United States Court of Appeals,

Eleventh Circuit.

No. 94-6285

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Alphonzo Leon WILLIAMS, a/k/a Hoss, a/k/a Alphonso Leon Williams,

a/k/a Alfonzo Leon Williams, a/k/a Alfonso Leon Williams, a/k/a

Fred Bell, Defendant-Appellant.

May 9, 1995.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CR-93-AR-248-S), William M. Acker, Jr.,

Judge.

Before KRAVITCH, HATCHETT and BARKETT, Circuit Judges.

HATCHETT, Circuit Judge:

Alphonzo Leon Williams appeals his conviction under the

federal carjacking statute and his twenty-five-year sentence. We

affirm.

FACTS

On April 28, 1993, Scott Whitehead was driving his pickup

truck in Birmingham, Alabama, with Tim Donaldson sitting in the

passenger seat. After noticing a car following them, Donaldson

loaded a pistol that he had previously placed underneath his seat.

Eventually, Whitehead stopped at an intersection. At this

point, the appellant, Williams, exited the tailing vehicle, and

approached. When Williams reached Whitehead's door, he pointed a

gun inside the truck. In response, Donaldson, from his position in

the passenger seat, began shooting across Whitehead and through the

driver's window, hitting Williams. One of Donaldson's shots also
 1

A superseding indictment charged Williams with a second

count of possessing a firearm as a convicted felon in violation

of 18 U.S.C. §§ 922(g) and 924(a)(2). 

struck Whitehead in the side of the head.

When Williams began to retreat, Donaldson noticed that

Whitehead was unconscious. He then pushed Whitehead against the

driver's door and began to operate the truck. As Donaldson started

to speed away, Williams fired several shots.

Approximately twenty-four hours later, Whitehead died as a

result of the gunshot wound.

PROCEDURAL HISTORY

On October 1, 1993, a federal grand jury in the Northern

District of Alabama returned an indictment charging Williams with

one count of attempted carjacking in violation of 18 U.S.C. §§ 2119

and 2.1

 Before trial, Williams filed a motion to exclude any

evidence concerning Whitehead's death. A magistrate judge

recommended that Williams's motion be denied, explaining that the

carjacking statute "makes the death relevant because it provides

for heightened punishment if a death "results' from a carjacking or

attempted carjacking.... It is not merely a question of

sentencing, but an element of the charged offense itself."

Due to this comment in the magistrate judge's report and

recommendation, the government superseded the indictment so as to

charge Williams with a carjacking "resulting in the death of

Richard "Scott' Whitehead." Williams then filed a motion to strike

this added language in the indictment, or alternatively, to

bifurcate the trial into a guilt phase and a penalty phase.

In granting Williams's request for a bifurcated trial, the
 2

The jury also convicted Williams on the firearm count. 

district court disagreed with the magistrate judge, and found that

death is only a sentencing enhancement feature, not an element of

the carjacking statute. The district court, however, agreed with

the magistrate judge that evidence of Whitehead's death would be

admissible during the guilt phase of the trial. Thus, during the

guilt phase, the government elicited testimony from Donaldson, over

Williams's objection, that Whitehead was physically located "in the

cemetery."

After three days of trial, the guilt phase concluded on

January 5, 1994. Before sending the indictment to the jurors for

their deliberations, the district court redacted the words

"resulting in the death of Richard "Scott' Whitehead" from the

carjacking count. The next day, the jury found Williams guilty of

carjacking.2

 The second phase of the trial then commenced. A

forensic pathologist, who testified for the government about the

cause of Whitehead's death, was the only witness during the penalty

phase. After the court charged the jury, it found that a death did

not result from Williams's violation of the carjacking statute.

