IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40635

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

JERMAINE WEBSTER HARRIS, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

Before OWEN, Chief Judge, and SOUTHWICK and HIGGINSON, Circuit 

Judges.

PRISCILLA R. OWEN, Chief Judge:

After a nine-day jury trial, Jermaine Webster Harris was found guilty of 

seventeen criminal counts, including two counts of carjacking and two counts 

of possessing a firearm in furtherance of a crime of violence under

18 U.S.C. § 924(c). The district court sentenced Harris to 744 months of

imprisonment, ordered $878,533.29 in restitution, and imposed five years of

supervised release that included four “special conditions” pertaining to 

restitution and Harris’s other financial obligations under the judgment. 

Harris appeals his convictions for carjacking and possession of a firearm, 

United States Court of Appeals

Fifth Circuit

FILED

June 5, 2020

Lyle W. Cayce

Clerk

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contending the evidence is insufficient, and challenges the “special conditions”

imposed as part of his supervised release. We affirm.

I

In early 2016, Jermaine Webster Harris and two codefendants were 

indicted in the Eastern District of Texas. Approximately eight months later, a 

superseding indictment named two additional codefendants. The superseding

indictment charged Harris with seventeen counts. Relevant here, Harris was 

charged with two counts of carjacking and two counts of using, carrying, and 

possessing a firearm in relation to and in furtherance of a crime of violence

under 18 U.S.C. § 924(c). Harris pleaded not guilty, and the case proceeded to 

trial. The jury convicted Harris on all counts. Harris filed a Motion for a 

Judgment of Acquittal, which the district court denied. 

The United States Probation Office filed an initial Presentence 

Investigation Report (PSR), to which Harris objected. The probation officer 

responded to Harris’s objections in an addendum, but no change was made to 

the calculation of his guidelines range. The PSR was amended a second time, 

but the revisions did not affect the suggested guidelines range. The PSR 

contained conditions requiring that Harris: (1) “pay any financial penalty that 

is imposed by the judgment”; (2) “provide the probation officer with access to 

any requested financial information for purposes of monitoring restitution 

payments and employment”; (3) “not incur new credit charges or open 

additional lines of credit without the approval of the probation officer unless 

payment of any financial obligation ordered by the Court has been paid in full”;

and (4) “not participate in any form of gambling unless payment of any 

financial obligation order by the Court has been paid in full.” 

The district court imposed a total term of imprisonment of 744 months 

and ordered Harris to pay restitution. The court also imposed a 5-year term of 

supervised release and instructed that “the defendant must comply with the

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mandatory and special conditions and instructions that have been set forth in 

the defendant’s presentence report.” Then, in its written judgment, the district 

court set forth four “special conditions” of supervision that tracked the 

conditions recommended in the PSR. Harris appeals.

II

Harris contends that there was insufficient evidence to support his

conviction under 18 U.S.C. § 2119 on two counts of carjacking. Specifically, he 

argues that there was insufficient evidence of mens rea.

To convict Harris of carjacking under § 2119, “the [G]overnment must 

prove that: ‘the defendant, (1) while possessing a firearm, (2) took from the 

person or presence of another (3) by force and violence or intimidation (4) a 

motor vehicle which had moved in interstate or foreign commerce.’”1 “The 

defendants’ motive in taking the car is irrelevant.”2 The Supreme Court has 

explained that the intent element “of § 2119 is satisfied when the Government 

proves that at the moment the defendant demanded or took control over the 

driver’s automobile the defendant possessed the intent to seriously harm or 

kill the driver if necessary to steal the car (or, alternatively, if unnecessary to 

steal the car).”3

When a defendant moves for acquittal in the district court, this court 

reviews challenges to the sufficiency of the evidence de novo.4 “Appellate 

review is highly deferential to the jury’s verdict,”5 so the “jury’s verdict will be 

affirmed unless no rational jury, viewing the evidence in the light most 

1 United States v. Harris, 25 F.3d 1275, 1279 (5th Cir. 1994) (quoting United States v. 

Singleton, 16 F.3d 1419, 1422 (5th Cir. 1994)).

