                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0151n.06

                                          No. 16-5358

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
                                                                                   FILED
                                                                             Mar 08, 2017
                                                        )
                                                                         DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )      ON APPEAL FROM THE
                                                        )      UNITED STATES DISTRICT
JOSHUA HAYWORTH,                                        )      COURT FOR THE EASTERN
                                                        )      DISTRICT OF TENNESSEE
       Defendant-Appellant.                             )
                                                        )
                                                        )



BEFORE:       BOGGS, SILER, and MOORE, Circuit Judges.

       BOGGS, Circuit Judge. After robbing a Burger King, Joshua Hayworth went on the run

from the police.    He wrecked his initial vehicle and abandoned a second car once law

enforcement agents recognized him while he drove some days later. When a manhunt began and

police closed in, Hayworth frantically sought another method of escape. He rushed at two

women standing in a driveway (one nine months pregnant), shouting at them to give him keys,

and jumped on top of the fallen pregnant victim to struggle with her and seize her keys. After he

was caught, he was charged with and found guilty of Hobbs Act robbery and carjacking. He

now appeals his carjacking conviction and sentence. We affirm both.

                                                I

       Just after 11 p.m. on January 30, 2014, Joshua Hayworth approached a Burger King in

Lenoir City, Tennessee, with his face covered and carrying an airsoft pistol. In accordance with
No. 16-5358, United States v. Hayworth


a prearranged plan, Timothy Chudley—an acquaintance of Hayworth’s—opened the back door,

ostensibly to take out the trash and salt patches of ice by the back entrance, but in truth to let

Hayworth into the restaurant. Hayworth rushed into the Burger King, brandishing the pistol and

shouting at the staff to get on the ground, open the safe, and give him the money. Once he had

stolen approximately $3,300 from the restaurant, he engaged in a brief struggle with Chudley—

part of the plan to make Chudley appear to be an innocent employee. Hayworth fled with the

money in his sister’s Nissan Maxima, but wrecked it moments after he passed an officer

responding to the robbery. After being ejected from the car, he ran from the crash and eluded

pursuing officers and dogs. Officers recovered, among other items, a large amount of cash, the

airsoft pistol, Hayworth’s phone, and his parole identification card from the wrecked car.

       Hayworth managed to get his hands on a Jeep Wrangler and met with a friend, Nikisha

Popejoy, to discuss his predicament. A few days later, on February 3, the two drove together to a

pawn shop to sell one of the Jeep’s speakers. While he was driving back to Popejoy’s home, an

FBI agent in an unmarked car saw the Jeep and pulled up beside it at a red light, where he

recognized Hayworth. After another agent also began following the Jeep, Hayworth realized he

was being shadowed and sped off, weaving across lanes at a high rate of speed and at times

travelling on the wrong side of the road to lose the agents. Once he had shaken his tails,

Hayworth dropped Popejoy off near her home. He then abandoned the Jeep a short distance

away. By this point, a full manhunt had begun, and the Knox County Sheriff’s Department sent

out a police helicopter to aid the search while police officers swarmed the scene.

       Some time later, neighbors Melissa McGuire and Sarah Gulley were discussing the recent

commotion in the neighborhood as well as Gulley’s excitement for the imminent arrival of her

first child, as she was nine months pregnant and due to be induced in four days. Suddenly,



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Hayworth emerged from between two houses, running at the women with his hand in his pocket

as if he were armed and shouting at them to give him their keys. Alarmed, McGuire told Gulley

to flee, but as Gulley attempted to do so, she tripped and fell on her stomach onto the pavement.

Hayworth demanded keys from McGuire but she was unable to produce them, and so he turned

his attention to the fallen Gulley, who had her keys in her hand. Screaming for the keys,

Hayworth wrestled with Gulley to take them from her, jabbing her in an attempt to gain control.

McGuire pleaded with Hayworth to leave Gulley alone as she was pregnant. After a struggle,

Hayworth managed to wrest away the keys from Gulley and found her car by using the alarm

button. As he began to leave in Gulley’s car, Gulley pleaded for Hayworth to release her dog,

which was inside the car. Hayworth opened the door and let the dog out of the vehicle before

driving away.1

          As he fled the scene of this new crime, he passed the FBI agent who had spotted him

earlier in the day. Just as he had following his Burger King robbery, Hayworth then immediately

lost control of the vehicle and wrecked it. By the time officers reached the crash scene,

Hayworth was gone. But following the hue and cry of bystanders, police tracked Hayworth to an

abandoned house and found him hiding under a couch.

          Hayworth was charged with Hobbs Act robbery, aiding and abetting the same, and

carjacking under 18 U.S.C. §§ 2, 1951, and 2119. He pleaded not guilty and went to trial, where

he was convicted on both counts by a jury. At sentencing, he received a 200-month term of

imprisonment.        Hayworth appeals on three bases: first, that the evidence presented was

insufficient to convict him of carjacking; second, that the district court’s denial of a motion for a

judgment of acquittal was erroneous because the “passions, prejudices, or sympathies” of the



 1
     Fortunately, Gulley’s son was born healthy and unharmed.

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No. 16-5358, United States v. Hayworth


jury were overwhelming, given the emotional testimony of the victims; and third, that the district

court erred in the length of the sentence it imposed.

