UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 98-4568

KEVIN MICHAEL KEY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 98-4582

ROBERT ANTHONY KEY,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., Chief District Judge.
(CR-98-48)

Submitted: March 23, 1999

Decided: April 6, 1999

Before ERVIN and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Matthew K. Rogers, Clinical Student,
Greensboro, North Carolina; David B. Freedman, Laurie A. Schloss-
berg, WHITE and CRUMPLER, Winston-Salem, North Carolina, for
Appellants. Walter C. Holton, Jr., United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Jason E. Moss, Third-Year
Law Student, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Kevin Michael Key and Robert Anthony Key appeal
their convictions and sentences for the kidnapping of Harvey Peoples
for the purpose of gaining transportation from Winston-Salem, North
Carolina, to New York City, in violation of 18 U.S.C. § 1201(a)(1)
(1994). Michael Key was also convicted for carrying and using a fire-
arm during and in relation to the kidnapping, in violation of 18
U.S.C.A. § 924(c) (West 1994 & Supp. 1998). Both Kevin and Robert
Key allege that the Government violated 18 U.S.C.§ 201(c)(2) (1994)
by promising an alleged accomplice assistance in exchange for his
testimony against them, that their convictions for kidnapping were not
supported by the evidence, and that the district court erred by denying
Appellants a one-level sentencing reduction for release of the victim.
Kevin Key also alleges that insufficient evidence existed to support
his conviction on the firearm charge. Finding no error, we affirm.

The Appellants and Gregory Love traveled together from New
York City to Winston-Salem, North Carolina. Once in Winston-
Salem, a female friend of Robert Key contacted Harvey Peoples to
give Appellants and Love a ride to the bus terminal. Peoples occa-

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sionally would act as a driver for hire. On July 21, 1997, Peoples
picked up the Appellants and Love in his car.

The Appellants had Peoples drive them first to an apartment where
Kevin Key exited the car and approached the apartment. He returned
when no one answered the door. Peoples then observed that Kevin
Key had a nine millimeter gun and Robert Key had a shotgun. Love
testified that Robert Key chambered the shotgun. Peoples testified
that Robert put a shotgun to his back and kept it there. Peoples testi-
fied that the Appellants started threatening him so that he would drive
the whole way to New York City. Peoples protested and said that he
had to pick his children up from school. Kevin Key asked Peoples if
he prayed to God that he would not get shot in the head. Love testi-
fied that Peoples was shaking and very nervous. Peoples drove the
group to New York City. The Appellants allowed him one bathroom
stop at a gas station, and Love accompanied Peoples into the restroom
with a handgun. Peoples was also allowed to purchase wine "to get
(his) nerves together." Love testified that Appellants allowed Peoples
to stop one more time to relieve himself on the side of the road. While
Peoples was outside the car, Appellants discussed whether they
should kill Peoples and take his car.

At a gas stop in New Jersey, Appellants observed a police car near
the gas pumps. Kevin Key warned Peoples to remain quiet and threat-
ened violence. As Peoples drove toward New York, he deliberately
took the wrong roads so that he came back through the same toll
booth three times in hopes that the attendant would recognize his situ-
ation. After the third pass through the toll booth, both Appellants
threatened Peoples.

Once the group arrived in New York City, Robert Key took over
the driving. While in New York, they made several stops. Peoples
asked Robert Key if they could stop at a liquor store to purchase a
bottle of gin. Key obliged and Peoples shared the gin with others in
the car. Peoples testified that he hoped Appellants would lose control
of the situation by drinking the gin. The Appellants gave Peoples
approximately eighty dollars and planned to drop him off at the bus
station and keep Peoples' car. While stopped at a red light, Peoples
saw police officers nearby and jumped out of the car, and approached

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the police car to explain his situation. The Appellants drove away
when Peoples escaped.

