PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4817

COREY ALLEN WILSON, a/k/a Jugs,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-96-154)

Argued: October 26, 1999

Decided: December 2, 1999

Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Luttig and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: William Stimson Trivette, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Michael Fran-
cis Joseph, Assistant United States Attorney, Greensboro, North Car-
olina, for Appellee. ON BRIEF: Louis C. Allen, III, Federal Public
Defender, Greensboro, North Carolina, for Appellant. Walter C. Hol-
ton, Jr., United States Attorney, Greensboro, North Carolina, for
Appellee.
OPINION

HAMILTON, Senior Circuit Judge:

Following a two-day jury trial, Corey Allen Wilson (Wilson) was
convicted of carjacking, and aiding and abetting the same, see 18
U.S.C. §§ 2, 2119, carrying and using a firearm during and in relation
to a crime of violence, and aiding and abetting the same, see id. §§ 2,
924(c), and transporting a stolen vehicle in interstate commerce, and
aiding and abetting the same, see id. §§ 2, 2312. On appeal, Wilson
contends that: (1) the district court erred in instructing the jury that
the intent element of carjacking could be satisfied upon a finding of
conditional intent; (2) there is insufficient evidence in the record to
support his carjacking conviction; and (3) the district court erred in
sentencing him when it applied a two-level enhancement to his
offense level for physical restraint of a person to facilitate commis-
sion of a carjacking, see U.S. Sentencing Guidelines Manual (USSG)
§ 2B3.1(b)(4)(B). Because each of Wilson's contentions lacks merit,
we affirm.

I

In January 1996, Wilson was introduced to Brian Lovell Gilbert
(Gilbert) in Winston-Salem, North Carolina. As they became
acquainted, Wilson and Gilbert began to discuss various ways to earn
quick cash and different modes of transportation to Williamsport,
Pennsylvania, which was Wilson's home town. In early February
1996, Wilson and Gilbert agreed to steal a car for the purpose of trav-
eling to Williamsport.

On the night of February 3, 1996, Wilson and Gilbert were at a gas
station in Winston-Salem where they observed a woman drive up in
her car. The woman exited her car, entered the gas station's conve-
nience store to purchase cigarettes, exited the convenience store,
entered her car, and drove off. Five minutes later, Wilson and Gilbert
saw the woman return to the gas station in her car. At this point, Wil-
son said to Gilbert, "she must be wanting to get--she must be wanting
her car taken." (J.A. 74). Wilson then gave Gilbert a .25 caliber hand-
gun and told Gilbert to "go ahead" and get the car. Id.

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Gilbert approached the woman while she was in her car, pointed
the gun at her, and directed her to get out of her car. The woman
replied that she could not comply with Gilbert's command because
her baby was in the car. In response, Gilbert instructed the woman to
grab her baby and get out of the car. After the woman complied with
this request, Wilson and Gilbert entered the car and drove to the
Salem Gardens housing project. Shortly thereafter, the police recov-
ered the car.

On the evening of February 6, 1996, Julie Lutz was driving her car
in Winston-Salem when she saw Wilson and Gilbert waving for her
to stop. After Lutz stopped her car, Wilson told Gilbert, "we're gonna
get this car right here." (J.A. 77). As Wilson and Gilbert approached
Lutz's car, Wilson told Lutz that it was cold, that they were a long
way from home, and that they needed a ride. Lutz agreed to give Wil-
son and Gilbert a ride.

Wilson got in the front passenger seat of Lutz's car, and Gilbert sat
behind Lutz. At some point during the ride, Wilson handed the .25
caliber handgun to Gilbert. After five to ten minutes of travel, Gilbert
placed the gun to the side of Lutz's head and told her to pull over,
which Lutz did. Wilson told Lutz to get out of the car and hand over
all the money she had. Lutz then gave Wilson and Gilbert all the
money in her purse and exited the car. After taking Lutz's car, Wilson
and Gilbert drove to Williamsport, where they were arrested on Feb-
ruary 13, 1996.