On March 21, 1994, the district court held a sentencing

hearing. Applying the United States Sentencing Guidelines to

Williams's convictions, the presentence investigation report (PSR)

calculated a range of 140 to 175 months imprisonment based on a

total offense level of twenty-eight and a criminal history category

of VI. In arriving at the total offense level, the PSR added seven

levels pursuant to U.S.S.G. § 2B3.1(b)(2)(A) because Williams

discharged a firearm during the carjacking. Williams objected to
 3

Because the firearm count was grouped with the carjacking

count pursuant to U.S.S.G. § 3D1.2(c), the district court totaled

the statutory maximum penalties for the carjacking (fifteen

years) and firearm (ten years) convictions to comprise the

twenty-five-year sentence. 

this increase, arguing that he only fired shots straight into the

air after Donaldson made his escape. Although the district court

recognized that Williams may have fired the shots into the air, it

rejected his contention, and accepted the increase. Also over

Williams's objection, the district court granted the government's

motion for an upward departure pursuant to U.S.S.G. § 5K2.1,

explaining that "by a preponderance of the evidence, and using that

standard rather than the much higher standard that the jury was

operating under, that under the terms of 5K2.1 death did result."

Accordingly, the district court increased Williams's total offense

level to thirty-four, which placed him in a guideline range of 262

to 327 months. The district court then sentenced Williams to 300

months (twenty-five years) in prison.3

CONTENTIONS

Williams contends that Congress did not have the authority to

enact the federal carjacking statute under the Commerce Clause, and

even if it did, the statute is unconstitutionally vague. He also

argues that the district court abused its discretion in allowing

evidence of Whitehead's death during the guilt phase of his trial

because it was irrelevant and highly prejudicial. Finally,

Williams contests his sentence, arguing that he did not fire his

gun during the commission of the carjacking; therefore, the

district court erred in increasing his offense level under section

2B3.1(b)(2)(A); he also claims that the upward departure, pursuant
to section 5K2.1, was erroneous because the jury found that

Whitehead's death did not result from his carjacking violation.

With respect to Williams's constitutional challenges, the

government responds that courts throughout the country have

consistently rejected his Commerce Clause claim; further, the

government asserts that the carjacking statute is not

unconstitutionally vague because it clearly proscribes patently

criminal conduct. In response to Williams's evidentiary claim, the

government argues that Whitehead's death was relevant, and that

such evidence did not substantially prejudice the jury. Finally,

with respect to the sentence, the government contends that Williams

fired several shots as Donaldson was driving away, therefore, the

seven-level increase pursuant to section 2B3.1(b)(2)(A) was

justified; the government also contends that the district court's

upward departure pursuant to section 5K2.1 was proper because

Whitehead died as a result of the carjacking.

ISSUES

This appeal requires us to decide whether: (1) Congress

possessed the authority, under the Commerce Clause, to enact the

federal carjacking statute; (2) the carjacking statute is

unconstitutionally vague; (3) the district court abused its

discretion in allowing evidence of Whitehead's death; (4) the

district court properly applied a seven-level increase pursuant to

U.S.S.G. § 2B3.1(b)(2)(A); and (5) the district court erred in

granting an upward departure pursuant to U.S.S.G. § 5K2.1.

DISCUSSION

In 1992, Congress enacted the federal carjacking statute. The
original version provided:

Whoever, possessing a firearm as defined in section 921

of this title, 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

violence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than

15 years, or both,

(2) if serious bodily injury (as defined in section 1365

of this title) results, be fined under this title or

imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or

imprisoned for any number of years up to life, or both.

18 U.S.C. § 2119 (1992). This version of the statute was in effect

when the grand jury indicted Williams and when the trial jury

convicted him. On September 13, 1994, Congress amended the

statute. As a result of the amendments, the statute now reads:

Whoever, 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 violence or by

intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than

15 years, or both,

(2) if serious bodily injury (as defined in section 1365

of this title) results, be fined under this title or

imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or

imprisoned for any number of years up to life, or both,

or sentenced to death.

18 U.S.C. § 2119 (1994) (emphasis added). Thus, as the emphasized

portions indicate, the 1994 amendments changed the intent

requirement, and added the possibility of the death penalty. The

overall structure of the carjacking statute, however, remains

intact.