2 Id. 

3 Holloway v. United States, 526 U.S. 1, 12 (1999).

4 United States v. Danhach, 815 F.3d 228, 235 (5th Cir. 2016) (citing United States v. 

Grant, 683 F.3d 639, 642 (5th Cir. 2012)); United States v. Hale, 685 F.3d 522, 543 (5th Cir. 

2012) (citing United States v. Clayton, 506 F.3d 405, 412 (5th Cir. 2007)).

5 United States v. Ganji, 880 F.3d 760, 767 (5th Cir. 2018).

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favorable to the prosecution, could have found the essential elements of the 

offense to be satisfied beyond a reasonable doubt.”6 “In assessing the 

sufficiency of the evidence, we do not evaluate the weight of the evidence or the 

credibility of the witnesses.”7 Juries are “free to choose among all reasonable 

constructions of the evidence,”8 and “[d]irect and circumstantial evidence are 

given equal weight.”9 In this case, the Government presented sufficient 

evidence to sustain Harris’s carjacking convictions.

A

Count Four of the superseding indictment charged Harris and his 

codefendants with a carjacking on December 9, 2015. At trial, the Government 

offered testimony from two of Harris’s co-conspirators, Alton Latray Marshall 

and Derek Polk. They provided the following testimony: Marshall, Harris, and 

Polk spent two days surveilling the home of a local radio Disc Jockey, Russell 

Martin. Marshall testified that prior to a home invasion, Harris typically 

researched the victims, and in this case he intended to steal Martin’s Dodge 

Challenger. On the day that they stole the vehicle, a friend of Harris’s drove

Marshall, Harris, and Polk to Martin’s house. When they arrived at the house, 

Marshall carried a baseball bat, and Harris and Polk carried firearms. Harris 

and Polk intended to point the guns at Martin “just to scare him,” but Harris 

instructed Marshall to hit Martin with the bat if he did not listen to their 

instructions. When Martin arrived home, Harris and Polk pointed their guns 

at him. They checked Martin for weapons, and then ordered him to unlock the 

6 United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (quoting United States v. 

Roetcisoender, 792 F.3d 547, 550 (5th Cir. 2015)).

7 United States v. Girod, 646 F.3d 304, 313 (5th Cir. 2011) (citing United States v. 

Myers, 104 F.3d 76, 78-79 (5th Cir. 1997)).

8 United States v. Chaney, 964 F.2d 437, 448 (5th Cir. 1992) (quoting United States v. 

Berisha, 925 F.2d 791, 795 (5th Cir. 1991)).

9 United States v. Dien Duc Huynh, 246 F.3d 734, 742 (5th Cir. 2001) (quoting United 

States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000)).

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door to his house and disarm his alarm system. Marshall checked the house

for valuables while Polk and Harris followed Martin to a safe in Martin’s office, 

which was empty when opened. Martin also showed them a safe in the master 

bedroom closet but said he was unable to open it because it was installed at 

the time he purchased the home, and he did not know the combination. They 

then took Martin into the kitchen area where Harris duct taped him to the 

chair and then “rampaged the whole house.” Harris “knocked over a lot of 

stuff” including plants and furniture. While Martin was in the chair, Polk kept 

a gun pointed at him. Polk tried to reassure Martin that “everything was going 

to be okay and that he wasn’t going to be hurt,” but Harris got “really . . . mad,” 

pointed the gun at the back of Martin’s head, and accused him of lying about 

his belongings. At one point, Polk told Martin, “[y]ou are lucky I am here. If I 

was not here, they would probably shoot you.” While the men were ransacking 

the house, Martin offered other belongings, as well as money. After Martin 

had been tied to the chair for about ten minutes, Harris took the car keys from 

the counter, the intruders got into the Challenger, and Harris drove it away.

Viewing the evidence in the light most favorable to the Government, a 

rational jury could have found that Harris had the intent to seriously injure or 

kill Martin if necessary at the moment that he took the Dodge Challenger.10 

B

Count Eight charged Harris with a carjacking on July 25, 2015. At trial, 

the government presented the following testimony from Harris’s coconspirators, Polk, Marshall, and Kenneth Demarcus Cash: approximately 

eleven days before they stole the vehicle, Harris told Polk that he needed to get 

his own car by the end of the week. On July 24, Polk, Cash, Harris, and another 

man surveilled the house of their victims, the Davenports. During their 

10 See Holloway v. United States, 526 U.S. 1, 12 (1999).

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surveillance, they discussed their intention to steal the Davenports’ Audi 

during the home invasion. The next day, Polk, Cash, and Harris returned to 

the home carrying automatic weapons. Harris broke a window, entered the 

home, and opened the garage so Polk and Cash could also enter. Mr. 