On July 30, 1996, Wilson and Gilbert were indicted by a federal
grand jury sitting in the Middle District of North Carolina on three
counts. All three counts of the indictment stemmed from Wilson and
Gilbert's carjacking of Lutz's car. Count one charged Wilson and Gil-
bert with carjacking, and aiding and abetting the same, see 18 U.S.C.
§§ 2, 2119. Count two charged Wilson and Gilbert with carrying and
using a firearm during and in relation to a crime of violence, and aid-
ing and abetting the same, see id. §§ 2, 924(c). Count three charged
Wilson and Gilbert with interstate transportation of a stolen vehicle,
and aiding and abetting the same, see id. §§ 2, 2312.

Prior to trial, Gilbert pled guilty and agreed to testify for the gov-
ernment. Following a two-day jury trial, the jury convicted Wilson on

                    3
all three counts. The district court sentenced Wilson to 197 months'
imprisonment. Wilson noted a timely appeal.

II

Wilson's first argument is that the district court erred in its instruc-
tion to the jury concerning one of the elements of the offense of car-
jacking. We review the district court's jury instructions in their
entirety and as part of the whole trial, see United States v. Lowe, 65
F.3d 1137, 1146 (4th Cir. 1995), and focus on whether the district
court adequately instructed the jury regarding the elements of the
offense and the defendant's defenses. See United States v. Fowler,
932 F.2d 306, 317 (4th Cir. 1991). The district court's decision on
jury instructions is reviewed for an abuse of discretion. See United
States v. Lozano, 839 F.2d 1020, 1024 (4th Cir. 1988).

A person commits the offense of carjacking if he or she "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 vio-
lence or by intimidation, or attempts to do so." 18 U.S.C. § 2119. Wil-
son argues that the district court erred when it instructed the jury that
the intent to cause death or serious bodily harm element of carjacking
could be satisfied if the jury found that he "intended to cause death
or serious bodily harm if the person from whom the vehicle was taken
did not relinquish it." (J.A. 157). According to Wilson, this type of
"conditional intent" is insufficient because it renders the intent
requirement virtually indistinguishable from the by force and violence
or by intimidation element of carjacking. Wilson posits that the dis-
trict court should have instructed the jury that he could be convicted
of carjacking only if he had an unconditional intent"to cause death
or serious bodily injury whether or not [Lutz] relinquished her car."
(J.A. 21).

While this appeal was pending, the Supreme Court decided
Holloway v. United States, 119 S. Ct. 966 (1999). In Holloway, the
jury was instructed that the intent element of carjacking was satisfied
if the defendant "intended to cause death or serious bodily injury if
the alleged victims had refused to turn over their cars." Id. at 968.
Before the Supreme Court, the defendant argued that the carjacking

                     4
statute required the government to prove that he had an unconditional
intent to cause death or serious bodily injury whether or not the vic-
tims relinquished their cars. The Court rejected this argument, holding
that evidence of conditional intent satisfies the intent element of car-
jacking, though the Court emphasized that "the intent element
requires the [g]overnment to 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 972.

In this case, the district court's instruction on conditional intent
complied with Holloway. Like Holloway , the district court instructed
the jury that the intent element of carjacking was satisfied if the gov-
ernment proved that the defendant intended to cause serious bodily
injury or death if the victim refused to relinquish her car. Because
there is no meaningful difference between the conditional intent
instruction upheld in Holloway and the conditional intent instruction
given by the district court in this case, Wilson's challenge to the dis-
trict court's instruction on intent must be rejected.

III

Wilson's second argument is that even under the conditional intent
standard there is insufficient evidence in the record to support the
jury's verdict because there is no evidence in the record demonstrat-
ing that he and Gilbert intended to cause serious bodily injury or
death to Lutz if she refused to relinquish her car. This argument is
without merit.

Our sufficiency of the evidence standard of review is well-settled.
The jury's verdict must be upheld on appeal if there is substantial evi-
dence in the record to support it. See Glasser v. United States, 315
U.S. 60, 80 (1942). In determining whether the evidence in the record
is substantial, we view the evidence in the light most favorable to the
government and inquire whether there is evidence that a "reasonable
finder of fact could accept as adequate and sufficient to support a con-
clusion of a defendant's guilt beyond a reasonable doubt." United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), cert.
denied, 519 U.S. 1151 (1997).

