                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-4629



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


LAJUAN JOESA DAVIS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:05-cr-00285-HEH-1)


Submitted:   April 11, 2007                   Decided:   May 29, 2007


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Acting Federal Public Defender, Robert J.
Wagner, Assistant Federal Public Defender, Frances H. Pratt,
Richmond, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, S. David Schiller, Assistant United States Attorney,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Following a bench trial, Lajuan Davis was convicted of

one count of conspiracy, in violation of 18 U.S.C. § 371 (2000);

one count of conspiracy to commit flight to avoid prosecution, in

violation of 18 U.S.C. § 371 and 18 U.S.C. § 1073 (2000); one count

of carjacking, in violation of 18 U.S.C. §§ 2119 and 2 (2000); one

count of use of a firearm in connection with a crime of violence,

in violation of 18 U.S.C. § 924(c) (2000); one count of interstate

transportation of a stolen automobile, in violation of 18 U.S.C.

§§ 2312, 2313 (2000); two counts of bank fraud, in violation of 18

U.S.C. § 1344 (2000); and two counts of wire fraud, in violation of

18 U.S.C. § 1343 (2000).           The district court sentenced Davis to

life imprisonment.       Davis appeals his convictions and sentence.

For the reasons that follow, we affirm.

            Davis first claims the district court erred when it

denied    his   motion   to   suppress.      This   court   reviews   legal

conclusions     involved      in     a   district   court’s    suppression

determination de novo, but reviews factual findings underlying the

legal conclusions under a clearly erroneous standard.          See United

States v. Rusher, 966 F.2d 868, 873-74 (4th Cir. 1992).

           The ultimate due process test for confessions is one of

voluntariness.      Schneckloth v. Bustamonte, 412 U.S. 218, 225

(1973).   A confession violates due process and must be suppressed

only if it was obtained by tactics which overbore a suspect’s will


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and critically impaired his capacity for self-determination.                         Id.

at 225-26.          Whether a confession is voluntary must be determined

from       an    examination   of    “the    totality     of   all   the   surrounding

circumstances--both the characteristics of the accused and the

details of the interrogation.”               Id. at 226.

                 A review of the record reveals that Davis’ March 28, 2001

and April 17, 2002 statements were voluntary.                      Moreover, the fact

that the March 28 statement was made under the grant of state use

immunity does not render it involuntary. See Taylor v. Singletary,

148 F.3d 1276, 1280 (11th Cir. 1998) (“A voluntarily-entered

informal immunity agreement does not, by virtue of its existence,

override a witness’ free will such that the witness’ testimony is

involuntary under the Due Process Clause.”)                          Accordingly, the

district court properly denied Davis’ motion to suppress.

                 Davis next asserts that there was insufficient evidence

to convict him of carjacking because (1) there was no evidence that

the    victim’s       car   was    taken    from    his   person     or   presence   and

(2) there was no evidence of intent to cause death or serious

harm.*          A defendant challenging the sufficiency of the evidence

faces a heavy burden.             See United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997).                “[A]n appellate court’s reversal of a


       *
      The carjacking statute requires proof of five elements:
(1) taking a motor vehicle (2) that had been transported, shipped,
or received in interstate or foreign commerce (3) from the person
or presence of another (4) by force or intimidation (5) with the
intent to cause death or serious harm. 18 U.S.C. § 2119.

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conviction on grounds of insufficiency of evidence should be

‘confined to cases where the prosecution’s failure is clear.’”

United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984) (quoting

Burks v. United States, 437 U.S. 1, 17 (1978)).                  In reviewing a

sufficiency challenge, “[t]he verdict of a jury must be sustained

if there is substantial evidence, taking the view most favorable to

the Government, to support it.” Glasser v. United States, 315 U.S.

60,   80   (1942).     “[S]ubstantial       evidence     is    evidence    that   a

reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)

(en banc).

            In evaluating the sufficiency of the evidence, this court

does not “weigh the evidence or review the credibility of the

witnesses.”    United States v. Wilson, 118 F.3d 228, 234 (4th Cir.

1997).       When     the   evidence    supports        differing     reasonable

interpretations, the jury decides which interpretation to believe.

Id.   Furthermore, “[t]he Supreme Court has admonished that we not

examine    evidence    in   a   piecemeal    fashion,    but    consider    it    in

cumulative context.”        Burgos, 94 F.3d at 863 (citations omitted).

“The focus of appellate review, therefore, . . . is on the complete

picture, viewed in context and in the light most favorable to the

Government, that all of the evidence portrayed.”                Id.




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          Davis first contends that there was not substantial

evidence to support the conclusion that the victim’s car was taken

from his person or presence.     The presence requirement of the

carjacking statute can be satisfied when the victim was inside a

building and the stolen vehicle was parked outside the building.

See, e.g., United States v. Lopez, 271 F.3d 472, 486 (3rd Cir.

2001) (holding that the presence requirement of the carjacking

statute was satisfied when the victims were attacked and beaten

inside their house and keys to a van parked outside the house were

taken); United States v. Moore, 198 F.3d 793, 797 (10th Cir. 1999)

(holding that the presence requirement of the carjacking statute

was satisfied when keys were taken from a bank employee whose car

was parked in a parking lot outside the bank); United States v.

