United States of America v. Phillip Cline

*The Honorab le Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0088P (6th Cir.)
File Name: 04a0088p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PHILLIP CLINE,
Defendant-Appellant.
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No. 02-5966
Appeal from the United States District Court
for the Eastern District of Kentucky at Pikeville.
No. 01-00056—Danny C. Reeves, District Judge.
Submitted: October 24, 2003
Decided and Filed: March 26, 2004
Before: KENNEDY and GIBBONS, Circuit Judges;
ALDRICH, District Judge.*
_________________
COUNSEL
ON BRIEF: Stephen W. Owens, STEPHEN W. OWENS
LAW OFFICE, Pikeville, Kentucky, for Appellant.
2 United States v. Cline No. 02-5966
Charles P. Wisdom, Jr., Kenneth R. Taylor, Marianna Jackson
Clay, ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
ALDRICH, District Judge. This case concerns the
conviction and sentencing of a Kentucky man for carjacking,
possession of firearms while subject to a domestic violence
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
decision.
I. Background
Defendant Phillip Cline (hereinafter “Cline”) has a long
history of domestic violence. His wife, Jeana Marcum
(hereinafter “Marcum”), has sought protective orders against
him on at least four occasions, and the pair’s last attempt at
reconciliation led to the incidents at issue in this case.
In April of 2001, renewed contact between husband and
wife led Marcum to seek an amendment to the domestic
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
commit further acts of domestic violence, and not to dispose
of or destroy jointly held property. Pursuant to Marcum’s
claim that she and Cline had “worked everything out,” the
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.

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No. 02-5966 United States v. Cline 3
Relations between Cline and Marcum quickly deteriorated,
however, and on April 19, 2001, Marcum sought to reinstate
the “no contact” and “stay away” provisions, citing new
instances of abuse. This petition was denied when Marcum
failed to appear at a hearing on the issue.
It is clear that Cline possessed and used firearms while the
December 2000 order remained in effect. At trial, Marcum
testified that she purchased guns in the “summertime” of
2001, and that she and Cline used them for deer hunting.
Pawn broker Mark Jordan testified that Cline pawned a
Norinco SKS on August 7, 2001, and that in July of that year
he sold several guns to Marcum in the presence of Cline.
On August 11, 2001, Cline and Marcum sat drinking beer
and talking, at the trailer of Okey DeLong in Martin County.
Also in attendance were Butch Crum, Regina “Tiny”
Newsome, and Newsome’s son, Kenny. Luther Smith arrived
while Crum and Newsome were away on a beer run.
Inexplicably, the tenor of the conversation between Cline
and Smith began to change, from “joking around” and
“kidding around,” to heated and angry. Cline began to direct
his anger toward Marcum, threatening to knock her through
a nearby wood shed and the like. Fearing for her safety,
Marcum instructed Kenny to survey the proceedings, and to
call 911 or the sheriff’s office if Cline became violent. Cline
commenced hitting Marcum all the same, and so Marcum
seized the first available opportunity (when Cline went inside
to use the restroom) to plead with Smith: “I told Luther to
please help me ... I knew [Cline] was drinking, and I knew he
was going to hurt me.” J.A. at 173.
Smith took Marcum at her word, and departed with her in
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.
4 United States v. Cline No. 02-5966
1Luther 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.
The three pursuers caught up with Smith and Marcum “on
a nearby road,” and mayhem ensued. Cline pummeled
Smith1, leaving him unconscious in the road, and then seized
Marcum’s car, preventing her from escaping. He beat
Marcum in the car, and then sped away, possibly over Smith’s
supine figure. (Smith died in the road, but not before being
struck by at least one other passing car.) Marcum testified
that Cline ignored her pleas and protestations, exclaiming
“you want Luther that bad, you are going to get him, you are
going to watch me run over him.” J.A. at 176.
Cline then drove Marcum back to DeLong’s trailer. Once
inside the trailer, Cline exclaimed: “I’ve already killed
Luther. You’ve seen too much. Now you are going to die,
bitch.” J.A. at 177. He continued to beat Marcum severely,
cracking three ribs and her skull, inducing swelling in her
brain, breaking her tailbone, and inflicting several large
bruises. Cline may have succeeded in carrying out his threat
to kill his wife, had the police not arrived to arrest him.
On November 15, 2001, a grand jury indicted Cline on
charges of carjacking (Count 1), possession of firearms while
subject to a domestic violence order (Counts 2 through 5),
and using and carrying a firearm during and in relation to a
crime of violence (Count 6), in violation of 18 U.S.C.
§§ 2119, 922(g)(8)(B), and 924(c), respectively. During
pretrial proceedings, Cline moved to dismiss Counts 2-5,
arguing that the “dismissal” of the April 2001 domestic
violence petition removed any order then in force against him.
In response, the government produced an affidavit from the
issuing judge, which affirmed that the December 2000 order
remained in effect after April 2001. The district court
thereafter denied Cline’s motion to dismiss, and granted a
government motion to bar defense counsel from reasserting

