           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    United States v. Cline                     No. 02-5966
        ELECTRONIC CITATION: 2004 FED App. 0088P (6th Cir.)
                    File Name: 04a0088p.06                              Charles P. Wisdom, Jr., Kenneth R. Taylor, Marianna Jackson
                                                                        Clay, ASSISTANT UNITED STATES ATTORNEY,
                                                                        Lexington, Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS
                                                                                           _________________
                  FOR THE SIXTH CIRCUIT
                    _________________                                                          OPINION
                                                                                           _________________
 UNITED STATES OF AMERICA , X
                                                                          ALDRICH, District Judge. This case concerns the
             Plaintiff-Appellee, -                                      conviction and sentencing of a Kentucky man for carjacking,
                                   -
                                   -   No. 02-5966                      possession of firearms while subject to a domestic violence
            v.                     -                                    order, and carrying a firearm during a crime of violence.
                                    >                                   Because the district court did not abuse its discretion in any
                                   ,                                    of the matters raised by the appellant, we AFFIRM its
 PHILLIP CLINE ,                   -
          Defendant-Appellant. -                                        decision.
                                  N                                                           I. Background
       Appeal from the United States District Court
     for the Eastern District of Kentucky at Pikeville.                   Defendant Phillip Cline (hereinafter “Cline”) has a long
    No. 01-00056—Danny C. Reeves, District Judge.                       history of domestic violence. His wife, Jeana Marcum
                                                                        (hereinafter “Marcum”), has sought protective orders against
                  Submitted: October 24, 2003                           him on at least four occasions, and the pair’s last attempt at
                                                                        reconciliation led to the incidents at issue in this case.
              Decided and Filed: March 26, 2004
                                                                          In April of 2001, renewed contact between husband and
    Before: KENNEDY and GIBBONS, Circuit Judges;                        wife led Marcum to seek an amendment to the domestic
              ALDRICH, District Judge.*                                 violence order then in place against Cline. That order,
                                                                        entered December 12, 2000 and scheduled to terminate
                      _________________                                 December 12, 2003, required Cline to stay at least 500 feet
                                                                        away from Marcum and members of her family, not to
                           COUNSEL                                      commit further acts of domestic violence, and not to dispose
                                                                        of or destroy jointly held property. Pursuant to Marcum’s
ON BRIEF: Stephen W. Owens, STEPHEN W. OWENS                            claim that she and Cline had “worked everything out,” the
LAW OFFICE, Pikeville, Kentucky, for Appellant.                         Martin County District Court amended the prior order,
                                                                        removing the “stay away” and “no contact” provisions. All
                                                                        other provisions of the December 2000 order remained in
                                                                        force.
    *
     The Honorab le Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                 1
No. 02-5966                       United States v. Cline      3    4       United States v. Cline                              No. 02-5966

  Relations between Cline and Marcum quickly deteriorated,            The three pursuers caught up with Smith and Marcum “on
however, and on April 19, 2001, Marcum sought to reinstate         a nearby road,” and mayhem ensued. Cline pummeled
the “no contact” and “stay away” provisions, citing new            Smith1, leaving him unconscious in the road, and then seized
instances of abuse. This petition was denied when Marcum           Marcum’s car, preventing her from escaping. He beat
failed to appear at a hearing on the issue.                        Marcum in the car, and then sped away, possibly over Smith’s
                                                                   supine figure. (Smith died in the road, but not before being
  It is clear that Cline possessed and used firearms while the     struck by at least one other passing car.) Marcum testified
December 2000 order remained in effect. At trial, Marcum           that Cline ignored her pleas and protestations, exclaiming
testified that she purchased guns in the “summertime” of           “you want Luther that bad, you are going to get him, you are
2001, and that she and Cline used them for deer hunting.           going to watch me run over him.” J.A. at 176.
