*Of the Federal Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 04-1099

UNITED STATES,

Appellee,

v.

STEPHEN SAVARESE,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George C. Singal, U.S. District Judge]

Before

Torruella, Dyk* and Howard,

Circuit Judges.

Robert J. Ruffner with whom Vincent Kantz & Ruffner was

on brief for defendant-appellant.

F. Mark Terison with whom Paula D. Silsby was on brief

for appellee.

September 22, 2004
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DYK, Circuit Judge. The central question here concerns

the interpretation of section 2B3.1 of the U.S. Sentencing

Guidelines, which provides for a two-level enhancement of a

defendant’s offense level if the defendant engaged in carjacking.

U.S. Sentencing Guidelines Manual § 2B3.1(b)(5)(2003). We hold

that the district court’s enhancement of the defendant’s sentence

was not contrary to the Guidelines and that there was no plain

error in the district court’s failure to submit the fact issues

concerning enhancement to a jury.

I

The guidelines provide: “If the [robbery] offense

involved carjacking, increase by 2 levels.” Id. § 2B3.1(b)(5).

The Guidelines further define “carjacking” as “the taking or

attempted taking of a motor vehicle from the person or presence of

another by force and violence or by intimidation.” Id. § 2B3.1,

cmt. n.1. This provision is similar to the statute making

carjacking a criminal offense. See 18 U.S.C. § 2119 (2000). That

statute provides criminal punishments for “[w]hoever, 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.” Id. (emphasis added). Despite the minor differences in

language, we agree with the Sixth Circuit that the “person or
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presence” requirement of the Guidelines provision should be

interpreted to be the same as the “person or presence” requirement

of the criminal statute. United States v. Boucha, 236 F.3d 768,

775 (6th Cir. 2001); see also United States v. Bates, 213 F.3d

1336, 1340 (11th Cir. 2000) (reserving the question whether the

guidelines, like the carjacking statute, include a specific intent

requirement). The question thus becomes whether, on the facts of

this case, the “person or presence” requirement of the carjacking

statute has been satisfied.

II

A

At the sentencing hearing, the parties agreed that the

carjacking enhancement was to be based entirely on the facts in the

presentence report. Accordingly, the following facts are taken

from the presentence report. At approximately 8:30 pm on April 13,

2003, the appellant, Stephen Savarese, and an accomplice traveled

to the property of Frank and Beverly Shippee in Shapleigh, Maine,

on which the Shippees’ home and the Fort Ridge Trading Post, a shop

the Shippees operated, were located. Intending to steal firearms

from the Trading Post, Savarese and his accomplice pretended that

their car had had mechanical trouble. They forced their way into

the Shippees’ home when Mr. Shippee retrieved a cordless telephone

for them, attacking Mr. Shippee with a stick and threatening the

Shippees with a pistol and a shotgun. Once the Shippees had been
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subdued, the assailants demanded the combination to the lock on the

door of the Trading Post. While they pointed guns at Mr. Shippee,

they also demanded and took the keys to the Shippees’ SUV, which

was parked in the driveway. Unable to gain entry to the Trading

Post with the combination, Savarese broke a window in the door and

entered the shop. He returned to the Shippees’ home with duct tape

from the shop, with which the assailants bound the Shippees’ hands

and feet. Savarese then guarded the Shippees while his accomplice

stole twenty-nine guns from the Trading Post and loaded them into

the Shippees’ SUV, which they then drove to Savarese’s car, parked

nearby.

An eyewitness was able to identify Savarese’s car as

having been near the Trading Post on the night of April 13, and

Savarese was arrested on April 18. He subsequently pled guilty to

charges of (1) interference with commerce by robbery in violation

of 18 U.S.C. § 1951(a) and (b)(1); (2) using and brandishing a

firearm during and in relation to a crime of violence in violation

of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) theft of firearms from a

federally licensed firearms dealer in violation of 18 U.S.C.

§ 922(u) and aiding and abetting such a theft in violation of 18

U.S.C. § 2.

