U.S. v. Malone, No. 99-5201

• Decision Date: 23 August 2000
• Docket Number: No. 99-5201
• Citation: 222 F.3d 1286
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STACY LYNN MALONE, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1286

222 F.3d 1286 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STACY LYNN MALONE, Defendant-Appellant.

No. 99-5201

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 23, 2000

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 99-CR-12-K) [Copyrighted Material Omitted] Vicki Mandell-King, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.

Thomas Scott Woodward, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.

Before EBEL,MCKAY, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Stacy Malone was charged with seven counts in a fourteen count superseding indictment. On May 20, 1999, at the conclusion of a jury trial, Malone was found guilty of: conspiracy, interference with interstate commerce, possession of a firearm during a crime of violence, and carjacking. In addition, Malone was convicted of aiding and abetting in connection with each of the above offenses, with the exception of the conspiracy count. On appeal, Malone raises five issues. He argues that (1) there was insufficient evidence to support his conviction for carjacking, (2) 18 U.S.C. § 924(c) does not authorize two convictions where the predicate crimes were part of a continuous course of conduct, (3) the district court committed plain error when it instructed the jury that only a de minimis effect on interstate commerce was necessary to prove the jurisdictional nexus under 18 U.S.C. § 1951, (4) the district court erred in calculating his guideline range because there was an insufficient showing that the victim was abducted to facilitate the carjacking, and (5) the district court erred in failing to group the U.S. Express robbery conviction with the carjacking conviction under U.S.S.G. §3D1.2(c). We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.¹

BACKGROUND

U.S. Express Robbery

On December 21, 1998, Estac Love ("Love"), Willie Cobb ("Cobb"), and Stacy Malone ("Malone") decided they would rob the U.S. Express located at 1610 North Lewis in Tulsa, Oklahoma. To that end, the three men drove to the U.S. Express and observed Christine DeMauro ("DeMauro"), the manager of the U.S. Express, exiting the building. Love, Cobb, and Malone then followed DeMauro as she drove away from the U.S. Express with the intention of carjacking her and forcing her to return to the U.S. Express to enable them to get inside the business and rob it. DeMauro, unaware that she was being followed, drove to her grandparent's house to pick up her son. When DeMauro arrived at her grandparent's house, she went into the house to retrieve her son. As she was walking back outside to drive away, Love approached her, put a gun to her face, and demanded that she get down. Love then dragged her back to the carport, which is attached to her grandparent's house, and again forced her onto the ground, demanding that DeMauro turn over her keys to him. DeMauro lied, saying that she did not have the keys. At that point, Love walked over to DeMauro's car, retrieved her keys, and found the key and alarm beeper for U.S. Express.

Meanwhile, Malone, armed with a .380 caliber pistol, and Cobb noticed that the people inside the house were watching. At that point Malone, Cobb, and Love, dragging DeMauro, entered the house and tied up DeMauro's grandparents and her son with duct tape. When the men used the duct tape to cover the little boy's mouth, DeMauro became extremely upset, demanding that the men take the tape off the boy's mouth because he was asthmatic. Cobb complied. Meanwhile, Malone had searched the house and returned with a glass jar full of change which he took with him when they eventually left the house.

Leaving the grandparents and the boy inside the house, Love forced DeMauro back into the front passenger seat of her car at gunpoint. With Cobb seated in the back seat and Malone following in another car, Love drove DeMauro's car back to the U.S. Express at 1610 North Lewis in Tulsa, Oklahoma.

When they arrived at the U.S. Express, Love forced DeMauro to deactivate the alarm system and threatened to kill her if she hit any other buttons. Love and DeMauro then entered the building. Love directed DeMauro to remove the surveillance videotape and then had her open the safe where the money was held. Love then began filling a bag he had brought with him with money from the safe. When Love finished removing all of the money, he forced DeMauro back outside. Because Malone was not waiting out in front with his car, Love, Cobb, and DeMauro got back into her car and drove around until they found Malone. During this drive, one of the men told DeMauro not to do anything stupid as he still had the gun on her. Once Love and Cobb located Malone, they got out of DeMauro's car and grabbed approximately $900 from the bag of money. Love then said "thank you" to DeMauro and kissed her on the cheek as he walked away. Love, Cobb, and Malone then drove away in Malone's car. The three men split the money evenly with Malone receiving about $300. The majority of the money from the U.S. Express robbery had been left in DeMauro's car.