A. Commerce Clause
 Williams argues that Congress exceeded its power under the

Commerce Clause in enacting the federal carjacking statute. While

this is an issue of first impression for this court, several of our

sister circuits have been presented with identical challenges to

section 2119, and all have held that its creation was a valid

exercise of congressional authority under the Commerce Clause. See

United States v. Martinez, 49 F.3d 1398, 1400-01 (9th Cir.1995);

United States v. Bell, 46 F.3d 442, 444-45 (5th Cir.1995); United

States v. Overstreet, 40 F.3d 1090, 1093 (10th Cir.1994); United

States v. Harris, 25 F.3d 1275, 1280 (5th Cir.), cert. denied, ---

U.S. ----, 115 S.Ct. 458, 130 L.Ed.2d 366 (1994); United States v.

Johnson, 22 F.3d 106, 108-09 (6th Cir.1994). For the reasons

stated in those opinions, we agree that, under current Commerce

Clause doctrine, the carjacking statute is constitutional.

B. Vagueness

 Williams presents another constitutional question of first

impression for this court. He argues that the federal carjacking

statute is unconstitutionally vague. The void-for-vagueness

doctrine places two requirements on criminal statutes. First, it

requires a statute to "define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is

prohibited." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct.

1855, 1858, 75 L.Ed.2d 903 (1983). Interestingly, Williams does

not invoke this requirement to challenge the main paragraph of

section 2119, in which carjacking is defined. Even if he did, such

an argument would fail because "[t]he terms used are clear and easy

to understand, and reasonably define the prohibited behavior."
Martinez, 49 F.3d at 1403 (rejecting a vagueness challenge to the

carjacking statute).

Instead, Williams invokes the second prong of the

void-for-vagueness doctrine, which requires criminal statutes to be

defined "in a manner that does not encourage arbitrary and

discriminatory enforcement." Kolender, 461 U.S. at 357, 103 S.Ct.

at 1858. Williams contends that section 2119 is unclear as to

whether subparagraphs (2) and (3), which provide for enhanced

punishments if serious bodily injury or death result, are elements

of the carjacking offense. He asserts that if some courts treat

the subparagraphs as elements, while other courts merely utilize

them as sentencing enhancers, "arbitrary and discriminatory

enforcement" of the statute may result. In support of his

argument, Williams points to the conflicting views of the

magistrate judge and the district court.

 Despite Williams's contentions and the confusion in the

district court, we find that section 2119 clearly indicates

Congress's intent that subparagraphs (2) and (3) be treated as

sentencing enhancement features, and not elements of the offense.

In arriving at this conclusion, we refer, as we must, to the

language and structure of the statute. See Garrett v. United

States, 471 U.S. 773, 787, 105 S.Ct. 2407, 2415-16, 85 L.Ed.2d 764

(1985). The first paragraph of section 2119 defines carjacking and

ends in the word "shall," followed with a dash. Then, in three,

separate, numbered subparagraphs, the statute describes different

degrees of punishment. This format clearly signifies that the

first main paragraph of the statute contains the elements of the
 4

We recognize that when listing the elements of a section

844(i) offense, the Fifth Circuit has included the "death

results" provision. See United States v. Triplett, 922 F.2d

1174, 1177 (5th Cir.), cert. denied, 500 U.S. 945, 111 S.Ct.

2245, 114 L.Ed.2d 486 (1991). The issue, however, of whether the

provision is a sentencing enhancer, as opposed to an element of

the offense, was not addressed, and therefore, we do not find

Triplett to be contrary authority. 

carjacking offense, and the three numbered subparagraphs are

sentencing provisions.