                    5
In this case, there is substantial evidence in the record demonstrat-
ing that Wilson and Gilbert intended to cause serious bodily injury or
death to Lutz if she refused to relinquish her car. Gilbert testified that
if Lutz had resisted he and Wilson "probably would have beat her,
dragged her, might have even shot her." (J.A. 100). Gilbert also testi-
fied that he and Wilson would have done whatever it took to over-
come Lutz's resistance, including the use of deadly force. This
evidence constitutes substantial evidence to support the jury's finding
that Wilson and Gilbert intended to cause serious bodily injury or
death to Lutz if she refused to relinquish her car. See Holloway, 119
S. Ct. at 972.

IV

Wilson's final argument is that the district court erred in sentencing
him when it applied a two-level enhancement to his offense level for
physical restraint of a person to facilitate commission of a carjacking
pursuant to USSG § 2B3.1(b)(4)(B). Wilson's principal objection to
the district court's application of the USSG § 2B3.1(b)(4)(B)
enhancement is that there is insufficient evidence in the record dem-
onstrating that he physically restrained Lutz. We disagree.

The sentencing guideline applicable to carjacking is the Robbery
Guideline, USSG § 2B3.1, under which the base offense level is
twenty, see USSG § 2B3.1(a). Because Wilson's offense involved
carjacking, his base offense level was increased by two levels pursu-
ant to USSG § 2B3.1(b)(1)(B) ("If . . . the offense involved carjack-
ing, increase by 2 levels."). Because Lutz was physically restrained
to facilitate the commission of the carjacking, the district court
increased Wilson's offense level two levels pursuant to USSG
§ 2B3.1(b)(4)(B) ("if any person was physically restrained to facilitate
commission of the offense or to facilitate escape, increase by 2
levels"). Because the loss exceeded $10,000 but was $50,000 or less,
Wilson's offense level was increased by one level pursuant to USSG
§ 2B3.1(b)(6)(B). Wilson's offense level of twenty-five, coupled with
a criminal history category of VI, yielded a guideline range of 110-
137 months. The district court sentenced Wilson to 137 months on the
carjacking count. Wilson also received a mandatory sixty-month con-
secutive sentence for his carrying and using a firearm during and in
relation to a crime of violence, and aiding and abetting the same.

                     6
In deciding to apply the USSG § 2B3.1(b)(4)(B) enhancement, the
district court stated:

          [T]he physical restraint is not duplicitous of any element in
          the definition of the offense, so it is not being double
          counted, because physical restraint is not necessarily proven
          to constitute a violation of the offense stated in 2119.

          In this case there was a restraint when the gun was pulled,
          the car was stopped, she was held long enough to have taken
          her money, and then forced out of the car. So for a period
          of time, albeit short, she was physically restrained, and then
          put out of the car as she--in an effort to facilitate the
          offense of taking the car. So the court finds that the
          enhancement of two levels is appropriate . . . .

(J.A. 316-17).

In reviewing the application of the sentencing guidelines by the
district court, we examine factual determinations for clear error. See
United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995). However,
legal questions are subject to the de novo standard of review. See id.

USSG § 2B3.1.(b)(4)(B) provides for a two-level enhancement "if
any person was physically restrained to facilitate commission of the
offense." USSG § 1B1.1(i), to which application note 1 of USSG
§ 2B3.1 refers, provides that "`physically restrained' means the forc-
ible restraint of the victim such as being tied, bound, or locked up."
We have held that "[p]hysical restraint" is not limited to the examples
listed in USSG § 1B1.1(i). See United States v. Stokley, 881 F.2d 114,
116 (4th Cir. 1989) ("By use of the words `such as,' it is apparent that
`being tied, bound, or locked up' are listed by way of example rather
than limitation.").

