* Circuit Judge of the Seventh Circuit, sitting by designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 99-60863

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHERON EDWARDS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________________________________________________ October 26, 2000

Before WOOD * , DAVIS, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue is whether the armed robbery of the keys to

a vehicle from its owner, only 15 feet from the vehicle,

constitutes taking the vehicle “from the person or presence” of the

victim, within the meaning of the federal carjacking statute, 18

U.S.C. § 2119. Sheron Edwards raises this issue, as well as

several others, in app ealing his conviction and sentence for

carjacking and use of a firearm during a crime of violence. We

AFFIRM

.

I.2

Early on 15 March 1999, at approximately 12:30 a.m., Kenneth

Burns returned to his residence in Starkville, Mississippi. After

parking his vehicle in the parking lot, he noticed someone — whom

he later identified as Edwards

— walking toward him. Burns exited

his vehicle, locked it, put the keys in his pocket, and started

walking to his apartment. Edwards approached Burns and asked for

directions to the Mississippi State University campus. (Burns knew

he was in trouble; the campus was only two blocks from Burns’

apartment.) After Burns gave Edwards the directions, Edwards

pulled a gun, held it to Burns’ chest, and demanded his k eys and

wallet.

Burns threw his keys on the ground. Edwards ordered Burns to

get on his knees. After Burns did so, Edwards struck Burns on the

back of the head with the gun, pulling the trigger simultaneously.

Believing he had been shot in the back of the head, because his

body was numb and blood was coming from his mouth, Burns fell facefirst to the ground, and pretended to be dead. Edwards took Burns’

wallet from his back pocket, and retrieved Burns’ keys from the

ground where Burns had thrown them.

Using the keys, Edwards drove away in Burns’ vehicle. Burns

testified at trial that the armed robbery took place on the

sidewalk off the parking lot, about 15 feet from where his vehicle

was parked

.3

Burns ran to a nearby house, and the police were summoned.

After Burns described the robbery to officers, they drove him to

the scene of an automobile accident. Burns’ vehicle had been

involved in the accident; and, at the scene, he identified Edwards

as his assailant.

Edwards was charged with carjacking, causing “serious bodily

injury”, in violation of 18 U.S.C. § 2119, and use of a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c). A

jury found Edwards guilty on both counts. Departing upward from

the Sen t encing Guidelines range, the district court sentenced

Edwards to consecutive 120-month sentences for each conviction.

II.

Edwards challenges the sufficiency of the evidence for his

carjacking conviction, claiming the Government failed to prove he

took the vehicle from Burns’ “person or presence” as required by §

2119. In addition, he contends: § 2119 is unconstitutionally

vague; the evidence was insufficient to prove Burns sustained

“serious bodily injury ” under 18 U.S.C. § 2119(2) (sentence

enhanced for serious bodily injury); and the district court erred

by denying his motion to suppress identification evidence, refusing

to order that his sentence run concurrently with any state sentence

to be imposed, and departing upward.

Only the first issue — § 2119’s “person or presence” element

— requires discussion. The remaining issues are without merit.4

The carjacking statute proscribes taking a motor vehicle “from

the person or pr esence of another b y force and violence or by

intimidation”. 18 U.S.C. § 2119 (emphasis added). Edwards

contends that the evidence is insufficient to prove he took Burns’

vehicle from his “person or presence ... by force and violence or

by intimidation”, because Burns was not in the vehicle, and he only

took Burns’ keys from his “person or presence”.

Edwards presented this issue in pre- and post-verdict motions

for judgment of acquittal. Accordingly, in considering his

sufficiency challenge, we review the evidence in the light most

favorable to the verdict, to determine whether any reasonable trier

of fact could have found that the evidence established guilt beyond

a reasonable doubt. E .g.

, United States v. Martinez

, 975 F.2d 159,

160-61 (5th Cir. 1992), c ert. denied

, 507 U.S. 943 (1993). Of

particular importance to the case at hand is that “[a]ll reasonable

inferences from the evidence must be construed in favor of the jury

verdict”. Id. at 161.

Our court has not addressed § 2119’s “person or presence”

element. “Presence” is not defined by the statute. No authority

need be cited for the requirement to apply the plain meaning of the

words used in a statute. But, the dictionary definition of

“presence” does not provide the requisite certainty. W E BSTER ’ S T HIRD

N EW I NTERNATIONAL D ICTIONARY 1793 (1986) defines “presence” as “the part5

of space within one’s ken, call, or influence: the vicinity of or

the area immediately near one”.

It is quite arguable that, under this definition, Burns’

vehicle, being only 15 feet (approximately five or six steps) away

from him, was in his “presence” because it was, in a relative

sense, within his “influence” or in his “vicinity”. More

certainty, however, is required.

An alternative source for construing the statute, legislative

history, does not address this issue. U nited States v. Kimble

, 178

F.3d 1163, 1166-67 (11th Cir. 1999), cert. denied

,

___ U.S.

___,

120 S. Ct. 805, 806 (2000). In addition to the holding by the

E leventh Circuit in K imble

, discussed infra

, the issue has been

addressed by two other circuits.

In United States v. Lake , 150 F.3d 269 (3d Cir. 1998), cert.

denied

, 525 U.S. 1088 (1999), the Third Circuit rejected a

contention similar to Edwards’. Lake took the victim’s keys at

gunpoint; ran up a steep path to the road, where the victim’s car

was parked; and drove it away. I d

. at 270-72. The victim pursued

Lake, but did not reach him in time to prevent the vehicle theft.

Id . at 272-73.

