,

even if the challenged statements showed that Fulford was involved in the theft of

Iglesias's vehicle, their admission provided the jury with no additional evidence

incriminating Fulford. Accordingly, admission of the challenged tapes did not

affect Fulford's substantial rights, and thus the district court did not commit plain

error in admitting them.



C.     Jury Instructions

       Fulford and Gage challenge various jury instructions given by the district

court, as well as the court's failure to give other requested instructions. Our review

of a trial court's jury instructions is limited; if the instructions accurately reflect the

law, the trial judge is given wide discretion as to the style and wording employed

in the instruction. Trujillo, 146 F.3d at 846. Under this standard, "'we examine

whether the jury charges, considered as a whole, sufficiently instructed the jury so

that the jurors understood the issues and were not misled.'" Carter v. DecisionOne

Corp., 122 F.3d 997, 1005 (11th Cir. 1997) (citation omitted). "We will reverse

the district court because of an erroneous instruction only if we are 'left with a

substantial and ineradicable doubt as to whether the jury was properly guided in its

deliberations.'" Id. (quoting Johnson v. Bryant, 671 F.2d 1276, 1280 (11th Cir.

1982)).
      "We review a district court's refusal to give a requested jury instruction for

abuse of discretion." United States v. Condon, 132 F.3d 653, 656 (11th Cir. 1998).

We will find reversible error in the refusal to give a requested instruction only if:

(1) the requested instruction correctly stated the law; (2) the actual charge to the

jury did not substantially cover the proposed instruction; and (3) the failure to give

the instruction substantially impaired the defendant's ability to present an effective

defense. United States v. Martinez, 83 F.3d 371, 376 (11th Cir. 1996).

      1.     Intent Instruction

      Fulford asserts that the district court erred in refusing to give his proposed

instruction on the intent required for carjacking under § 2119. Fulford's requested

intent instruction stated: "Evidence that the defendant used a gun to frighten the

victim is not sufficient in and of itself to prove intent to harm." The district court

gave the following instruction on the requisite intent for carjacking:

      The defendant can be found guilty only if . . . the defendant intended
      to cause death or serious bodily harm when the defendant took the
      motor vehicle.

      Whether the defendant 'intended to cause death or serious bodily
      harm' is to be judged objectively from the conduct of the defendant as
      disclosed by all the evidence in the case and from what one in the
      position of the alleged victim might reasonably conclude. If, after
      considering all of the evidence and what one in the position of the
      alleged victim might reasonably conclude, you find beyond a
      reasonable doubt that the defendant intended to cause death or serious
      bodily injury in the event that Luis Iglesias failed to relinquish control
      of his automobile, this is a sufficient basis for finding that the
      government has proved the fourth element of the offense, specifically
      that the defendant intended to cause death or serious bodily injury.

      The district court's instruction directly addressed the subject of the requested

instruction, i.e., Fulford's intent, and correctly directed the jury to judge his intent

objectively from his conduct as disclosed by all the evidence in the case, and from

what one in the position of the victim might reasonably conclude. Furthermore,

the court's failure to give the requested instruction in no way impaired Fulford's

ability to argue to the jury that his conduct indicated that he intended to frighten

Iglesias, not that he intended to cause death or serious bodily injury. Fulford

testified at trial that the gun he pointed at Iglesias was a BB gun, though he had

indicated to the FBI that he had used a real gun. The district court instructed the

jury to evaluate the credibility of Fulford's testimony "in the same way as that of

any other witness." In closing, Fulford's counsel argued, on the basis of Iglesias's

testimony, that Fulford's objective conduct did not indicate an intent to cause

serious bodily harm or death.

      We conclude that the district court's actual charge to the jury substantially

covered Fulford's requested intent instruction and did not substantially impair his

ability to present an effective defense. Therefore, the district court did not abuse

its discretion by refusing to give Fulford's proposed instruction.

      2.     Conspiracy Instruction
      Gage challenges the district court's instruction on the conspiracy count.

Specifically, he contends that the instruction impermissibly allowed the jury to

convict him of either conspiracy to carjack or conspiracy to violate § 924(c).

Because Gage failed to object to the instruction below, we review the instruction

for plain error. See Brazel, 102 F.3d at 1140. This court previously has held that

where an indictment alleges a conspiracy to commit several offenses, the charge is

sustained by proof of conspiracy to commit any one of the offenses. United States

v. Ross, 131 F.3d 970, 984 (11th Cir. 1997). Therefore, the jury properly could

have convicted Gage of either conspiracy to carjack or conspiracy to violate §

924(c). Accordingly, the district court did not err in so instructing the jury.