                                                 II

                                  A. Sufficiency of the Evidence

       We review de novo whether the evidence is sufficient to support a conviction in a

criminal case. United States v. Garcia, 758 F.3d 714, 718 (6th Cir. 2014). A defendant who

challenges the sufficiency of the evidence “bears a very heavy burden,” as we consider all

evidence in the light most favorable to the prosecution and decide whether a rational trier of fact

could have found that the essential elements of the crime were proven beyond a reasonable

doubt. United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999). We should reverse a

conviction if we determine “that the government’s case against the defendant was so lacking that

the trial court should have entered a judgment of acquittal, rather than submitting the case to the

jury.” Lockhart v. Nelson, 488 U.S. 33, 39 (1988).

       The federal statute criminalizing carjacking includes several elements. It states that

“[w]hoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has

been transported, shipped, or received in interstate or foreign commerce from the person or

presence of another by force and violence or by intimidation, or attempts to do so, shall” face a

set of penalties, depending on whether death or serious bodily harm actually result. 18 U.S.C.

§ 2119. Hayworth challenges only one of these elements: whether he had “intent to cause death

or serious bodily harm.” Because § 2119 is a specific-intent crime, “the United States must show

more than that the defendant committed the criminal acts; it must also show evidence of the

specific mental culpability at issue,” here that Hayworth actually intended to cause death or

serious bodily injury. United States v. Adams, 265 F.3d 420, 424 (6th Cir. 2001).



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No. 16-5358, United States v. Hayworth


       The Supreme Court has held that the intent required for this crime also encompasses

conditional intent. See Holloway v. United States, 526 U.S. 1, 8 (1999). That is to say, a

carjacker’s intent need not be to kill or seriously injure; rather, it can also be simply the intent to

kill or seriously injure if the victim resists. Id. at 11–12 (“[T]he Government [must] prove

beyond a reasonable doubt that the defendant would have at least attempted to seriously harm or

kill the driver if that action had been necessary to complete the taking of the car.” Id. at 12.). In

order to find conditional intent, we must examine the “totality of the circumstances to evaluate

whether the defendant’s words and actions sufficiently demonstrated” such an intent. United

States v. Fekete, 535 F.3d 471, 481 (6th Cir. 2008).

       Hayworth argues that he had no weapon and even let the dog out of the car once he stole

it, demonstrating that he merely wanted the keys and not to cause any harm. But a weapon is not

a prerequisite to a carjacking conviction; rather “[t]he requisite mens rea can be shown by

evidence of an intent to use . . . brute force, or any other means that indicates an ability and

willingness to cause serious bodily harm or death if not obeyed.” Id. at 480. In United States v.

Edmond, 815 F.3d 1032 (6th Cir. 2016), we observed that there was sufficient evidence of intent

to cause death or serious bodily harm where there was a physical fight with a valet over keys. Id.

at 1040. Hayworth argues that this observation is mere dicta, as we concluded that the defendant

in that case would have been convicted on an alternate ground (i.e., reaching for a firearm was

sufficient to demonstrate specific intent). But in that case, we stated that the conviction would

stand even if he had not reached for a gun, a point that was in contention given that the jury had

acquitted the defendant of firearm possession during commission of the crime. Ibid. Because

the Edmond panel determined that the physical struggle without the gun was also sufficient to

demonstrate the requisite intent, it did not resolve the factual dispute. Thus, that determination



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was material to the decision, rather than obiter dicta. Regardless, our case appears to have even

greater evidence of such conditional intent than did Edmond. Testimony at trial showed that

Hayworth struck and struggled with a nine-months pregnant woman, who had already fallen to

the ground, until she relinquished her keys. Considering the totality of the circumstances,

including testimony that demonstrated that Hayworth was aware that Gulley was pregnant when

he jabbed and fought her, the evidence was sufficient to find that Hayworth intended to cause at

least serious bodily harm if Gulley did not relinquish the keys.

                                     B. Impartial-Jury Allegation

        Hayworth’s next argument is that the case should not have gone to the jury because the

prosecution had Gulley testify last “to ensure maximum emotional impact upon the jury—a

skillful move . . . done to ensure that the passions, prejudices, and sympathies of the jury were

inflamed.”    Appellant’s Br. 21.      As a result of the government’s “prey[ing] upon the[se]

passions,” Hayworth alleges that the trial court should have known that “the jury would likely

base its verdict on [them] . . . , [and] not the actual facts of the case.” Id. at 24.

        A defendant must be “fairly tried in a public tribunal free of prejudice, passion,

excitement, and tyrannical power.” Chambers v. Florida, 309 U.S. 227, 236–37 (1940). But

Hayworth’s objection was not at voir dire to the partiality of individual jurors. Rather, the

objection was that the jury as a whole would rule on emotion. In this case, before permitting the

jurors to deliberate, the district court provided instructions “not [to] let any bias, sympathy or

prejudice you may feel toward one side or the other influence your decision in any way.”