Furthermore, while Williams fears arbitrary enforcement, we

note that similar provisions in other statutes have consistently

been interpreted as enhancers, not elements. For example, similar

provisions in 18 U.S.C. §§ 241 and 242, federal civil rights

crimes, have been interpreted as sentencing enhancers. See Catala

Fonfreias v. United States, 951 F.2d 423, 426 (1st Cir.1991), cert.

denied, --- U.S. ----, 113 S.Ct. 105, 121 L.Ed.2d 64 (1992). The

First Circuit explained:

The natural reading of the text, given the placement of the

"death resulting" language within the sentencing provisions of

both statutes, is that Congress intended to add "death

resulting" as a factor that would justify an enhanced

sentence. In other words, the victim's death is not an

element of either offense, but simply an aggravating

circumstance which gives the district court the authority to

impose harsher punishment.

Catala Fonfreias, 951 F.2d at 426. Likewise, the Eighth Circuit

has construed the "if death results" provision in 18 U.S.C. §

844(i), the federal arson statute, as a sentencing enhancer. See

United States v. Ryan, 9 F.3d 660, 667-69 (8th Cir.1993), modified

on other grounds, 41 F.3d 361 (8th Cir.1994) (en banc).4

 Finally,

the Fourth Circuit has interpreted the "if death or serious bodily

injury results" language of 21 U.S.C. § 841(b)(1)(C), the commonly

used narcotics statute, as a sentencing enhancement provision. See
 5

To avoid any future confusion, we reiterate that

subparagraphs (2) and (3) create sentencing questions for the

district court. Thus, a bifurcated trial, such as the one

conducted in this case, is not necessary. We note, however, that

due to the 1994 amendments, the district court is required to

send to the jury the question of whether death resulted in one

instance—when the government seeks capital punishment. See 18

U.S.C. § 3593. In such a case, the jury must determine whether

death resulted beyond a reasonable doubt. See 18 U.S.C. §

3591(a)(2). 

United States v. Patterson, 38 F.3d 139, 143-44 (4th Cir.1994).

 In sum, section 2119 is not unconstitutionally vague because

its plain language and structure clearly indicate that the "if

serious bodily injury results" language of subparagraph (2) and the

"if death results" language of subparagraph (3) are sentencing

enhancement provisions. The fact that the statute "expose[s]

defendants to enhanced penalties based on legally significant

factors does not make the statute void for vagueness." United

States v. Easter, 981 F.2d 1549, 1557 (10th Cir.1992), cert.

denied, --- U.S. ----, 113 S.Ct. 2448, 124 L.Ed.2d 665 (1993).5

C. The "Cemetery" Testimony

During the guilt phase of the trial, the government presented

evidence showing that Donaldson shot Whitehead rendering him

unconscious. Williams does not dispute the admissibility of this

evidence. The district court, however, also allowed the government

to elicit that Whitehead was physically located "in the cemetery"

at the time of the trial. Williams contends that this particular

evidence was irrelevant and improperly prejudiced the jury.

 Evidence is relevant if it has "any tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be
 6

In Bonner v. City of Prichard, 661 F.2d 1206 (11th

Cir.1981) (en banc), this court adopted as binding precedent all

decisions of the Fifth Circuit rendered prior to October 1, 1981. 

without the evidence." Fed.R.Evid. 401. In a criminal trial,

issues of consequence generally consist of "the elements of the

offenses charged and the relevant defenses (if any) raised to

defeat criminal liability." United States v. Hall, 653 F.2d 1002,

1005 (5th Cir.1981).6 "[R]elevant evidence is admissible," but

"may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice." Fed.R.Evid. 402 and 403.

 When considering these evidentiary principles, we must be

mindful that "[t]he trial court is vested with broad discretion in

ruling upon the relevancy and admissibility of evidence." United

States v. Anderson, 872 F.2d 1508, 1515 (11th Cir.), cert. denied,

493 U.S. 1004, 110 S.Ct. 566, 107 L.Ed.2d 560 (1989). Thus, under

the abuse of discretion standard, "there will be occasions in which

we affirm the district court even though we would have gone the

other way had it been our call." In re Rasbury, 24 F.3d 159, 168

(11th Cir.1994).