      3.     Supplemental Instruction

      Gage next asserts that the district court gave an erroneous supplemental

instruction in response to a jury question. During deliberation, the jury asked the

court whether the word "before," in an instruction explaining the conspiracy

charge, meant "before the incident or any time prior to the arrest, including after

the incident." The court read the question into the record and engaged in a lengthy

colloquy with the parties. At the end of that colloquy, the court read its proposed

instruction, which stated:

      You must be able to find beyond a reasonable doubt that the
      defendant joined the conspiracy before the carjacking was completed.
      It is up to you, from your consideration of all the evidence, both
      before and after the incident, to decide when the carjacking was
      completed and who became a member of the conspiracy to carjack the
      car.



Gage's attorney responded:

      Judge, for the record, in light of the Court's consideration of the issue
      Mr. Black brought up, the instruction is acceptable to us. It's still our
      point of view that as a matter of law the carjacking ends - that you
      can't join the conspiracy once the car is actually taken.

The court then suggested that the parties research the question of when a

carjacking ends, so that they would have an answer in the event that the jury asked

for further clarification of the supplemental instruction. Based on the parties'

research, Gage requested an instruction that the carjacking was completed no later

than the completion of flight from the robbery. The court refused to give this

instruction because there was no flight in this case and because the jury was

continuing to deliberate and had not asked for further clarification.

      Gage now contends that the district court's supplemental instruction was

erroneous and that when the conspiracy ended was a question of law rather than a

question of fact for the jury. However, it is clear from the record that at the time

the instruction was given, Gage had indicated that it was acceptable to him. "It is 'a

cardinal rule of appellate review that a party may not challenge as error a ruling or

other trial proceeding invited by that party.'" Ross, 131 F.3d at 988 (citation
omitted). Accordingly, having agreed to the court's proposed instruction, Gage

appears to have waived his right to challenge that instruction on appeal.

      Gage attempts to argue that his acceptance of the court's instruction did not

render it invited error because his counsel later requested an additional instruction

based on subsequent research. Gage's argument is without merit. The record is

clear that immediately before the court gave the instruction to the jury, Gage's

counsel stated "the instruction is acceptable to us." Gage's attempt, some five

hours later, to submit an additional instruction to the jury has no bearing on his

earlier unconditional acceptance of the court's instruction. Furthermore, we note

that Gage does not appeal the district court's refusal to give his additional proposed

instruction. Accordingly, because we find that the district court relied upon Gage's

explicit acceptance of its proposed instruction in submitting that instruction to the

jury, we conclude that Gage has waived his right to appeal that instruction.

Because we hold that Gage invited the district court's supplemental instruction, we

need not reach his contention that the instruction constituted plain error.

D.    Three Strikes

      The government cross-appeals, contending that the district court erred in

failing to sentence Gage to life imprisonment under the federal "three strikes"

statute, § 3559. We review the application of law to sentencing issues de novo.

United States v. Manella, 86 F.3d 201, 203 (11th Cir. 1996).
      Prior to trial, the government served Gage with an Information, notifying

him that upon conviction he faced a mandatory life sentence under § 3559, based

on two prior serious violent felony convictions in Florida courts. One of these

convictions was for aggravated assault. However, at sentencing, the district court

concluded that it could not look beyond the judgment in the aggravated assault

case to determine whether the Florida conviction constituted a serious violent

felony for purposes of § 3559. As a result, the court declined to impose a

mandatory life sentence.

      The government asserts that in determining whether Gage's prior conviction

qualified as a serious violent felony, the court was required to consider not only the

judgment of conviction, but also the underlying aggravated assault Information.

The government further argues that because the Information reveals that Gage

committed assault with a firearm, the offense qualifies as a "strike" under § 3559.

Thus, the central inquiry is whether § 3559 allowed the district court to consider

the Florida Information in determining if that conviction qualifies as a serious

violent felony. Section 3559 states, in pertinent part:

      Notwithstanding any other provision of law, a person who is
      convicted in a court of the United States of a serious violent felony
      shall be sentenced to life imprisonment if . . . the person has been
      convicted . . . on separate prior occasions in a court of the United
      States or of a State of . . . 2 or more serious violent felonies.

18 U.S.C. § 3559(c)(1)(A)(i). Section 3559 defines "serious violent felony," as
related to Gage's conviction for aggravated assualt, as "a Federal or State offense,

by whatever designation and wherever committed, consisting of . . . firearms use."