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

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

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No. 02-5966 United States v. Cline 9
2Rule 8(a) has since been amended to allow joinder of two or more
offenses where they “are of the same or similar character, or are based on
the same act or transaction, or are connected with or constitute parts of a
common scheme or plan.” FED. R. CRIM . P. 8(a).
Rule of Criminal Procedure 8(a) then in force.2 We review
the denial of a motion to sever for abuse of discretion. United
States v. Jacobs, 244 F.3d 503, 506 (6th Cir. 2001).
Cline’s brief argues that “[t]here was no evidence that
Counts 2, 3, 4 & 5 were part of the same transaction alleged
in Counts 1 & 6, nor that they were part of a common
scheme.” Indeed, the government’s argument that every
count “involved domestic violence” against the same person,
and that each count concerns events from “the summer of
1991 ... in the Eastern District of Kentucky,” might seem a
difficult fit with the standard set forth in Rule 8(a).
Yet Cline fails to establish (or even to argue) that joinder of
the six Counts prejudiced him in any way. This omission is
fatal to Cline’s position, since Federal Rule of Criminal
Procedure 14 requires prejudice for an order of separate trials,
and “an appellant must show that the denial of his motion for
severance of counts affected his ‘substantial rights’.” United
States v. Cope, 312 F.3d 757,781 (6th Cir. 2002) (citing
United States v. Chavis, 296 F.3d 450, 461 (6th Cir. 2002)).
Additionally, the district court’s limiting instructions,
which asked the jury to separately consider the evidence for
each count and not to decide Cline’s guilt or innocence on one
count based on its decision on another (with the exception of
Count 6), minimized any possible prejudice. See Jacobs, 244
F.3d at 507; Cope, 312 F.3d at 781.
10 United States v. Cline No. 02-5966
D. The Sentencing Enhancements
Cline asserts that the district court erred by: (1) applying a
two-level enhancement for committing a carjacking under the
United States Sentencing Guidleines § 2B3.1(b)(5); (2)
counting past convictions which may have been uncounseled;
(3) applying a two-level enhancement for obstruction of
justice under USSG § 3C1.1; and (4)applying a two-level
enhancement for making a threat of death during the
carjacking under USSG § 2B3.1(b)(2)(F).
“Legal conclusions regarding [application of the
sentencing] guidelines are reviewed de novo; however, this
circuit gives due deference to the district court’s application
of the guidelines to the facts pursuant to 18 U.S.C.
§ 3742(a).” United States v. Smith, 320 F.3d 647, 657 (6th
Cir. 2003) (citing Buford v. United States, 532 U.S. 59
(2001)). Factual findings used to determine a defendant’s
criminal history category are reviewed for clear error. United
States v. Wilson, 168 F.3d 916, 922 (6th Cir. 1999).
Three of Cline’s four arguments may be disposed of briefly.
1. Enhancement for Carjacking
United States Sentencing Guidelines § 2B3.1(b)(5) permits
a two-level enhancement “[i]f the offense involved
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
occurs if “the same aspect of a defendant’s conduct factors
into his sentence in two separate ways,” and neither Congress
nor the Sentencing Commission intended to impose multiple