 Had we been presented with this question de novo, we would

have excluded the "cemetery" testimony because, as we have already

stated, Whitehead's subsequent death was irrelevant to the elements

of the carjacking offense. Nonetheless, we believe that the

decision to admit the testimony as relevant evidence, which was not

overly prejudicial pursuant to Rule 403, was within the district

court's "range of choice, although perhaps not by a wide margin."

In re Rasbury, 24 F.3d at 168-69; cf. United States v. Accetturo,
966 F.2d 631, 637 (11th Cir.1992) ("The fact that [the witness] had

died was relevant to explain the fact that [the witness] did not

testify. Had the jury not been told, they might well have

incorrectly concluded that [the witness] was incarcerated or was

afraid to testify, fearing the impeaching cross-examination that

the defense obviously would have mounted."), cert. denied, --- U.S.

----, 113 S.Ct. 1053, 122 L.Ed.2d 360 (1993).

Finally, and perhaps most importantly, even if the district

court had abused its discretion, the admission of the single

"cemetery" comment did not have a "substantial influence on the

outcome, and sufficient evidence supports the jury's verdict."

United States v. Christopher, 923 F.2d 1545, 1552 (11th Cir.1991);

see also United States v. Eyster, 948 F.2d 1196, 1212 (11th

Cir.1991) (admission of irrelevant photograph of a dead body not

reversible error).

D. U.S.S.G. § 2B3.1(b)(2)(A)

The robbery guideline provides the base offense level for

carjacking, and is found at section 2B3.1(a). Section 2B3.1(b)

lists several specific offense characteristics for robbery

offenses, including a seven-level increase "[i]f a firearm was

discharged." U.S.S.G. § 2B3.1(b)(2)(A). Williams objected to the

application of this offense characteristic, arguing that he did not

fire his gun until after Donaldson began driving away; therefore,

he only fired after the commission of the carjacking. Initially,

the district court found that the offense level increase was proper

based on these shots, thereby rejecting Williams's attempt to

separate them from the offense. Later, in response to Williams's
request for a specific finding, the district court reasoned that

Williams drew his firearm, which then caused Donaldson to discharge

his firearm during the commission of the carjacking.

In Sentencing Guidelines cases, we review the district court's

findings of fact for clear error and its application of law to

those facts de novo. See United States v. Salemi, 26 F.3d 1084,

1086 (11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 612, 130

L.Ed.2d 521 (1994). The district court found that Donaldson fired

his firearm as Williams was committing the carjacking, and that

seconds later, Williams fired shots as Donaldson was driving away.

These findings of fact are not clearly erroneous; indeed, both

parties agree that this is what transpired. We, therefore, must

apply the guidelines to these facts de novo.

Neither section 2B3.1(b)(2)(A), nor its commentary, precisely

specify who must discharge the firearm or when it must be fired.

Specific offense characteristics, however, shall be determined on

the basis of "all acts and omissions committed [or] induced ...

that occurred during the commission of the offense ... or in the

course of attempting to avoid detection or responsibility for that

offense." U.S.S.G. § 1B1.3(a)(1). We read this language as

supporting both of the district court's reasons for applying the

offense level increase.

 First, we find that Williams discharged his firearm "during

the commission of the offense." U.S.S.G. § 1B1.3(a)(1). Crimes

involving "robbery cannot be completed without some form of flight

or attempted flight, the crime is more naturally understood to

include the act of fleeing and the immediate consequences of such
flight." United States v. Muhammad, 948 F.2d 1449, 1456 (6th

Cir.1991) (affirming increase pursuant to section 2B3.1(b)), cert.

denied, 502 U.S. 1119, 112 S.Ct. 1239, 117 L.Ed.2d 472 (1992).