Pawn broker Mark Jordan testified that Cline pawned a
Norinco SKS on August 7, 2001, and that in July of that year         Cline then drove Marcum back to DeLong’s trailer. Once
he sold several guns to Marcum in the presence of Cline.           inside the trailer, Cline exclaimed: “I’ve already killed
                                                                   Luther. You’ve seen too much. Now you are going to die,
  On August 11, 2001, Cline and Marcum sat drinking beer           bitch.” J.A. at 177. He continued to beat Marcum severely,
and talking, at the trailer of Okey DeLong in Martin County.       cracking three ribs and her skull, inducing swelling in her
Also in attendance were Butch Crum, Regina “Tiny”                  brain, breaking her tailbone, and inflicting several large
Newsome, and Newsome’s son, Kenny. Luther Smith arrived            bruises. Cline may have succeeded in carrying out his threat
while Crum and Newsome were away on a beer run.                    to kill his wife, had the police not arrived to arrest him.
  Inexplicably, the tenor of the conversation between Cline           On November 15, 2001, a grand jury indicted Cline on
and Smith began to change, from “joking around” and                charges of carjacking (Count 1), possession of firearms while
“kidding around,” to heated and angry. Cline began to direct       subject to a domestic violence order (Counts 2 through 5),
his anger toward Marcum, threatening to knock her through          and using and carrying a firearm during and in relation to a
a nearby wood shed and the like. Fearing for her safety,           crime of violence (Count 6), in violation of 18 U.S.C.
Marcum instructed Kenny to survey the proceedings, and to          §§ 2119, 922(g)(8)(B), and 924(c), respectively. During
call 911 or the sheriff’s office if Cline became violent. Cline    pretrial proceedings, Cline moved to dismiss Counts 2-5,
commenced hitting Marcum all the same, and so Marcum               arguing that the “dismissal” of the April 2001 domestic
seized the first available opportunity (when Cline went inside     violence petition removed any order then in force against him.
to use the restroom) to plead with Smith: “I told Luther to        In response, the government produced an affidavit from the
please help me ... I knew [Cline] was drinking, and I knew he      issuing judge, which affirmed that the December 2000 order
was going to hurt me.” J.A. at 173.                                remained in effect after April 2001. The district court
                                                                   thereafter denied Cline’s motion to dismiss, and granted a
  Smith took Marcum at her word, and departed with her in          government motion to bar defense counsel from reasserting
his car while Cline was still inside the trailer. Unfortunately,
Crum and Newsome soon returned, and offered their vehicle
to Cline for use in pursuing his fleeing wife.
                                                                       1
                                                                        Luther had left his car vo luntarily, vowing “I’m not afraid of Phillip,
                                                                   and he’s never going to hurt you again.” J.A. at 175.
No. 02-5966                       United States v. Cline      5    6     United States v. Cline                       No. 02-5966

this argument at trial. Defense counsel then unsuccessfully        prior order. In his affidavit, the Martin County issuing judge
moved to sever Counts 1 and 6 from the indictment.                 supported the government’s interpretation.
   The case proceeded to trial in February of 2002. A jury           Cline cites no law in support of his proposition that
convicted Cline of Counts 1 through 5, and found him not           accepting the affidavit of a state court judge as evidence of
guilty of Count 6, carrying a firearm during and in relation to    the status of a DVO violated his right to confront witnesses
a crime of violence in violation of 18 U.S.C. § 924(c). Over       against him. Cline cannot challenge the affidavit itself
defense counsel’s various objections, the district court           because his counsel failed to properly preserve the issue for
sentenced Cline to 220 months in prison, three years of            appellate review.
supervised release, and a special assessment of $500.
                                                                      Generally, an appellant cannot raise a claim before the
  On August 2, 2002, Cline filed a timely notice of appeal.        appellate court that was not raised below. In United States v.