Though the testimony was certainly gripping and emotional, there was no demonstration that it

was presented in a way that overcame the jury’s presumed impartiality. See Skilling v. United

States, 561 U.S. 358, 399 n.34 (2010) (“[I]t is a premise of [our justice] system that jurors will



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No. 16-5358, United States v. Hayworth


set aside their preconceptions when they enter the courtroom and decide cases based on the

evidence presented.”). Absent demonstrable statements by the prosecutor attempting to call on a

jury’s emotions or fears, see, e.g., Johnson v. Bell, 525 F.3d 466, 484 (6th Cir. 2008), or

encouraging jury identification with crime victims, see, e.g., Hodge v. Hurley, 426 F.3d 368, 384

(6th Cir. 2005), Hayworth cannot show that the testimony clearly prejudiced his case or rendered

it fundamentally unfair. See United States v. Poandl, 612 F. App’x 356, 365 (6th Cir. 2015).

And this result makes sense: where a defendant commits a heinous act, he cannot but expect that

the horrible details will be presented where they are central to the prosecution and elements of

the crime. As long as proper precautions are taken to ensure that the jury is aware of its

obligation to remain impartial and no improper attempts are made to tempt it away from that

responsibility, the jury is presumed to have done its duty.

                                     C. Hayworth’s Sentence

       Finally, Hayworth challenges only the substantive reasonableness of his sentence. Here,

both parties agree that the district court correctly calculated the Sentencing Guidelines range at

110 to 137 months, given Hayworth’s offense level of 28 and criminal history category of IV.

The dispute lies in the district court’s grant of the prosecution’s motion for an upward variance in

sentencing Hayworth to 200 months in prison. “The essence of a substantive-reasonableness

claim is whether the length of the sentence is ‘greater than necessary’ to achieve the sentencing

goals set forth in 18 U.S.C. § 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632–

33 (6th Cir. 2010). “A sentence is substantively unreasonable if the district court selects the

sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent

§ 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.” Id. at 633




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No. 16-5358, United States v. Hayworth


(quoting United States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008)). Our standard of review in

such cases is for abuse of discretion. Gall v. United States, 552 U.S. 38, 46 (2007).

         The district court carefully went through the 18 U.S.C. § 3553(a) factors as applied to

Hayworth’s case. After discussing the various factors, the court granted the government’s

motion for an upward variance, emphasizing the nature and scope of Hayworth’s criminal history

and the violent nature of his conduct in the case at hand. In particular, the district court

emphasized the “strong need to protect the public from further crimes of the defendant” and

found that a variance was appropriate “to promote respect for the law, provide just punishment

and to afford adequate deterrence.”

         It is true that the sentence in this case was a nearly fifty-percent increase from the high

end of the Sentencing Guidelines range. Nevertheless, “[a]lthough we may consider the extent

of the deviation in reviewing a district court’s sentence, we ‘must give due deference to the

district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.’” United States v. Lanning, 633 F.3d 469, 476 (6th Cir. 2011) (quoting Gall, 552 U.S.

at 51). The demonstration of violence in this case by Hayworth was striking: his robbery of the

Burger King caused one employee to require mental-health treatment and his carjacking involved

a fight with a nine-months pregnant woman. Furthermore, Hayworth had a history of significant

criminal conduct and was on parole for a prior aggravated robbery at the time of the Burger King

robbery. The district court made special note of the “nature, scope and in certain aspects the

violent nature of [Hayworth’s] previous criminal history”2 and that “the defendant has been

involved in the criminal justice system beginning as a juvenile continuing through his entire


  2
    In discussing the variance, the court referred to Hayworth’s violent nature on four separate occasions. (“[T]he
Court is cognizant of . . . in certain aspects the violent nature of [Hayworth’s] previous criminal history”;
“[Hayworth’s criminal history] demonstrat[es] the violent nature of this defendant”; “[a]gain, the Court notes the
violent nature of his conduct in this case”; “the nature of the instant offense was extremely violent.”)

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No. 16-5358, United States v. Hayworth


life.”   Accordingly, “[g]iven [Hayworth]’s prior convictions and his parole status, it was

reasonable for the district court to place substantial weight on [Hayworth]’s criminal history in

reaching its sentencing determination.” United States v. Webb, 403 F.3d 373, 384 (6th Cir.

2005). The district court did not abuse its discretion in varying upward because it “selected a

punishment that it believed fit [Hayworth]’s crimes, and provided sufficient reasons to justify it.”

United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008). The district court provided thorough

justification, citing in detail the violent history and unrepentant nature of Hayworth as well as his

“callous disregard for persons in particular as well as property.” Accordingly, his sentence was

substantively reasonable and within the district court’s discretion.

                                                 III

         For the foregoing reasons, we AFFIRM Hayworth’s conviction and sentence.




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