Savarese was sentenced on December 15, 2003. With

respect to the second count, a minimum sentence of seven years,

consecutive to Savarese’s other sentences, was required. See 18
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U.S.C. § 924(c)(1)(A)(ii). The first and third counts were grouped

together pursuant to section 3D1.2(b) of the Guidelines. The base

offense level for the first count was 20, pursuant to section 2B3.1

of the Guidelines. The district court applied four enhancements,

each of two levels, under that section because (1) a threat of

death was made (§ 2B3.1(b)(2)(F)); (2) Mr. Shippee sustained bodily

injury (§ 2B3.1(b)(3)); (3) the Shippees were physically restrained

to facilitate the commission of the offense (§ 2B3.1(b)(4)); and

(4) the offense involved carjacking (§ 2B3.1(b)(5)). In addition,

the district court applied a one-level enhancement pursuant to

section 2B3.1(b)(6) of the Guidelines because firearms were taken,

for an adjusted offense level of 29.

Because the offense level for the first count was greater

than that for the third count, it became the offense level for the

grouped offenses. The district court reduced the offense level by

three levels to 26 because Savarese accepted responsibility for the

offense, pursuant to section 3E1.1 of the Guidelines. Savarese was

assigned to Criminal History Category I because he had no prior

criminal history, resulting in a Guideline range of 63-78 months.

The district court sentenced the defendant to 63 months on each of

the first and third counts, to be served concurrent with each

other, and 84 months on the second count, to be served

consecutively to each of the first and third counts. The district
2 The defendant also requested a downward departure from

the Guidelines sentence, which the district court declined to

grant, and objected to the district court’s one-level enhancement

pursuant to section 2B3.1(b)(6) of the Guidelines because the

object of the theft was firearms. Neither of these matters is at

issue in this appeal.

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court also imposed a three-year supervised release term, a

mandatory assessment of $300, and restitution of $1,948.

At the sentencing hearing, Savarese objected to the

district court’s carjacking enhancement, asserting that the

enhancement provision did not apply to him because he took the keys

from the Shippees inside the house while the SUV remained outside

the house in the Shippees’ driveway.2 The district court relied on

the Sixth Circuit’s interpretation in Boucha of “presence” for

purposes of the carjacking enhancement, stating:

I’ve read the case law, scarce as it is

on this issue. The case that seems to come

the closest is [Boucha]. I think the court in

that case probably states the law correctly,

but I’m not sure the interpretation is a

reasonable one.

. . . I do believe that the law in this

circuit would be that the facts as set forth

in this case where a person’s car is right

outside their house, the keys are demanded and

received by way of force, and the car is

therefore taken from right outside the house

comes within what Congress intended in . . .

[the] carjacking statute and the enhancement

as applied in the sentencing guidelines.

So I think the enhancement applies, and

I’m severely troubled by the fact that it does

apply.

(Tr. of Sentencing Hr’g at 48-49.)
3 There is no meaningful legislative history with regard to

the meaning of “presence” in the statute. See generally H.R. Rep.

No. 102-851(I)-(III) (1992), reprinted in 1992 U.S.C.C.A.N. 2829.

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B

We review the “interpretation and application of the

United States Sentencing Guidelines” by the district court without

deference, and we review the district court’s findings of fact for

clear error. United States v. Caldwell, 358 F.3d 138, 142 (1st

Cir. 2004).

The issue under the carjacking statute (and hence under

the Guidelines) is whether the victims’ SUV was taken from the

“presence” of the victims when the defendant forced them to turn

over the keys. The government argues that, under the Guidelines,

merely “[f]orcibly taking the keys to [a] vehicle at gunpoint” is

sufficient for the carjacking enhancement to apply. (Br. of

Appellee at 19.) This interpretation ignores the fact that the

vehicle itself must be taken from the presence of the victim and

offers no limiting principle, encompassing the theft of keys to a

vehicle located miles away in distant parts of the city, or even in

a different city. We look to general purpose dictionaries from the

time of the statute’s enactment to determine the meaning of

statutory language. See, e.g., Carey v. Saffold, 536 U.S. 214,

219-20 (2002); see also Textron Inc. v. C.I.R., 336 F.3d 26, 32

(1st Cir. 2003).

3 In contrast to the government’s interpretation,

“presence” is defined as “the part of space within one’s ken, call,
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or influence : the vicinity of or the area immediately near one :

the place in front of or around a person.” Webster’s Third New

International Dictionary 1793 (1969); see also Webster’s Third New

International Dictionary 1793 (1993) (same). In interpreting the

carjacking statute, this court has looked to the common law meaning

of “presence.” United States v. Perez-Garcia, 56 F.3d 1, 3 (1st

Cir. 1995) (“Courts generally agree that taking from a victim’s

person is understood to include the common law conception of taking

from a victim’s presence.”). Thus, at a minimum, proximity to the

vehicle and the ability to influence the space encompassing the

vehicle is required.