                                                                   Bonds, 12 F.3d 540, 569 (6th Cir. 1993), this Court held that
                        II. Discussion                             a defendant waives his right to challenge the sufficiency of an
                                                                   affidavit when he fails to raise the challenge at the district
   Cline charges that the district court erred in four respects:   court level. Id. at 569. Where a defendant does not challenge
(1) by accepting a state court judge’s affidavit as evidence of    the evidence before the district court, he must demonstrate
the status of a domestic violence order; (2) by granting a         that admission of the evidence nonetheless constituted “plain
motion in limine barring the defense from challenging the          error.” See FED . R. EVID . 103(a)(1) and (d); FED . R. CRIM . P.
status of said order at trial; (3) by failing to sever Counts 1    52(b); United States v. Bray, 139 F.3d 1104, 1110 (6th Cir.
and 6 from the indictment; and (4) in its various                  1998).
enhancements of Cline’s sentence. Cline challenges the
enhancements of two levels for carjacking, two levels for            To establish plain error, Cline must demonstrate that: (1) an
making a threat of death during a carjacking, and two levels       error occurred; (2) the error was obvious or clear; (3) the error
for obstruction of justice. He also alleges that the district      affected his substantial rights; and (4) the error seriously
court improperly counted past convictions which may have           affected the fairness, integrity, or public reputation of the
been uncounseled.                                                  judicial proceedings. United States v. Koeberlein, 161 F.3d
                                                                   946, 949 (6th Cir. 1998). An error that does not affect a
A. The State Judge’s Affidavit                                     defendant’s substantial rights is harmless. See FED . R. CRIM .
                                                                   P. 52(a).
  Before the district court, Cline argued that he could not be
found guilty of possessing firearms while subject to a                Here, it is clear that Cline’s substantial rights were not
domestic violence order (DVO), because the last order              affected. A defendant’s right to confront witnesses at the pre-
obtained by his wife had been marked as “dismissed.” The           trial stage is substantially weaker than his right to do so at
government argued that the “dismissed” order (allowing             trial. United States v. Matlock, 415 U.S. 164, 173-75 (1974).
contact with Marcum for purposes of an attempted                   In ruling on the proper interpretation of the DVO, the district
reconciliation) was merely a modification of an existing and       court was entitled to give the evidence presented such weight
valid DVO, and that its dismissal did nothing to revoke the        as its judgment and experience counseled. See id. at 175.
                                                                   Again, Cline points to no case in which such conduct was
No. 02-5966                        United States v. Cline       7   8     United States v. Cline                       No. 02-5966

held to violate a defendant’s rights under the confrontation        515 U.S. at 525-26 (citations omitted). See also United States
clause.                                                             v. Craft, 105 F.3d 1123, 1126 (6th Cir. 1997)(quoting
                                                                    previous version of FED . R. CRIM . P. 12(b)); United States v.
B. The Motion in Limine                                             Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998) (motion in
                                                                    limine may be used to prevent introduction of evidence
   Cline next challenges the district court’s grant of the          supporting a defense whose elements cannot be established).
government’s motion in limine. Cline contends that, because
the status of the DVO was an element of the offenses charged          In fact, Cline acknowledged that the DVO issue was an
in Counts 2 through 5, the district court was required to let the   appropriate matter for pretrial resolution. On January 25,
jury determine that status.                                         2002, Cline filed a Motion to Dismiss Counts 2-5 of the
                                                                    indictment, arguing that he “was not under a domestic
  This court reviews a district court’s decision to exclude         violence order at the time of the incident in question.” J.A. at
evidence pursuant to a motion in limine for abuse of                103. (The government did not file its motion in limine until
discretion. United States v. Phibbs, 999 F.2d 1053, 1078 (6th       February 1, in conjunction with its reply to Cline’s motion to
Cir. 1993); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136,        dismiss. J.A. at 105-06.) In denying Cline’s motion, the
141 (1997). A district court abuses its discretion when it          district judge properly ruled on his DVO status as a matter of
relies on clearly erroneous findings of fact, when it               law. J.A. at 108-116; cf. Craft, 105 F.3d at 1126. Cline
improperly applies the law, or when it employs an erroneous         cannot now complain that the judge was not permitted to do
legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608,         so, merely because he is unsatisfied with the decision.
615 (6th Cir. 1995).