Davenport, who was 77, was watching television, and the men alternated 

keeping an eye on him. After finding cash and a locked safe, the men 

approached Davenport and told him to open the safe. All three men pointed 

firearms at Davenport. Davenport was slow to open the safe, so Harris 

threatened him, saying: “if I put one in you, I bet you will open it then.” Shortly 

thereafter Davenport was able to open the safe, and he was ordered to “lie face 

down on the floor” while Harris and Cash filled two duffle bags with jewelry, 

cash, and guns. The men then walked Davenport to the other end of the house, 

told him to go into the bathroom, count to 100, and not call the police. Harris 

and Cash slashed the Davenports’ phone cords, and Cash grabbed the Audi 

keys off of the counter. The vehicle was involved in a crash as they began to 

drive away. They then ran away on foot.

Harris argues that “the taking of the car is too attenuated from any 

violent acts perpetrated against Dr. Davenport.” However, we only need to 

consider whether a rational jury could infer that Harris “possessed the intent 

to seriously harm or kill [Mr. Davenport] if necessary to steal the car,”11 not 

whether any violent acts were perpetrated against the victim at the time that 

the vehicle was taken. There was sufficient evidence for a rational jury to 

make such an inference.

11 Id.

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C

Harris relies on United States v. Harris,12 in which this court held that 

there was insufficient evidence to support the defendant’s carjacking 

conviction.13 However, the facts of that case are distinguishable. In Harris, 

the defendant was hitchhiking and got into a stranger’s car.14 The two men 

drove for a period of time, and then parked in a secluded area.15 According to 

the defendant’s account, the driver pressured the defendant into engaging in 

sexual conduct, and when the defendant walked away the driver pursued 

him.16 At that point, the defendant shot him and covered the body.17 Then, he 

found the man’s car keys and drove home.18 In that case, the record did not 

contain any evidence regarding how the two men got into the car together or 

arrived at the secluded area where the body was later found. “Indeed, the 

record lack[ed] any evidence relating to the moment [the defendant] demanded 

or took control of the vehicle.”19 There was nothing from which the jury could 

infer the defendant’s intent at the moment that he took the car, much less his 

intent to kill or harm.20

In this case, Harris’s co-conspirators testified as to the entire series of 

events during which Harris obtained possession of the vehicles, including the 

moments when he and his co-conspirators took control of the vehicles. Based 

on the trial testimony, a reasonable jury could conclude that, in both instances, 

at the moment Harris and his co-conspirators were taking each vehicle, Harris 

12 420 F.3d 467 (5th Cir. 2005).

13 Id. at 478.

14 Id. at 469.

15 Id.

16 Id. at 469-70.

17 Id. at 470.

18 Id.

19 Id.

20 See id. at 471-74.

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would have seriously harmed or killed the owner if necessary to take control of 

the vehicle. Such an inference is supported by evidence showing that Harris 

was in possession of a firearm when he took the vehicles, he pointed a firearm 

at each victim, he encouraged his co-conspirator to use physical violence 

against a victim if the victim did not comply, and Harris himself made 

threatening comments towards each victim. Harris entered each home with 

the intention of taking a vehicle, and the evidence supports the inference that 

he would have done whatever necessary to accomplish his goal.

III

Harris argues that if we reverse his conviction as to either carjacking 

count for insufficient evidence, then the corresponding 18 U.S.C. § 924(c) 

counts (Counts Five and Nine) must also fall. Harris does not challenge any 

other aspect of the § 924(c) counts. Therefore, because there was sufficient 

evidence for the jury to convict Harris on both underlying carjacking counts, 

Harris’s convictions under Counts Five and Nine stand.

