UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4014

RICKY VINCENT PENDLETON,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-96-1)

Submitted: September 30, 1997

Decided: November 18, 1997

Before HALL, WILKINS, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen D. Herndon, Wheeling, West Virginia, for Appellant. William D. Wilmoth, United States Attorney, Paul T. Camilletti, Assistant United States Attorney, Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Ricky Vincent Pendleton appeals from his conviction and sentence

imposed for carjacking in violation of 18 U.S.C.A.§ 2119 (West

1994 & Supp. 1997). We affirm.

Pendleton contends that the district court erred in admitting evidence of his companion's flight in violation of the hearsay rule. We

conclude that this flight to escape prosecution does not constitute a

statement sufficient to invoke the hearsay rule. Further, even if this

action did constitute a statement and its admission therefore violated

the hearsay rule, we believe that such evidence was merely cumulative of the evidence of Pendleton's own flight, and therefore its

admission constituted no more than harmless error.

Pendleton next asserts that there was insufficient evidence of interstate transportation to satisfy the jurisdictional requirement of the carjacking statute. The evidence adduced at trial demonstrated that the

victim of the offense had driven the car out of state on several occasions. Additionally, the district court took judicial notice of the fact

that no cars are manufactured in West Virginia and thus any car

which was found within the state must have been transported through

interstate commerce. We agree that these facts are sufficient to satisfy

the statutory requirement and therefore find no error. See United

States v. Newton, 65 F.3d 810, 811-12 (9th Cir. 1995) (finding two

out of state recreational trips sufficient to satisfy interstate commerce

requirement), cert. denied, 116 S. Ct. 965 (1996).

Next, Pendleton argues that the district court committed impermissible double counting when it enhanced his sentence for both carjacking under U.S. Sentencing Guidelines Manual§ 2B3.1(b)(1)(B)

(1996), and making an express threat of death under U.S.S.G.

§ 2B3.1(b)(2)(F). We disagree. There is a sufficient degree of difference between the use of force and violence or intimidation, as

contemplated by the carjacking statute and enhancement, and making

an express threat of death, as contemplated by U.S.S.G.

§ 2B3.1(b)(2)(F). Pendleton's conduct, which consisted of the violent

beating of his victim, returning his victim to the car, shouting at him

when he regained consciousness, and finally dumping him in a remote

location, went beyond the base conduct encompassed by U.S.S.G.

§ 2B3.1(b)(1)(B), and satisfied the requirement for enhancement

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under U.S.S.G. § 2B3.1(b)(2)(F). See United States v. Hudson, 53

F.3d 744, 749 (6th Cir.) (addressing whether enhancement for brandishing firearm constitutes double counting where possession was element of offense--armed carjacking--and stating that "a carjacking

accomplished with a gun hidden in a pocket, and carjacking accomplished by pointing a shotgun at a victim for some period of time and

threatening to `blow him in two,' . . . are qualitatively different . . .

[and] the sentences for them may properly reflect that difference"),

cert. denied, 116 S. Ct. 235 (1995); see also U.S.S.G. § 2B3.1, comment. (n.6) (the "express threat of death" enhancement is intended to

provide an increased offense level when the offender engages in "conduct that would instill in a person, who is a victim of the offense, significantly greater fear that than necessary to constitute an element of

the offense"). We therefore find no error.

Finally, Pendleton argues that his receipt of an enhancement for

express threat of death under U.S.S.G. § 2B3.1(b)(2)(F) and for infliction of permanent or life threatening bodily injury under U.S.S.G.

§ 2B3.1(b)(3)(C) constitutes impermissible double counting because

they were both based upon the same conduct. Because Pendleton

raises this argument for the first time on appeal, we review for plain

error. See United States v. Olano, 507 U.S. 725, 732 (1993). This

Court has held that the same conduct may be used for enhancements

under more than one guideline unless such double counting is

expressly forbidden by the guidelines. See United States v. Crawford,

18 F.3d 1173, 1179-80 (4th Cir.), cert. denied , 513 U.S. 860 (1994).

There is no express prohibition in the guidelines against making an

enhancement for bodily injury under § 2B3.1(b)(3)(C) and an adjustment for an express threat of death under § 2B3.1(b)(2)(F). We therefore find that application of both enhancements does not constitute

plain error.

Accordingly, we affirm Pendleton's conviction and sentence. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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