                                                                       Determining the legal meaning of the DVO did not require
  No abuse of discretion occurred. While the United States          trial of the general issue of guilt on any count and thus did not
Supreme Court has consistently reaffirmed its holding that a        invade the province of the jury. Cf. Craft, 105 F.3d at 1126;
jury must find a defendant guilty beyond a reasonable doubt         United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir.
of every element of a criminal offense, see, e.g., United States    1986). The jury instructions properly set forth each element
v. Gaudin, 515 U.S. 506, 510 (1995), Rule 12(b) of the              of 18 U.S.C. §922(g)(8), and the jury was instructed to
Federal Rules of Criminal Procedure permits a party to “raise       determine whether the government had proved each element
by pretrial motion any defense, objection, or request that the      beyond a reasonable doubt. Therefore, no abuse of discretion
court can determine without a trial of the general issue.” FED .    occurred.
R. CRIM . P. 12(b). As Chief Justice Rehnquist, concurring in
Gaudin, observed:                                                   C. The Unsevered Counts
  mixed questions of law and fact remain the proper                   Cline next claims that the district court erred in declining to
  domain of the trial court. Preliminary questions in a trial       sever Counts 1 and 6 (carjacking) from Counts 2-5
  regarding the admissibility of evidence, the competency           (possession of firearms while subject to a DVO), because his
  of witnesses, the voluntariness of confessions, the               possession of the guns was unrelated to the carjacking. The
  legality of searches and seizures, and the propriety of           district court determined that all of the charged offenses were
  venue, may be decided by the trial court.                         “acts or transactions connected together or constituting parts
                                                                    of a common scheme or plan” under the version of Federal
No. 02-5966                             United States v. Cline           9    10   United States v. Cline                       No. 02-5966

Rule of Criminal Procedure 8(a) then in force.2 We review                     D. The Sentencing Enhancements
the denial of a motion to sever for abuse of discretion. United
States v. Jacobs, 244 F.3d 503, 506 (6th Cir. 2001).                            Cline asserts that the district court erred by: (1) applying a
                                                                              two-level enhancement for committing a carjacking under the
  Cline’s brief argues that “[t]here was no evidence that                     United States Sentencing Guidleines § 2B3.1(b)(5); (2)
Counts 2, 3, 4 & 5 were part of the same transaction alleged                  counting past convictions which may have been uncounseled;
in Counts 1 & 6, nor that they were part of a common                          (3) applying a two-level enhancement for obstruction of
scheme.” Indeed, the government’s argument that every                         justice under USSG § 3C1.1; and (4)applying a two-level
count “involved domestic violence” against the same person,                   enhancement for making a threat of death during the
and that each count concerns events from “the summer of                       carjacking under USSG § 2B3.1(b)(2)(F).
1991 ... in the Eastern District of Kentucky,” might seem a
difficult fit with the standard set forth in Rule 8(a).                          “Legal conclusions regarding [application of the
                                                                              sentencing] guidelines are reviewed de novo; however, this
  Yet Cline fails to establish (or even to argue) that joinder of             circuit gives due deference to the district court’s application
the six Counts prejudiced him in any way. This omission is                    of the guidelines to the facts pursuant to 18 U.S.C.
fatal to Cline’s position, since Federal Rule of Criminal                     § 3742(a).” United States v. Smith, 320 F.3d 647, 657 (6th
Procedure 14 requires prejudice for an order of separate trials,              Cir. 2003) (citing Buford v. United States, 532 U.S. 59
and “an appellant must show that the denial of his motion for                 (2001)). Factual findings used to determine a defendant’s
severance of counts affected his ‘substantial rights’.” United                criminal history category are reviewed for clear error. United
States v. Cope, 312 F.3d 757,781 (6th Cir. 2002) (citing                      States v. Wilson, 168 F.3d 916, 922 (6th Cir. 1999).
United States v. Chavis, 296 F.3d 450, 461 (6th Cir. 2002)).
                                                                                Three of Cline’s four arguments may be disposed of briefly.
  Additionally, the district court’s limiting instructions,
which asked the jury to separately consider the evidence for                    1. Enhancement for Carjacking
each count and not to decide Cline’s guilt or innocence on one
count based on its decision on another (with the exception of                    United States Sentencing Guidelines § 2B3.1(b)(5) permits
Count 6), minimized any possible prejudice. See Jacobs, 244                   a two-level enhancement “[i]f the offense involved
F.3d at 507; Cope, 312 F.3d at 781.                                           carjacking.” U.S. SENTENCING GUIDELINES MANUAL
                                                                              § 2B3.1(b)(5) (2003). Carjacking is defined as “the taking or
                                                                              attempted taking of a motor vehicle from the person or
                                                                              presence of another by force and violence or by intimidation.”