IV

Lastly, Harris contends his written judgment should be modified because 

it includes four “special conditions” that Harris contends were not orally 

pronounced during sentencing. We disagree.

A

We first consider whether each of the conditions Harris challenges are 

ripe for review.21 “Ripeness separates those matters that are premature 

because the injury is speculative and may never occur from those that are 

appropriate for judicial review.”22 “A claim is not ripe for review if ‘it rests 

upon contingent future events that may not occur as anticipated, or indeed 

21 United States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003).

22 Id. (quoting United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000)).

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may not occur at all.’”23 The inquiry “focuses on whether an injury that has 

not yet occurred is sufficiently likely to happen to justify judicial 

intervention.”24 A condition of supervised release is ripe for review if it is 

“patently mandatory—i.e., [its] imposition is ‘not contingent on future 

events.’”25 On the other hand, “[a]n appeal . . . is not ripe if it is ‘a matter of 

conjecture’ whether the requirements of the condition will take effect.”26

Each of the four conditions relate to the payment of restitution and 

monetary assessments. The district court ordered Harris to pay $880,233.29 

immediately, during the period of his confinement. Accordingly, so long as 

Harris complies with the district court’s order and pays the assessments in full

during his term of confinement, the conditions of supervised release pertaining 

to payment would not be applicable. In that sense, at least theoretically, the 

conditions of supervised release are contingent upon “future events that may 

not occur as anticipated.”27 However, based on the record in this case, it is not 

anticipated that that Harris will pay the full amount prior to his release from 

imprisonment. The district court found that Harris does not have the ability 

to pay interest on the restitution owed and waived interest on restitution. It 

is sufficiently likely that Harris will remain obligated to make payments 

toward his financial obligations when his supervised release begins, and the 

four conditions of supervised release will apply to enforce compliance with the 

financial obligations outlined in the judgment. Accordingly, the conditions are 

ripe for appellate review.

23 Id. (quoting Texas v. United States, 523 U.S. 296, 300 (1998)).

24 United States v. Magana, 837 F.3d 457, 459 (5th Cir. 2016) (quoting Pearson v. 

Holder, 624 F.3d 682, 684 (5th Cir. 2010)).

25 Id. (quoting Carmichael, 343 F.3d at 761).

26 Id. (quoting Carmichael, 343 F.3d at 761-62).

27 See Carmichael, 343 F.3d at 761.

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B

Turning to the merits of Harris’s arguments, we conclude Harris is not 

entitled to relief. Harris’s contentions are squarely governed by our recent en

banc opinion in United States v. Diggles.28 There, we held that a district court 

need orally pronounce only those supervised release conditions that, pursuant 

to 18 U.S.C. § 3583(d), are within its discretion to impose, and that no similar 

requirement exists for those conditions a district court is required to impose 

pursuant to the statute.29 Moreover, our opinion “established that the district 

court’s ‘oral adoption’ at sentencing of a document listing proposed supervision 

conditions satisfies the oral-pronouncement requirement and provides notice 

to the defendant, such that a failure to object will result in plain-error review 

on appeal.”30 Here, Harris did not object when the district court orally adopted

the conditions outlined in the PSR, which included the four conditions Harris 

now challenges. Consequently, plain-error review applies. Because the 

district court’s oral adoption of the conditions in the PSR satisfied the court’s

pronouncement obligations to the extent it was required to do so, Harris does 

“not clear even the first of the four plain-error hurdles for there was no error 

at all.”31 Harris’s requests for relief are accordingly denied.

* * *

For the foregoing reasons, we AFFIRM the judgment.

28 957 F.3d 551 (5th Cir. 2020) (en banc).

29 See id. at 559. 30 United States v. Gomez, ___F.3d ___, 2020 WL 2536615, at *4 (5th Cir. 2020) (citing 

Diggles, 957 F.3d at 559-60).

31 Diggles, 957 F.3d at 560; see United States v. Huor, 852 F.3d 392, 398 (5th Cir. 2017) 

(noting that plain-error review requires the appellant to show “(1) an error (2) that is clear 

or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, 

integrity, or public reputation of judicial proceedings” (quoting United States v. Mendoza–

Velasquez, 847 F.3d 209, 212 (5th Cir. 2017))).

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