While this court has not previously addressed this issue,

the authority from other circuits is basically consistent with this

definition. In interpreting a robbery statute that also contained

a “person or presence” requirement, the Ninth Circuit held that

“property is in the presence of a person if it is so within his

reach, inspection, observation or control, that he could if not

overcome by violence or prevented by fear, retain his possession of

it.” United States v. Burns, 701 F.2d 840, 843 (9th Cir. 1983)

(internal quotation marks omitted).

Relying on Burns, the Sixth Circuit in Boucha held that,

for purposes of the carjacking statute:

[P]roperty is in the presence of a person if

it is so within his reach, observation and

control that he could, if not overcome by

violence or prevented by fear, retain
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possession of it. Presence, thus defined,

requires a significant degree of nearness

without mandating that the property be within

easy touch; it must be accessible.

Boucha, 236 F.3d at 775. Other circuits have agreed. See United

States v. Edwards, 231 F.3d 933, 937 (5th Cir. 2000); United States

v. Moore, 198 F.3d 793, 797 (10th Cir. 1999); United States v.

Kimble, 178 F.3d 1163, 1168 (11th Cir. 1999); United States v.

Lake, 150 F.3d 269, 272 (3d Cir. 1998). In Boucha, the district

court had enhanced Boucha’s sentence for carjacking when, during

each of a series of bank robberies, Boucha had demanded keys to a

bank employee’s car parked in the bank parking lot, stolen the car,

and driven it to a nearby location where his car was parked.

Boucha, 236 F.3d at 770. The Sixth Circuit held that this

enhancement was proper:

In this case, the Court finds that the

district court did not err in giving a

two-level enhancement for carjacking. Boucha

brandished weapons, took keys and eventually

stole cars from frightened victims. The cars

were not miles away. Rather, . . . Boucha

stole from victims who parked their cars just

outside their place of employment. The cars

were accessible. Were it not for Boucha’s

actions and his use of fear and intimidation,

the victims could have maintained control of

their vehicles.

Id. at 776 (footnote omitted).

In addition, several other circuits have held that the

presence requirement of the carjacking statute was satisfied when

the victim or victims were inside a building and the stolen vehicle
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was parked outside the building. See, e.g., United States v.

Lopez, 271 F.3d 472, 486 (3d Cir. 2001) (holding that the presence

requirement of the carjacking statute was satisfied when the

victims were attacked and beaten inside their house and keys to a

van parked outside the house were taken); Moore, 198 F.3d at 797

(holding that the presence requirement of the carjacking statute

was satisfied when keys were taken from a bank employee whose car

was parked in a parking lot outside the bank); Kimble, 178 F.3d at

1168 (holding that the presence requirement of the carjacking

statute was satisfied when keys were taken from a restaurant

employee whose car was parked outside the restaurant); see also

Burns, 701 F.2d at 843 (holding that the presence requirement of 18

U.S.C. § 2111 was satisfied when the assailant threatened the

victim at gunpoint inside a smoke shop, asked for the victim’s car

keys, and, when told the keys were in victim’s car outside the

shop, took the car).

Nevertheless, these cases make clear that the presence

requirement is not boundless. In the carjacking context, courts

have required the victim to have both a degree of physical

proximity to the vehicle and an ability to control or immediately

obtain access to the vehicle. See Boucha, 236 F.3d at 776 (“The

cars were not miles away. . . . The cars were accessible.”);

Moore, 198 F.3d at 797 (“The keys to the vehicle were in [the

victim’s] immediate control and had she not been under the control
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of the defendant and fearful for her life, she could have easily

walked out the door to the parking lot and driven away in her car,

thus preventing the defendant from taking it.”); Kimble, 178 F.3d

at 1168 (“[The victim’s] car was not several miles away, but parked

right outside the restaurant. Had [the victim] not been in fear

for his safety, he could have reached the car and prevented its

taking.”). In these cases, the victims’ vehicles were taken under

circumstances such that, although the victims could not see or

touch their vehicles, they were close to the vehicles and possessed

a degree of control over the space in which the vehicles were

located. The statute thus applies only in a situation where the

vehicle remained in an area proximate to the victim and the victim

retained some degree of control over the space in which the vehicle

was parked.