18 U.S.C. § 3559(c)(2)(F)(i). The phrase "firearms use" is defined in § 3559 as

      an offense that has as its elements those described in section 924(c) . .
      . if the firearm was brandished, discharged, or otherwise used as a
      weapon and the crime of violence . . . during and relation to which the
      firearm was used was subject to prosecution in a court of the United
      States or a court of a State, or both.

18 U.S.C. § 3559(c)(2)(D).

      Whether a crime qualifies as a "serious violent felony" ordinarily is

determined by looking to the statutory definition of the crime in question, rather

than to the evidence presented to prove that crime. United States v. Kennedy, 133

F.3d 53, 56 (D.C. Cir. 1998). In the context of § 924(e), the Supreme Court has

held that in evaluating prior convictions for enhancement purposes, the trial court

generally is required to look only to the fact of conviction and the statutory

definition of the prior offense. Taylor v. United States, 495 U.S. 575, 602 (1990).

However, the Taylor Court went on to suggest that this categorical approach "may

permit the sentencing court to go beyond the mere fact of conviction in a narrow

range of cases. . . ." Id. Specifically, the Court held that in a burglary case where

the state burglary statute encompassed some offenses that would satisfy the

enhancement statute and others that would not, the court could look at the charging

paper and jury instructions to determine if the defendant was actually convicted of
an offense satisfying the enhancement statute. Id.

      This court discussed the Taylor approach in a case involving sentencing

enhancement under U.S.S.G. § 4B1.2. United States v. Spell, 44 F.3d 936 (11th

Cir. 1995). Although observing that the Sentencing Guidelines explicitly reject the

categorical approach embraced in Taylor, the court recognized that even under the

Guidelines approach, "the ability to 'look behind' state convictions in a federal

sentencing proceeding is very limited." Id. at 939. However, consistent with

Taylor, the court held that "a district court . . . may inquire into the conduct

surrounding a conviction if ambiguities in the judgment make the crime of violence

determination impossible from the face of the judgment itself," and that in doing

so, "[t]he inquiry is limited to examining easily produced and evaluated court

documents, including the judgment of conviction, charging papers . . . ." Id.

      Though none of the cases cited by either party directly addresses the analysis

of prior convictions under § 3559, there is no compelling reason to read the "three

strikes" provision differently than other federal sentence enhancement statutes.

Accordingly, under Taylor and Spell, the district court could have looked to the

indictment if there was an ambiguity in the judgment. Here, as in Taylor, the state

statute under which Gage was charged encompassed some offenses that would

satisfy the enhancement statute, and others that would not. Specifically, Fla. Stat.

Ann. § 784.021 defines aggravated assault, in pertinent part, as "an assault . . .
[w]ith a deadly weapon without intent to kill." Fla. Stat. Ann. § 784.021(1)(a)

(West 2000). Under Florida law, a firearm is a deadly weapon, which is defined as

a weapon likely to produce death or great bodily harm. Dey v. State, 182 So.2d

266, 268 (Fla. 2d DCA 1966). Under § 3559(c)(2)(F)(i), firearms use is a serious

violent felony that may be used as a predicate conviction in imposing a life

sentence. The term "firearms use" is defined in § 3559(c)(2)(D) as "an offense that

has as its elements those described in section 924(c) . . . if the firearm was

brandished, discharged, or otherwise used as a weapon . . . ." 18 U.S.C. §

3559(c)(2)(D).

      Accordingly, under the Florida statute, some aggravated assaults would

satisfy the definition of "firearms use" under § 3559(c)(2)(D), while others,

involving deadly weapons other than firearms, would not. As in Taylor, this

ambiguity permits the sentencing court to look at the charging paper to determine

if the defendant was actually convicted of an offense satisfying the enhancement

statute. In this case, the Information to which Gage pled nolo contendere charged

that he "did unlawfully, feloniously and intentionally threaten by word or act to do

violence to the person of another . . . coupled with an apparent ability to do so and

did some act, to wit: Pointed a firearm at or in the direction of [the victim] and/or

shot at or in the direction of [the victim]." As this Information confirms that

Gage's earlier conviction was for a crime that would satisfy the definition of
"firearms use" under § 3559(c)(2)(D), he is subject to a mandatory sentence of life

imprisonment under § 3559(c)(1). Therefore, because the district court erred in

concluding that it could not consider the Florida Information in determining

whether Gage's prior aggravated assault conviction qualifies as a "serious violent

felony" under § 3559, we reverse Gage's sentence.

                                          IV.

      Based upon the foregoing, we AFFIRM the convictions of Fulford and

Gage. However, we REVERSE Gage's sentence and REMAND for resentencing

under the federal "three strikes" statute, § 3559.