Kimble, 178 F.3d 1163, 1168 (11th Cir. 1999) (holding that the

presence requirement of the carjacking statute was satisfied when

keys were taken from a restaurant employee whose car was parked

outside the restaurant).   These cases also make clear that the

presence requirement has limits.       In the carjacking context,

“courts have required the victim to have both a degree of physical

proximity to the vehicle and an ability to control or immediately

obtain access to the vehicle.”    United States v. Servarese, 385

F.3d 15, 20 (1st Cir. 2004).

          In the present case, although the victim was not inside

or immediately next to his car, the vehicle remained proximate to


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him in the driveway just outside his home, and the victim retained

an ability to control the area in which the vehicle was located.

The victim was induced to relinquish his keys only as a result of

Davis’, and his co-defendant’s, acts of violence.           The vehicle was

sufficiently proximate to the victim and within his control. Thus,

were it not for Davis’ and his co-defendant’s actions and their use

of fear and intimidation, the victim could have maintained control

of his vehicle.      Accordingly, there was substantial evidence to

support a finding that the victim’s vehicle was taken from his

person or presence.

             Davis also argues that there was not substantial evidence

to support a finding that he took the victim’s car with the intent

to cause death or serious bodily harm as required by 18 U.S.C.

§ 2119.      The intent requirement of § 2119 is satisfied when the

government proves that, at the moment the defendant demanded or

took control of the vehicle, 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 government

need not prove that the defendant actually intended to cause the

harm;   it   is   sufficient   that    the    defendant   was    conditionally

prepared to act if the person failed to relinquish the vehicle.

United States v. Wilson, 198 F.3d 467, 470 (4th Cir. 1999).

             With regard to the intent element, the district court

determined that Davis was a principal in the carjacking, and found


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that “[w]hile Mr. Davis with his own hands did not kill [the

victim], he knew that violence was an integral part of what they

were going to do.     There was no other reason to take the shotgun,

there was no other reason to forcibly take custody of [the victim]

or to forcibly take his keys from him.       So I think they have shown

a specific intent to cause bodily injury or murder.”

          This    finding   is   supported   by   substantial   evidence.

Although Davis may not have been the primary aggressor in the

carjacking, this does not lessen his culpability. His own actions,

and the concerted efforts of his co-defendant, support the court’s

finding that Davis shared an intent to cause death or serious

bodily harm. In sum, the evidence at trial established that Davis

and his co-defendant carried a weapon as they set off in search of

someone to carjack.    When they came upon the victim’s house, Davis

checked the front of the house and saw the victim was in his living

room.   Davis then entered the victim’s house through the rear

kitchen door, followed by his co-defendant, who was carrying the

shotgun, and assisted in overpowering the victim and stealing his

keys and personal effects. Davis’ co-defendant subsequently killed

the victim in an adjacent field.      Davis’ actions in assisting his

co-defendant sufficiently show that he shared the intent to harm or

kill the victim if necessary to steal his car.

          Davis also appeals his sentence on the ground that it is

unreasonable.    After United States v. Booker, 543 U.S. 220 (2005),


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a district court is no longer bound by the range prescribed by the

sentencing     guidelines.      However,    in    imposing      a     sentence

post-Booker, courts must still calculate the applicable guideline

range after making the appropriate findings of fact and consider

the range in conjunction with other relevant factors under the

guidelines and 18 U.S.C.A. § 3553(a)         (West 2000 & Supp. 2006).

United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.

denied, 126 S. Ct. 2054 (2006).           We will affirm a post-Booker

sentence if it is both reasonable and within the statutorily

prescribed range.     Id. at 433.    “[A] sentence within the proper

advisory Guidelines range is presumptively reasonable.”                United

States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).

             Here, the district court sentenced Davis post-Booker,

appropriately treated the guidelines as advisory, and considered

the § 3553(a) factors. Hence, we reject Davis’ contention that the

district court applied erroneous legal standards in determining his

sentence.     Rather, the district court properly calculated the

guideline    range   and   appropriately   treated   the    guidelines     as

advisory.     The district court expressly noted that it considered

“all   the   facts   and   circumstances    set   forth    in   [18    U.S.C.

§ 3553(a)],” and expressly acknowledged the difficulties in Davis’

background and the seriousness of his crime.          After considering

Davis’ arguments, the district court reasonably concluded that a

sentence in the guideline range was appropriate.           Based on these


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factors,   and   because   the   court    sentenced   Davis   within   the

applicable guideline range and below the statutory maximum, Davis’

sentence of life imprisonment is reasonable.

           Davis further argues that the district court erred in

failing to apply a variance sentence of no more than fifty years’

imprisonment because the district court misunderstood its authority

to impose a variance sentence.      However, the record, read in its

entirety, reveals that the district court understood its authority

to impose a variance sentence, but declined to do so.          See United

States v. Johnson, 445 F.3d 339, 342-43 (4th Cir. 2006) (sentences

within guidelines range are presumptively reasonable in part due to

incorporation of § 3553(a) factors into the guidelines). The

district court concluded that the evidence presented by Davis at

sentencing was not sufficient to diverge from the guidelines range,

as was appropriate given the presumption of reasonableness afforded

to a sentence within the guidelines range.        See United States v.

Hampton, 441 F.3d 284, 287 (4th Cir. 2006) (variance must be

supported by the facts of the particular case); Moreland, 437 F.3d

at 434 (divergence from guidelines range must be based on plausible

reasons for doing so).

           Accordingly, we affirm the judgment of the district

court.   We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                 AFFIRMED



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