In this case, the Shippees were not inside or immediately

next to their SUV when Savarese and his accomplice took the keys

from them. However, the vehicle remained proximate to them in the

driveway just outside their home, and the Shippees retained an

ability to control the area in which the vehicle was located. They

were induced to relinquish their keys only as a result of the

assailants’ threats and acts of violence. Thus, the SUV was

sufficiently proximate to them and within their control that, as in

Boucha, “[w]ere it not for [the assailants’] actions and [their]

use of fear and intimidation, the victims could have maintained
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control of their vehicles.” 236 F.3d at 776. Under such

circumstances, we agree with the Sixth Circuit in Boucha that “the

district court did not err in giving a two-level enhancement for

carjacking.” Id.

III

A final issue relates to the application of the Supreme

Court’s decision in Blakely v. Washington, 542 U.S. ___, 124 S. Ct.

2531 (2004), to the U.S. Sentencing Guidelines. In Blakely, the

Court held that a sentence that was enhanced pursuant to the

Washington state sentencing guidelines violated the rule of

Apprendi v. New Jersey, 530 U.S. 466 (2000), that, “[o]ther than

the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”

Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490).

The state argued that the enhancement of Blakely’s sentence did not

violate Apprendi “because the relevant ‘statutory maximum’ is not

53 months [as provided by the state sentencing guidelines], but the

10-year maximum for class B felonies [as provided by the state

statute].” Id. at 2537. However, the Court held:

Our precedents make clear . . . that the

“statutory maximum” for Apprendi purposes is

the maximum sentence a judge may impose solely

on the basis of the facts reflected in the

jury verdict or admitted by the defendant. In

other words, the relevant “statutory maximum”

is not the maximum sentence a judge may impose

after finding additional facts, but the
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maximum he may impose without any additional

findings.

Id. (citations omitted) (emphasis in original).

Although the Court expressly stated that “[t]he Federal

Guidelines are not before us, and we express no opinion on them,”

id. at 2538 n.9, the appellant urges that the rationale of Blakely

applies to the Federal Guidelines. The Supreme Court has recently

granted certiorari in two cases to resolve this issue. United

States v. Booker, 542 U.S. ___, 73 U.S.L.W. 3073, 3074 (Aug. 2,

2004); United States v. Fanfan, 542 U.S. ___, 73 U.S.L.W. 3073,

3074 (Aug. 2, 2004). However, we conclude here that, even if

Blakely is held to apply to the Federal Guidelines, there is no

basis for reversal in this case.

The appellant did not raise the jury trial issue in the

district court, nor did he request a jury trial with respect to

factual issues relating to the sentencing. Thus, we review the

district court’s enhancement of Savarese’s sentence for plain

error. See Fed. R. Crim. P. 52(b) (“A plain error that affects

substantial rights may be considered even though it was not brought

to the court’s attention.”); see also United States v. Cotton, 535

U.S. 625, 631 (2002) (holding that an Apprendi violation can be

considered under plain error analysis); United States v. Duncan,

___ F.3d ___, ___, 2004 WL 1838020, at *2 (11th Cir. Aug. 18, 2004)

(“[B]ecause Duncan failed to raise a Sixth Amendment argument

below, our review is limited to determining whether setting the
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base offense level based upon the sentencing judge’s finding of

cocaine base constitutes plain error in light of the Supreme

Court’s holding in Blakely.”); United States v. Ameline, 376 F.3d

967, 978 (9th Cir. 2004) (“Because Ameline did not object to his

sentence on the grounds that the Sentencing Guidelines or the

procedures used to determine the material sentencing facts were

unconstitutional under Apprendi, or on the ground that the material

sentencing facts were not alleged in the indictment, submitted to

the jury, or proved beyond a reasonable doubt, we review for plain

error.”); United States v. Donnelly, 370 F.3d 87, 92 (1st Cir.

2004) (reviewing a sentencing enhancement for plain error where the

defendant failed to address the second element of the enhancement

in his objection).