A physical restraint enhancement is proper under USSG
§ 2B3.1.(b)(4)(B), or under the analogous Restraint of Victim Guide-
line, USSG § 3A1.3 ("If a victim was physically restrained in the
course of the offense, increase by 2 levels."), if the act of physical
restraint "adds to the basic crime." United States v. Mikalajunas, 936

                    7
F.2d 153, 156 (4th Cir. 1989). For example, in Stokley, the defendant
placed a bomb in a room in which the defendant and the victim were
present, and the defendant prevented the victim from leaving the
room. See 881 F.2d at 115. The bomb exploded, injuring both the
defendant and the victim. See id. The defendant pled guilty to
destroying by explosives property affecting interstate commerce
resulting in personal injury, and, at sentencing, the district court
applied the two-level enhancement for physical restraint of a victim
pursuant to USSG § 3A1.3. See Stokley, 881 F.2d at 115. On appeal,
we upheld the application of the enhancement because the physical
restraint in that case "was not an element of the offense, was not spe-
cifically incorporated into the base offense level and was not listed as
a specific offense characteristic, any of which would have rendered
the guideline inapplicable." Id. at 116.

In contrast to Stokley, we declined to uphold the application of the
physical restraint enhancement under USSG § 3A1.3 in Mikalajunas.
See Mikalajunas, 936 F.2d at 156. In that case, the defendant pled
guilty to being an accessory after the fact to second degree murder.
See id. at 154. During the commission of the offense, the defendant's
brother held the victim while stabbing him. See id. at 155. We
declined to uphold the physical restraint enhancement contained in
USSG § 3A1.3 because "[e]very murder involves the ultimate
restraint[, and s]uch terminal restraint is simply an element of the
crime of homicide." Mikalajunas, 936 F.2d at 156.

In this case, the district court properly applied the USSG
§ 2B3.1(b)(4)(B) physical restraint enhancement. A gun was held to
Lutz's head, and she was prevented from leaving her car, albeit
briefly, until Wilson and Gilbert were able to get her money and gain
control of her car. Under these circumstances, unquestionably, Lutz
was physically restrained to facilitate the commission of the carjack-
ing. In reaching this result, we note that physical restraint is not an
element of carjacking, as carjacking does not necessarily involve
physical restraint, and one can envision various carjacking scenarios
involving no physical restraint at all. Indeed, the February 3, 1996
carjacking, for which Wilson and Gilbert were apparently not
charged, involved no physical restraint. We also note that physical
restraint is not specifically incorporated into the base offense level for
robbery; rather it is a specific offense characteristic of the Robbery

                     8
Guideline that must be applied unless its application is expressly pro-
hibited. See United States v. Williams, 954 F.2d 204, 206 (4th Cir.
1992) (noting that the sentencing guidelines should be applied "as

written").*

V

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED




_________________________________________________________________

*Secondarily, Wilson argues that because he received a mandatory
sixty-month consecutive sentence on the § 924(c) count, the application
of the physical restraint enhancement under USSG§ 2B3.1(b)(4)(B)
resulted in impermissible double counting. This argument is without
merit. We have emphasized repeatedly that the sentencing guidelines
should be applied "as written." Williams , 954 F.2d at 206. To effectuate
this principle, "double counting" is permissible under the sentencing
guidelines except where it is expressly prohibited. See United States v.
Crawford, 18 F.3d 1173, 1179 (4th Cir. 1994). In this case, the sentenc-
ing guidelines were applied as written and, therefore, there was no
impermissible double counting. Wilson's argument would carry consid-
erable force if he had received an enhancement for using a firearm during
the commission of the carjacking. See USSG§ 2B3.1(b)(2) (providing
that a defendant's offense level can be increased if a firearm was dis-
charged, used, or possessed). If Wilson had received an enhancement
under this section, we would have to vacate Wilson's sentence. See
USSG § 2K2.4 comment. (n.2) (expressly forbidding the application of
gun enhancements when the defendant has been convicted of a § 924(c)
offense). However, in this case, the district court did not apply the USSG
§ 2B3.1(b)(2) gun enhancement.

                     9