The Grandy's Robbery

On January 5, 1999, Malone, Love, and Cobb decided to rob the Grandy's restaurant located at 2140 S. Garnett in Tulsa, Oklahoma.² Malone parked the car at a bar across the parking lot from the Grandy's and the trio approached the restaurant. Malone and Love were both armed with weapons. Malone stayed outside near the drive-thru window, while Cobb stationed himself inside the front door. Love then entered the restaurant wearing a green mask and pointing his weapon at the employees. When the people in the restaurant saw Love and his gun, they began running away screaming. Love then ran out of the Grandy's after losing control of the situation, and before he was able to take any money. Malone and Cobb likewise ran from the restaurant, and the three men returned to Malone's car and drove away. (Id.)

On March 4, 1999 the grand jury for the Northern District of Oklahoma charged Malone with seven counts in a fourteen-count superseding indictment. Count three charged Malone with conspiracy in violation of 18 U.S.C. § 371, counts four and eight charged him with interference with interstate commerce and aiding and abetting in violation of 18 U.S.C. §§ 1951 and 2, counts five, seven, and nine charged Malone with possession of a firearm during a crime of violence and aiding and abetting in violation of 18 U.S.C. §§ 924(c) and 2, and count six charged him with carjacking and aiding and abetting in violation of 18 U.S.C. §§ 2119 and 2. On May 20, 1999 a jury found Malone guilty of all the above counts.

On September 14, 1999 the district court sentenced Malone. The court grouped counts three, conspiracy, and four, armed robbery and aiding and abetting, together as recommended by the presentence report. The court determined that the offense level was 20, because that was the offense level for armed robbery under U.S.S.G. § 2B3.1(a). The court then increased the base offense level by four pursuant to section 2B3.1(b)(4)(A) because a person was abducted to facilitate commission of the offense. The district court further imposed a one level increase pursuant to section 2B3.1(b)(7)(B) because the loss exceeded $10,000. The court determined that the adjusted offense level for the first group of convictions was 25.

The court then grouped count three, conspiracy, with count six, carjacking and aiding and abetting. The court determined that the base offense level was 20 pursuant to U.S.S.G. § 2B3.1(a) and then increased the base offense level by four because a victim was abducted to facilitate commission of the offense pursuant to section 2B3.1(b)(4)(A). Likewise, the court added a two-level increase pursuant to section 2B3.1(b)(5) because the offense involved a carjacking. Thus, the court determined that the adjusted offense level for the second group of convictions was 26.

The final group of convictions constructed by the court consisted of count three, conspiracy, and count eight, armed robbery and aiding and abetting. The base offense level for this crime was 20. No further adjustments were made to this group. The district court then increased Malone's offense level for each multiple count group pursuant to U.S.S.G. § 3D1.4, making Malone's combined adjusted offense level 29 for counts three, four, six, and eight. The district court then sentenced Malone to 97 months for each of counts three, four, six, and eight to run concurrently.

The district court then addressed counts five, seven, and nine, which were all firearm convictions in violation of 18 U.S.C. § 924(c). The applicable sentencing guideline, U.S.S.G. § 2K2.4(a), dictated that the penalty was that required by the statute section 924(c). Thus, the district court sentenced Malone to seven years for count five and two terms of twenty-five years for counts seven and nine. Each of these three sentences were consecutive to the 97 months for counts three, four, six, and eight. Malone now appeals his convictions and sentence.

DISCUSSION

I. Sufficiency of the Evidence

Malone argues that there was insufficient evidence for a jury to find beyond a reasonable doubt that he had the intent to kill or inflict serious bodily injury at the time he carjacked DeMauro's vehicle as required by 18 U.S.C. § 2119. Specifically, he argues that although the threats and actions of Love, Cobb, and himself may have satisfied the "by force or by intimidation" element, they did not satisfy the intent element, because there was no additional evidence that had DeMauro not complied, the defendants would have killed or injured her. We disagree that the evidence failed to show the required intent to cause serious bodily harm.

We review the sufficiency of...