In determining whether an error is plain, the court

considers four factors:

[B]efore an appellate court can correct an

error not raised at trial, there must be (1)

error, (2) that is plain, and (3) that affects

substantial rights. If all three conditions

are met, an appellate court may then exercise

its discretion to notice a forfeited error,

but only if (4) the error seriously affects

the fairness, integrity, or public reputation

of judicial proceedings.

Cotton, 535 U.S. at 631-32 (quoting Johnson v. United States, 520

U.S. 461, 466-67 (1997)) (internal quotation marks, alterations,

and citation omitted). We conclude that at least the last of these

four requirements has not been satisfied.
4 The district court increased the defendant’s base offense

level by two levels for each of these findings, pursuant to section

2B3.1(b).

5 Savarese’s counsel stated:

What I want to put on the record, I believe

the government agrees with [sic] is that [Mr.

Shippee’s] statement today was for the purpose

of a victim impact statement. . . . [T]he

government isn’t or wouldn’t be arguing that

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The appellant contends that the district court’s

enhancement of his sentence based on the following four findings by

the district court violates Blakely: (1) “that a threat of death

was made,” pursuant to section 2B3.1(b)(2)(F) of the Guidelines;

(2) “that a victim sustained bodily injury,” pursuant to section

2B3.1(b)(3); (3) “that the Shippees were physically restrained to

facilitate the commission of the offense,” pursuant to section

2B3.1(b)(4); and (4) “that the offense involved ‘carjacking,’”

pursuant to section 2B3.1(b)(5).4 (Supp. Br. of Def.-Appellant at

11.)

At the sentencing hearing, the defendant objected only to

the carjacking enhancement, not the other three enhancements now

challenged on appeal. The defendant made no claim that there was

a factual dispute as to any of these issues. In a sidebar

conference, the parties agreed that the carjacking enhancement was

to be based entirely on the facts in the presentence report and

that Mr. Shippee’s statement at the sentencing hearing was solely

for the purpose of a victim impact statement.5 Thus, the defendant
would be a basis for a factual determination

on some of the issues that we argued about

today.

(Tr. of Sent. Hearing at 45.) The government agreed, stating that

“the factual predicate for the court’s guideline determination is

what’s in the presentence report.” (Id.)

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did not dispute the factual basis underlying any of the

enhancements. Under the Supreme Court’s decision in Johnson, we

conclude that this forecloses a finding of plain error. 

In Johnson, the issue was whether the determination of

whether a false statement was material should have been submitted

to the jury, rather than the judge. 520 U.S. at 465. As here, the

defendant did not object to the judge’s finding of that fact,

although a subsequent Supreme Court decision required that the fact

be found by a jury. Id. In Johnson, the Supreme Court held that

the trial court’s error “was not ‘plain error’ of the sort which an

appellate court may notice under Federal Rule of Criminal Procedure

52(b)” because it did not satisfy the fourth requirement of the

plain error test. Id. at 465, 469-70. The Court noted that “the

evidence supporting materiality was overwhelming” and that

“[m]ateriality was essentially uncontroverted at trial and has

remained so on appeal.” Id. at 470 (internal quotation marks and

footnote omitted). Because “petitioner has presented no plausible

argument that the false statement under oath for which she was

convicted . . . was somehow not material to the grand jury
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investigation,” the Court held that “there is no basis for

concluding that the error ‘seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings.’” Id.

(quoting United States v. Olano, 507 U.S. 725, 736 (1993))

(alteration in original).

As in Johnson, the appellant here did not, in the

district court, challenge the facts that he argues should have been

submitted to a jury. That is enough to bring this case within

Johnson and to defeat the claim of plain error, whether or not the

defendant here, unlike the defendant in Johnson, has argued the

existence of a factual dispute now that the case is on appeal. In

this case, as in Johnson, “there is no basis for concluding that

the [failure to submit facts to a jury] ‘seriously affect[ed] the

fairness, integrity or public reputation of judicial proceedings.’”

520 U.S. at 470 (quoting Olano, 507 U.S. at 736) (second alteration

in original). Thus, there was no plain error.

IV

We hold that the district court’s enhancement of the

defendant’s sentence for carjacking was proper under section 2B3.1

of the Guidelines. In addition, the district court’s error under

Blakely, if any, in finding the facts underlying the enhancements

of the defendant’s sentence was not plain error. Accordingly, we

affirm.

It is so ordered.