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No. 02-5966 United States v. Cline 11
penalties. United States v. Farrow, 198 F.3d 179, 193-94 (6th
Cir. 1999).
Cline’s only citation in support of this argument is to
Farrow, in which we determined that it was impermissible
double-counting to employ Farrow’s act of using his vehicle
as a dangerous weapon both to convict him of aggravated
assault and to enhance his sentence (for “otherwise using” a
dangerous weapon, i.e., the same vehicle). Id. at 195.
However, Cline fails to note the language in Farrow
observing that “the Sentencing Guidelines expressly mandate
double counting under some circumstances through the
cumulative application of sentencing adjustments.” Id. at
194. For example, “Congress has clearly indicated its intent
to punish cumulatively violations of §§ 2119 and 924(c) [the
federal carjacking statute and the provision for enhanced
punishment for using a dangerous or deadly weapon during a
violent crime, respectively].” United States v. Johnson, 22
F.3d 106, 108 (6th Cir. 1994) (quoting United States v.
Singleton, 16 F.3d 1419, 1425 (5th Cir. 1994)), cited in
Farrow, 198 F.3d at 194.
Given this express mandate, the district court properly
imposed the enhancement for carjacking.
2. Counting Past Convictions
Cline also argues that the district court erred in computing
Cline’s criminal history score, by counting past convictions
which may have been uncounseled. Cline appears to contend
that, in order to legitimately rely on the convictions listed in
paragraphs 106, 107, 108, 110, 111, and 113 of the
presentence investigation report, the district court was
required to find that Cline was represented by counsel, or
explicitly waived his right to counsel, in each case. Cline
cites Burgett v. Texas, 389 U.S. 109 (1967) for the principle
that “[p]resuming waiver of counsel from a silent record is
impermissible.” Id. at 114-15.
12 United States v. Cline No. 02-5966
The United States Supreme Court rejected a similar
argument in Parke v. Raley, 506 U.S. 20, 31 (1992),
remarking that “[a]t the time the prior conviction at issue in
Burgett was entered, state criminal defendants' federal
constitutional right to counsel had not yet been recognized,
and so it was reasonable to presume that the defendant had
not waived a right he did not possess.” Parke reaffirmed the
application of a presumption of regularity to state court
proceedings, even as to the waiver of counsel, and Cline cites
no precedent to support his contention that said presumption
“does not apply in this matter.”
In relying on this presumption to compute Cline’s criminal
history score, the district court did not err.
3. Enhancement for Obstruction of Justice
Cline argues that the district court erred by applying a two-
level enhancement for obstruction of justice without first
making the necessary findings. Section 3C1.1 of the
sentencing guidelines provides for such an enhancement
where “the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction,” and the
obstructive conduct related to the offense. U.S. SENTENCING
GUIDELINES MANUAL § 3C1.1; see also United States v.
Dunham, 295 F.3d 605, 609 (6th Cir. 2002).
The Commentary to § 3C1.1 provides a “non-exhaustive
list” of examples of conduct which may result in an
enhancement for obstruction of justice, including
“committing, suborning, or attempting to suborn perjury,”
U.S. SENTENCING GUIDELINES MANUAL § 3C1.1, cmt. n. 4(b)
(2003), and “providing materially false information to a judge
or magistrate,” id., n. 4(f). The Commentary defines as
“material” any “information that, if believed, would tend to
influence or affect the issue under determination,” id., n. 6.
The Commentary also cautions that

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No. 02-5966 United States v. Cline 13
[i]n applying this provision in respect to alleged false
testimony or statements by the defendant, the court
should be cognizant that inaccurate testimony or
statements sometimes may result from confusion,
mistake, or faulty memory and, thus, not all inaccurate
testimony or statements necessarily reflect a willful
attempt to obstruct justice.
Id., n. 2.
The district court in this case identified several areas of
perjurious testimony by Cline, including:
Cline’s statement under oath that he did not drive the car
away, that [Marcum] drove the car and he was invited
along with her ... that he went up the coal mine road to
get away from Luther Smith when Luther returned ...
[and] that he didn’t want to have a further confrontation
with him.
J.A. at 225-26. The district court explicitly found that these
statements constituted “sufficient testimony in evidence to
support [the enhancement for] obstruction of justice.” J.A. at
227. Because “the jury had to disbelieve [Cline] entirely to
convict him,” J.A. at 225, the court found that the obstructive
conduct was sufficiently related to the offense of conviction.
Cline challenges this finding by reference to United States
v. Tackett, 193 F.3d 880, 886-87 (6th Cir. 1999), charging
that Tackett requires a sentencing judge to specify particular
elements of “substantial interference.” Because Tackett
addressed the proper procedure for sentencing under
Guidelines § 2J1.2(b), which applies to convictions for
perjury, rather than § 3C1.1, it is of little guidance here.
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,
364, 2002 WL 1894647, at *4-5 (6th Cir. 2002), in which this
14 United States v. Cline No. 02-5966
3The government does not seek to justify this enhancement based on
any threats made to or regarding the owner of the vehicle, Luther Smith.
Court upheld enhancements for obstruction based on similar
perjurious testimony. The district court did not abuse its
discretion in this case.
4. “Threat of Death” During the Carjacking
The most difficult question posed by Cline’s appeal
involves the propriety of an enhancement for making a threat
of death during the carjacking, under § 2B3.1(b)(2)(F).
Section 2B3.1 of the Guidelines allow enhancement “if a
threat of death was made” during a robbery. U.S.
SENTENCING GUIDELINES MANUAL § 2B3.1(b)(2)(F). Cline
contends that “any threats were made after the taking of the
vehicle had been accomplished.” Appellant’s Br. at 9.
As the district court correctly observed, a vote to convict
necessarily implies that the jury believed Marcum’s
description of the events leading up to the apprehension of
Cline by the police. Marcum’s testimony was that she
regained consciousness upon arrival at DeLong’s trailer,
“[a]nd we went in the house, and no one was there.” J.A. at
177. Asked “what happened next,” Marcum responded:
[Cline] punched me and knocked me over the kitchen
table. And I got back up, and he punched me again.
That’s when he chipped my right front tooth. And then
he told me that I had seen too much and [his] exact
words were, “I’ve already killed Luther. You’ve seen too
much. Now you are going to die, bitch.”
Id. From this, it is clear that the threat of death in question3
occurred after Cline and Marcum returned to DeLong’s trailer
and exited the purloined vehicle. Enhancement for this threat
under § 2B3.1(b)(2)(F) would require a finding that it was
made “during” the robbery/carjacking, i.e. that the act of