Lake claimed the evidence was insufficient to prov e he took

the vehicle from the victim’s “person or presence”, because, when

he took her keys, the victim could neither see nor touch her

vehicle. I d

. at 272. The court observed: “The carjacking6

statute’s requirement that the vehicle be taken ‘from the person or

presence of the victim’ ‘tracks the language used in other federal

robbery statutes’”. Id . at 272 (citing 18 U.S.C. §§ 2111, 2113,

2118; internal quotation marks and other citations omitted).

Under thos e statutes, “‘property is in the p resence of a

person if it is so within his reach, observation or control, that

he could if not overcome by violence or prevented by fear , retain

his possession of it’”. I d

. at 272 (emphasis added) (quoting

United States v. Burns

, 701 F.2d 840, 843 (9th Cir.) (affirming

conviction for violation of 18 U.S.C. § 2111, proscribing robbery

committed within territorial jurisdiction of United States, where

victim’s car was taken after he was robbed of his keys at gunpoint

while inside a nearby store), cert. denied

, 462 U.S. 1137 (1983));

see also Norris v. Uni ted States , 152 F.2d 808, 809 (5th Cir.)

(“Robbery in its usual and ordinary sense, and as used in [former

18 U. S.C. § 99, now 18 U.S.C. § 2112, proscribing robbery of

personal property belonging to the United States] means the

felonious taking of property from the person of another by violence

or by putting him in fear . A felonious taking in his presence is

a taking from the person when it is done with violence and against

his will .” (emphasis added)), c ert. denied

, 328 U.S. 850 (1946).

Applying the defini tion used for federal robbery statutes, the

Third Circuit held: there was evidence from which a r ational jury

could have inferred that, because she was f earful, the victim7

hesitated before pursuing Lake; and, had she not so hesitated, she

could have prevented the theft of her car. 150 F.3d at 273.

Chief Judge Becker dissented, id

. at 275-76, stating he “would

join an opi nion upholding Lake’s conviction for ‘keyjacking,’ or

for both key robbery and grand larceny”, but could not agree Lake

had taken the vehicle from the victim’s “person or presence”. I d

.

at 275. He rejected the majority’s view of “person or presence”,

maintaining it was cont rary to the plain meaning of “presence”.

Id

. (noting the ab ove-discussed dictionary definition: “the

vicinity of or the area immediately near one”). He also disagreed

with the majority’s emphasis on what the victim might have done,

had she not been afraid. I d

. at 275-76. He reasoned that, if the

relevant inquiry was what the victim might have done but for fear,

the fact that her vehicle was nearby was irrelevant to the

majority’s approach. Id . at 276.

In Kimble

, the Eleventh Circuit adopted th e Third Circuit’s

definition of “person or pr esence”. While robbing a restaurant,

defendants held the manager at gunpoint and demanded the keys to

his vehicle, which was parked outside the restaurant. 178 F.3d at

1164. They then used the vehicle to escape. Id

.

The Eleventh Circuit held that the victim w as sufficiently

near his vehicle when the defendants robbed him of it to satisfy

the “person or presence” requirement, because, had the victim “not

been in fear for his safety, he could have re ached the car and8

prevented its taking”. Id . at 1168. The court rejected the view

in the Lake dissent that the vehicle’s proximity to the victim was

irrelevant, stating:

[B]ecause the statute explicitly requires the

car to be within the victim’s ‘person or

presence’ and presence requires an unspecified

but nevertheless undeniable proximity

,

nearness to the vehicle is a relevant

criteri on under § 2119 and must be evaluated

when determining guilt or innocence.

Id . at 1168 n.1 (emphasis added).

The Tenth Circuit has also applied the same definition of

“person or presence” to § 2119. S ee United States v. Moore

, 198

F.3d 793, 796-97 (10th Cir. 1999), cert. denied

,

___ U.S.

___, 120

S. Ct. 1693 (2000). The court rejected defendant’s challenge to

the sufficiency of the evidence, h olding that defendant took the

vehicle from the victim’s “person or presence” when he took the

keys to her vehicle after tying her up inside a bank during a

robbery, and left the scene in her vehicle, which was parked

outside the bank. Id . at 794-95, 797. The court stated:

A reasonable jury could have found that the

victim ... could have prevented the taking of

her vehicle had she not b een fearful of the

defendant. The keys to the vehicle were in

[the victim’s] immediate control and had she

not been u nder the control 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.

Id . at 797 (emphasis added).9

We agree with the Eleventh Circuit that “this interpretation

of ‘person or presence’ from the robbery statutes co nforms with

both the language and the purpose of § 2119”. K imble

, 178 F.3d at

1167. As that court noted, enactment of the carjacking statute

followed “a rash of car robberies where the victims were either

forced from their cars or robbed just prior to getting into the

vehicles”. I d

. “Under this interpretation, the victim must be

sufficiently near to the vehicle for it to be within reach,

inspection, or control and, abs ent threat or intimidation, to be

able to maintain control of it”. I d

. at 1168. “For a car to be

within one’s reach or control, it must be accessible.” Id

.

A pplying this interpretation to the facts at hand, the

evidence was sufficient to support a reasonable jury finding that

Edwards took Burns’ vehicle from his “person or presence

... by

force and violence”. S ee 18 U.S.C. § 2119. Burns, who had just

parked and exited his vehicle, was only 15 feet away from it when

Edwards forcibly took the vehicle’s keys from the ground where

Burns had thrown them at the inception of the armed robbery. After

having been struck on the hea d by Edwards, who simultaneously

discharged his gun, causing Burns to believe he had been shot,

Burns pretended to be dead. The jury reasonably could have

inferred that, had Burns not bee n in fear for his safety (a most

understandable reacti on to the circumstances), he could have

quickly reached his vehicle and prevented Edwards from taking it.10 III.

For the foregoing reasons, the judgment is

AFFIRMED.