                                                                              U.S. SENTENCING GUIDELINES MANUAL § 2B3.1, cmt. n. 1
                                                                              (2003).
                                                                                Cline argues that the district court’s application of this
                                                                              section constituted impermissible double counting, which
    2
      Rule 8(a) has since been amended to allow joinder of two or more        occurs if “the same aspect of a defendant’s conduct factors
offenses where they “are of the same or similar character, or are based on    into his sentence in two separate ways,” and neither Congress
the same act or transaction, or are connected with or constitute parts of a   nor the Sentencing Commission intended to impose multiple
common scheme or plan.” F ED . R. C RIM . P. 8(a).
No. 02-5966                       United States v. Cline     11    12   United States v. Cline                       No. 02-5966

penalties. United States v. Farrow, 198 F.3d 179, 193-94 (6th        The United States Supreme Court rejected a similar
Cir. 1999).                                                        argument in Parke v. Raley, 506 U.S. 20, 31 (1992),
                                                                   remarking that “[a]t the time the prior conviction at issue in
   Cline’s only citation in support of this argument is to         Burgett was entered, state criminal defendants' federal
Farrow, in which we determined that it was impermissible           constitutional right to counsel had not yet been recognized,
double-counting to employ Farrow’s act of using his vehicle        and so it was reasonable to presume that the defendant had
as a dangerous weapon both to convict him of aggravated            not waived a right he did not possess.” Parke reaffirmed the
assault and to enhance his sentence (for “otherwise using” a       application of a presumption of regularity to state court
dangerous weapon, i.e., the same vehicle). Id. at 195.             proceedings, even as to the waiver of counsel, and Cline cites
However, Cline fails to note the language in Farrow                no precedent to support his contention that said presumption
observing that “the Sentencing Guidelines expressly mandate        “does not apply in this matter.”
double counting under some circumstances through the
cumulative application of sentencing adjustments.” Id. at            In relying on this presumption to compute Cline’s criminal
194. For example, “Congress has clearly indicated its intent       history score, the district court did not err.
to punish cumulatively violations of §§ 2119 and 924(c) [the
federal carjacking statute and the provision for enhanced            3. Enhancement for Obstruction of Justice
punishment for using a dangerous or deadly weapon during a
violent crime, respectively].” United States v. Johnson, 22           Cline argues that the district court erred by applying a two-
F.3d 106, 108 (6th Cir. 1994) (quoting United States v.            level enhancement for obstruction of justice without first
Singleton, 16 F.3d 1419, 1425 (5th Cir. 1994)), cited in           making the necessary findings. Section 3C1.1 of the
Farrow, 198 F.3d at 194.                                           sentencing guidelines provides for such an enhancement
                                                                   where “the defendant willfully obstructed or impeded, or
  Given this express mandate, the district court properly          attempted to obstruct or impede, the administration of justice
imposed the enhancement for carjacking.                            during the course of the investigation, prosecution, or
                                                                   sentencing of the instant offense of conviction,” and the
  2. Counting Past Convictions                                     obstructive conduct related to the offense. U.S. SENTENCING
                                                                   GUIDELINES MANUAL § 3C1.1; see also United States v.
   Cline also argues that the district court erred in computing    Dunham, 295 F.3d 605, 609 (6th Cir. 2002).
Cline’s criminal history score, by counting past convictions
which may have been uncounseled. Cline appears to contend             The Commentary to § 3C1.1 provides a “non-exhaustive
that, in order to legitimately rely on the convictions listed in   list” of examples of conduct which may result in an
paragraphs 106, 107, 108, 110, 111, and 113 of the                 enhancement for obstruction of justice, including
presentence investigation report, the district court was           “committing, suborning, or attempting to suborn perjury,”
required to find that Cline was represented by counsel, or         U.S. SENTENCING GUIDELINES MANUAL § 3C1.1, cmt. n. 4(b)
explicitly waived his right to counsel, in each case. Cline        (2003), and “providing materially false information to a judge
cites Burgett v. Texas, 389 U.S. 109 (1967) for the principle      or magistrate,” id., n. 4(f). The Commentary defines as
that “[p]resuming waiver of counsel from a silent record is        “material” any “information that, if believed, would tend to
impermissible.” Id. at 114-15.                                     influence or affect the issue under determination,” id., n. 6.