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No. 02-5966 United States v. Cline 15
carjacking did not terminate when Cline and Marcum left the
vehicle.
Determining the duration of a carjacking has proved a
thorny task for the federal courts. In United States v.
Vazquez-Rivera, 135 F.3d 172, 178 (1st Cir. 1998), the First
Circuit acknowledged the “the not insubstantial problem of
delineating the precise temporal limits of the crime of
carjacking.” And while that court opined that it “need not
provide a comprehensive answer to this problem,” it
proceeded to uphold an enhancement for serious bodily injury
where the defendant used a firearm first to obtain possession
of the victim’s car, and then “to intimidate her immediately
prior to raping her.” Id. Although the rape occurred outside
of the vehicle, the court held that “the injuries covered are not
limited to those resulting from the ‘taking’ of a vehicle, but
also include those caused by the carjacker at any point during
his or her retention of the vehicle.” Id. (citing United States
v. Cruz, 106 F.3d 1134, 1137 (3rd Cir. 1997) (holding that a
woman raped during a carjacking was a “victim” of the
carjacking for sentencing purposes; court may “look at all the
conduct underlying the offense of the conviction”)).
In Ramirez-Burgos v. United States, 313 F.3d 23, 30 n.9
(1st. Cir 2002), the First Circuit reaffirmed, “without
hesitation, that the commission of a carjacking continues at
least while the carjacker maintains control over the victim and
her car.” The court concluded that rape of the victim
“resulted” from the carjacking, because “the rape, like the
earlier brandishing of the gun, provided the intimidation by
which the carjackers extended their control of the victim and
the automobile.” Id. at 30.
The First Circuit’s decision to consider for purposes of
sentencing all acts occurring during a defendant’s control of
the seized vehicle represents an effort to effectuate legislative
16 United States v. Cline No. 02-5966
4The 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.
intent4 and accords with that circuit’s “interpretation of
sentencing enhancement regimes generally.” Vazquez-Rivera,
135 F.3d at 178. Courts have arrived at similar conclusions
in measuring the duration of carjacking for purposes of mens
rea. See United States v. Lebron-Cepeda, 324 F.3d 52, 62
(1st Cir. 2003)(Howard, J., concurring); United States v.
Jones, 2003 U.S.Dist. LEXIS 9933 (E.D.Pa. 2003)(adopting
reasoning of Howard, J., on the issue “of the length or
definition of taking when there’s an extended carjacking
involving the continued presence of the victim.”)
Similarly, the Ninth Circuit has reasoned that a carjacking
continues until the victim is “permanently separated from her
car.” United States v. Hicks, 103 F.3d 837, 844 n.5 (9th Cir.
1996). The District Court of Puerto Rico has upheld an
enhancement for serious bodily injury where a rape took place
in an apartment, but the defendant “was still in full control of
the carjacked vehicle, as he retained the keys to the car, had
a victim in its trunk, and the owner under his command.”
United States v. Gonzalez-Mercado, 239 F.Supp.2d 148, 150
(D. P.R. 2002).
In accord with this well-supported approach, we do not find
that the district court erred in applying the enhancement for
Cline’s threat of death. At the time of the threat, Cline had
control over the victim of the carjacking, and had left for dead
the owner of the vehicle. Although Marcum did not testify as
to whether Cline retained the keys to the car, the district court
was justified in finding that he had not permanently separated
her from the vehicle. As with prior efforts to address this
issue, we need not draw a precise line demarcating the
termination of any and all carjackings. It will suffice to hold
that the carjacking persisted at least until further dissipation
of the indicia of Cline’s control over the vehicle. We will not

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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.

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