Appellants first allege that the testimony of Government witness
Gregory Love should have been suppressed because it was made in
exchange for something of value in violation of 18 U.S.C.
§ 201(c)(2). Appellants did not object to this alleged error at trial;
therefore, it is evaluated under the plain error standard. See Fed. R.
Crim. P. 52(b). The plain error standard requires proof that there is
an error that is clear and obvious under existing law. See United
States v. Castner, 50 F.3d 1267, 1277-78 (4th Cir. 1995). Appellants
only rely upon a panel decision of the Tenth Circuit, which was
recently rejected and vacated en banc in United States v. Singleton,
144 F.3d 1343 (10th Cir. 1999), and a district court decision to sup-
port his claim of error. There is no valid precedent in this or any cir-
cuit court to uphold this argument, and a number of circuits have
rejected it. See, e.g., United States v. Haese, 162 F.3d 359 (5th Cir.
1998); United States v. Ware, 161 F.3d 414 (6th Cir. 1998). If there
was an error, it is not plain and obvious under existing law because
no Supreme Court or circuit court opinion stands to support that posi-
tion. Therefore, Appellants are not entitled to relief on this claim.

Next, Appellants argue that their convictions are not supported by
sufficient evidence and therefore the district court erred in denying
their motions for judgment of acquittal. We sustain a conviction if any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt based upon the evidence in the light
most favorable to the government. See Glasser v. United States, 315
U.S. 60, 80 (1942). The uncorroborated testimony of a single witness
may be sufficient, even if that witness is an accomplice. See United
States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). Credibility
determinations are strictly a matter for the trier of fact, and will not
be reviewed on appeal. See United States v. Johnson, 55 F.3d 976,
979 (4th Cir. 1995).

To sustain a conviction under the federal interstate kidnapping stat-
ute, the government must satisfy four essential elements: "(1) the
transportation in interstate commerce; (2) of an unconsenting person
who is; (3) held for ransom, reward or otherwise, and (4) the acts
were committed knowingly and willingly." United States v. Osborne,

                    4
68 F.3d 94, 100 (5th Cir. 1995). To sustain a conviction under 18
U.S.C.A. § 924(c), the government must prove that the defendant
used or carried a firearm during and in relation to a crime of violence.
See Smith v. United States, 508 U.S. 223, 228 (1993).

The testimony of Peoples and Love adequately prove the kidnap-
ping convictions for both Appellants and the firearm conviction for
Kevin Key. Both witnesses testified that the Appellants used firearms
to force Peoples to drive them from North Carolina to New York
City. Love testified that Peoples was very nervous and shaking. Both
Peoples and Love testified to various threats issued by the Appellants
and that Peoples did not willingly consent to drive to New York City.
We therefore find that the evidence was sufficient to support the con-
victions of both Appellants and that the district court did not err in
denying their motions for judgment of acquittal.

Both Appellants argue that the district court erred by ruling that
Peoples had not been released by them within twenty-four hours and
therefore they were not entitled to a one-level reduction for release of
the victim. United States Sentencing Guidelines Manual
§ 2A4.1(b)(4)(C) (1998) provides for a one-point decrease in the
offense level "[i]f the victim was released before twenty-four hours
had elapsed." Application Note 3 provides that"[f]or the purpose of
subsection (b)(4)(C), `released' includes allowing the victim to escape
or turning him over to law enforcement authorities without resis-
tance." Both Appellants argue that the district court should have
reduced their offense levels by one point pursuant to § 2A4.1(b)(4)(C)
because they "allowed" Peoples to escape, he was not restrained at the
time, they did not grab for him as he bolted from the car, and they
were on the way to the bus station.

In United States v. White, 903 F.2d 457, 465 (7th Cir. 1990), the
Seventh Circuit concluded that a defendant must actually acquiesce
in the escape if he is to earn a one-point decrease under USSG
§ 2A4.1(b)(4)(C). We agree--and we do not believe that the district
court was required to find acquiescence here. The Appellants' argu-
ment requires the court to speculate on the Appellants' intent to
release Peoples at the bus station. Peoples testified that at the point
that he escaped he was still worried that he would not be released and
set free at the bus station, even though he had eighty dollars for bus

                    5
fare. Peoples' escape was sudden and unexpected. The record does
not reveal that Peoples was free to leave the automobile or the pres-
ence of the Appellants at any time. We therefore find that the district
court did not err in finding that the Appellants did not release Peoples
as defined by USSG § 2A4.1(b)(4)(C).

We therefore affirm the judgments. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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