Thus, although Williams argues otherwise, the commission of the

carjacking did not magically cease the moment he backed away from

Whitehead's truck; therefore, the shots he fired were discharged

during the commission of the carjacking. Furthermore, we also find

that Williams discharged his weapon in an effort "to avoid

detection or responsibility." U.S.S.G. § 1B1.3(a)(1). In firing

his weapon, in any direction, Williams made certain that Donaldson

continued to drive away, so that he could then make a clean

departure from the scene of the crime.

 Finally, we also agree with the district court's second

explanation for the increase. When Williams attempted the

carjacking with his weapon drawn, he "induced" Donaldson to fire

his weapon; thus, Donaldson's act of shooting is attributable to

Williams for purposes of the offense level increase. U.S.S.G. §

1B1.3(a)(1)(A).

E. U.S.S.G. § 5K2.1 Upward Departure

In his final assignment of error, Williams contends that the

district court erred in upwardly departing from the guidelines

pursuant to section 5K2.1. That section provides: "If death

resulted, the court may increase the sentence above the authorized

guideline range." U.S.S.G. § 5K2.1. We review the district

court's decision to depart from the guidelines in three parts. See

United States v. Huang, 977 F.2d 540, 544 (11th Cir.1992).

"First, we review de novo the district court's ruling that the
 7

Section 2B3.1(b)(3)(C) adds six levels if a victim

sustained a permanent or life-threatening bodily injury. Had

Whitehead survived his injury, however, the six-level increase

would not have been allowed because a seven-level increase for

the firearm discharge had already been added, and the cumulative

adjustment for these two factors cannot exceed eleven levels. 

See U.S.S.G. § 2B3.1(b)(3). In capping the offense level

adjustment at eleven, we believe section 2B3.1 failed to consider

resulting death. 

guidelines did not adequately consider a particular factor in

establishing the base offense level." Huang, 977 F.2d at 544.

Williams does not contest the upward departure under this prong of

the analysis. Indeed, while the guideline establishing the base

offense level for carjacking does consider life-threatening bodily

injury, it fails to take into account death. 7 Thus, the district

court properly looked to section 5K2.1.

 "Second, we must review for clear error the factual findings

supporting the departure." Huang, 977 F.2d at 544. Williams

contends that he could not foresee that Donaldson would

accidentally shoot Whitehead; therefore, the district court erred

in finding that Whitehead's death resulted from the carjacking.

We, however, agree with the Second and the Seventh Circuits that,

when determining whether a death "resulted" from the offense for

purposes of section 5K2.1, a factual finding "that death was

intentionally or knowingly risked" is sufficient. United States v.

White, 979 F.2d 539, 545 (7th Cir.1992); see also United States v.

Rivalta, 892 F.2d 223, 232 (2d Cir.1989). In approaching the truck

with a weapon, Williams knowingly risked the lives of its

occupants; he " "put into motion' a chain of events that contained

an "inevitable tragic result.' " White, 979 F.2d at 545. Thus, we

conclude that the district court's finding that a death resulted
 8

Defense counsel's motion to withdraw is denied. 

from the carjacking was not clearly erroneous.

 "Finally, we review the reasonableness of the district

court's departure given the legal and factual posture of the case."

Huang, 977 F.2d at 544. Williams argues that an upward departure

was unreasonable given the legal posture of his case.

Specifically, he contends that his acquittal at the penalty phase

of the trial should have prevented the district court from

departing on the basis that a death resulted. Williams, however,

fails to recognize that "[a]cquitted conduct may be considered by

a sentencing court because a verdict of acquittal demonstrates a

lack of proof sufficient to meet a beyond-a-reasonable-doubt

standard—a standard of proof higher than that required for

consideration of relevant conduct at sentencing." United States v.

Averi, 922 F.2d 765, 766 (11th Cir.1991). Thus, his contention

fails, and we conclude that the district court's departure was

reasonable in all respects.

CONCLUSION

For the foregoing reasons, we affirm Williams's carjacking

conviction and his twenty-five-year sentence.8

AFFIRMED.