                                                                   The Commentary also cautions that
No. 02-5966                       United States v. Cline    13    14       United States v. Cline                         No. 02-5966

  [i]n applying this provision in respect to alleged false        Court upheld enhancements for obstruction based on similar
  testimony or statements by the defendant, the court             perjurious testimony. The district court did not abuse its
  should be cognizant that inaccurate testimony or                discretion in this case.
  statements sometimes may result from confusion,
  mistake, or faulty memory and, thus, not all inaccurate           4. “Threat of Death” During the Carjacking
  testimony or statements necessarily reflect a willful
  attempt to obstruct justice.                                      The most difficult question posed by Cline’s appeal
                                                                  involves the propriety of an enhancement for making a threat
Id., n. 2.                                                        of death during the carjacking, under § 2B3.1(b)(2)(F).
                                                                  Section 2B3.1 of the Guidelines allow enhancement “if a
  The district court in this case identified several areas of     threat of death was made” during a robbery. U.S.
perjurious testimony by Cline, including:                         SENTENCING GUIDELINES MANUAL § 2B3.1(b)(2)(F). Cline
                                                                  contends that “any threats were made after the taking of the
  Cline’s statement under oath that he did not drive the car      vehicle had been accomplished.” Appellant’s Br. at 9.
  away, that [Marcum] drove the car and he was invited
  along with her ... that he went up the coal mine road to          As the district court correctly observed, a vote to convict
  get away from Luther Smith when Luther returned ...             necessarily implies that the jury believed Marcum’s
  [and] that he didn’t want to have a further confrontation       description of the events leading up to the apprehension of
  with him.                                                       Cline by the police. Marcum’s testimony was that she
                                                                  regained consciousness upon arrival at DeLong’s trailer,
J.A. at 225-26. The district court explicitly found that these    “[a]nd we went in the house, and no one was there.” J.A. at
statements constituted “sufficient testimony in evidence to       177. Asked “what happened next,” Marcum responded:
support [the enhancement for] obstruction of justice.” J.A. at
227. Because “the jury had to disbelieve [Cline] entirely to        [Cline] punched me and knocked me over the kitchen
convict him,” J.A. at 225, the court found that the obstructive     table. And I got back up, and he punched me again.
conduct was sufficiently related to the offense of conviction.      That’s when he chipped my right front tooth. And then
                                                                    he told me that I had seen too much and [his] exact
   Cline challenges this finding by reference to United States      words were, “I’ve already killed Luther. You’ve seen too
v. Tackett, 193 F.3d 880, 886-87 (6th Cir. 1999), charging          much. Now you are going to die, bitch.”
that Tackett requires a sentencing judge to specify particular
elements of “substantial interference.” Because Tackett           Id. From this, it is clear that the threat of death in question3
addressed the proper procedure for sentencing under               occurred after Cline and Marcum returned to DeLong’s trailer
Guidelines § 2J1.2(b), which applies to convictions for           and exited the purloined vehicle. Enhancement for this threat
perjury, rather than § 3C1.1, it is of little guidance here.      under § 2B3.1(b)(2)(F) would require a finding that it was
                                                                  made “during” the robbery/carjacking, i.e. that the act of
  The facts at bar bear a closer likeness to United States v.
Paul, 57 Fed. Appx. 597, 612, 2003 WL 173059, at *14 (6th
Cir. 2003) and United States v. Miller, 45 Fed. Appx. 359,
                                                                       3
364, 2002 WL 1894647, at *4-5 (6th Cir. 2002), in which this            The government does not seek to justify this enhancement based on
                                                                  any threats made to or regarding the owner of the vehicle, Luther Smith.
No. 02-5966                        United States v. Cline     15    16       United States v. Cline                          No. 02-5966

carjacking did not terminate when Cline and Marcum left the         intent4 and accords with that circuit’s “interpretation of
vehicle.                                                            sentencing enhancement regimes generally.” Vazquez-Rivera,
                                                                    135 F.3d at 178. Courts have arrived at similar conclusions
   Determining the duration of a carjacking has proved a            in measuring the duration of carjacking for purposes of mens
thorny task for the federal courts. In United States v.             rea. See United States v. Lebron-Cepeda, 324 F.3d 52, 62
Vazquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998), the First        (1st Cir. 2003)(Howard, J., concurring); United States v.
Circuit acknowledged the “the not insubstantial problem of          Jones, 2003 U.S.Dist. LEXIS 9933 (E.D.Pa. 2003)(adopting
delineating the precise temporal limits of the crime of             reasoning of Howard, J., on the issue “of the length or
carjacking.” And while that court opined that it “need not          definition of taking when there’s an extended carjacking
provide a comprehensive answer to this problem,” it                 involving the continued presence of the victim.”)
proceeded to uphold an enhancement for serious bodily injury
where the defendant used a firearm first to obtain possession          Similarly, the Ninth Circuit has reasoned that a carjacking
of the victim’s car, and then “to intimidate her immediately        continues until the victim is “permanently separated from her
prior to raping her.” Id. Although the rape occurred outside        car.” United States v. Hicks, 103 F.3d 837, 844 n.5 (9th Cir.
of the vehicle, the court held that “the injuries covered are not   1996). The District Court of Puerto Rico has upheld an
limited to those resulting from the ‘taking’ of a vehicle, but      enhancement for serious bodily injury where a rape took place
also include those caused by the carjacker at any point during      in an apartment, but the defendant “was still in full control of
his or her retention of the vehicle.” Id. (citing United States     the carjacked vehicle, as he retained the keys to the car, had
v. Cruz, 106 F.3d 1134, 1137 (3rd Cir. 1997) (holding that a        a victim in its trunk, and the owner under his command.”
woman raped during a carjacking was a “victim” of the               United States v. Gonzalez-Mercado, 239 F.Supp.2d 148, 150
carjacking for sentencing purposes; court may “look at all the      (D. P.R. 2002).
conduct underlying the offense of the conviction”)).
                                                                       In accord with this well-supported approach, we do not find
  In Ramirez-Burgos v. United States, 313 F.3d 23, 30 n.9           that the district court erred in applying the enhancement for
(1st. Cir 2002), the First Circuit reaffirmed, “without             Cline’s threat of death. At the time of the threat, Cline had
hesitation, that the commission of a carjacking continues at        control over the victim of the carjacking, and had left for dead
least while the carjacker maintains control over the victim and     the owner of the vehicle. Although Marcum did not testify as
her car.” The court concluded that rape of the victim               to whether Cline retained the keys to the car, the district court
“resulted” from the carjacking, because “the rape, like the         was justified in finding that he had not permanently separated
earlier brandishing of the gun, provided the intimidation by        her from the vehicle. As with prior efforts to address this
which the carjackers extended their control of the victim and       issue, we need not draw a precise line demarcating the
the automobile.” Id. at 30.                                         termination of any and all carjackings. It will suffice to hold
                                                                    that the carjacking persisted at least until further dissipation
  The First Circuit’s decision to consider for purposes of          of the indicia of Cline’s control over the vehicle. We will not
sentencing all acts occurring during a defendant’s control of
the seized vehicle represents an effort to effectuate legislative
                                                                         4
                                                                         The opinion in Vazq uez-Rivera cites the Anti Car Theft Act, Pub. L.
                                                                    No. 102-519, reprinted in 1992 U.S.C.A.A.N. 2847, at 1865. 135 F.3d at
                                                                    178.
No. 02-5966                       United States v. Cline     17

reach a different result merely because the arrival of police
denied Cline the opportunity to flee in the stolen car (as in
Vazquez-Rivera) or to return it to the victim (as in Gonzalez-
Mercado).
                       III. Conclusion
   For the foregoing reasons, the decision of the district court
is AFFIRMED in all respects.
