1 Pursuant to 5 TH C IR

. R. 47.5, the Court has determined th a t

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-50383

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RUBY JEAN TYRONE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(W-96-CR-44-ALL)

May 10, 1999

Before JONES, DUHÉ and BARKSDALE, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge: 1

A jury convicted Ruby Jean Tyrone (“Defendant”) of carjacking

pursuant to 18 U.S.C.A. § 2119 (West Supp. 1999), receiving and

concealing a stolen firearm pursuant to 18 U.S.C.A. § 922(j) (West

Supp. 1999), and using a firearm in connection with a crime of

violence pursuant to 18 U.S.C.A. § 924(a)(2) & (c) (West Supp.

1999). On appeal, she raises five issues: (1) § 2119 requires

proof of an unconditional intent to cause death or serious bodily

harm, and no jury could reasonably infer unconditional intent from

the facts of the case. (2) The district court failed to instruct

the jury concerning § 2119's unconditional intent requirement. (3)2

Even, if § 2119 requires only conditional intent, there was

insufficient evidence to support a jury’s finding of that intent.

(4) Because we should reverse the predicate carjacking conviction,

we should also reverse her conviction for using a firearm in the

commission of a crime of violence. (5) Her conviction for

receiving or concealing a stolen firearm should be reversed because

§§ 922 & 924 are unconstitutionally beyond Congress’ Commerce

Clause power. We disagree and affirm.

BACKGROUND

This case stems from the repossession of a car. Chris

Blakely, (“Blakely”) an employee of General Mot o rs Acceptance

Corporation (“GMAC”), repossessed Babylin Crockett’s (“Crockett”)

car at Crockett’s request, because Crockett realized she was unable

to make the payments. At the time, Crockett lived with Tyrone,

because she was dating Tyrone’s son. After the car’s repossession,

Tyrone repeatedly telephoned GMAC complaining that she was

receiving notices indicating that she owed money to GMAC. When

GMAC informed Tyrone that any correspondence sent to her was an

error, she requested that GMAC send someone to her home to examine

the notices, insisting that she speak with a field representative

face-to-face. In response to Tyrone’s request, Blakely made an

appointment to visit Tyrone at her home.

Blakely drove to Tyrone’s home where she was met by Tyrone who

identified herself as “Robbie”. “Robbie” told Blakely that Tyrone

was at work, and that they needed to go to an attorney’s office to

view the documents sent by GMAC.2 The meaning of Tyrone’s statement is unclear. One option is

that she meant “I’m going to do to you what [you] did to Ruby.” In

other words, Tyrone was going to take Blakely’s car just as Blakely

had taken a car from Ruby Tyrone’s house.

3 Tyrone rode in Blakely’s car giving directions to the

attorney’s office. Unable to find the office, Blakely stopped in

a park and telephoned her office on a cell phone to f ind the

address. Tyrone produced a handgun from her purse. Blakely

testified that Tyrone was about to aim th e gun at her when she

grabbed Tyrone’s hand and the gun fearing for her life. Tyrone

told Blakely, “I’m going to do to you what I did to Ruby.” 2 During

the struggle over the gun, Tyrone pulled the keys out of the car’s

ignition and hit Blakely in the head with the barrel of the gun.

Blakely managed to escape from the car and run towards a man

working nearby. Tyrone drove away in Blakely’s car. The workman

contacted the police, who discovered Blakely’s car abandoned.

The police arrested Tyrone shortly after the incident, and

Blakely identified her as the assailant. The police found a gun in

Tyrone’s purse which was later discovered to have been stolen from

the residence of Brian Pardo where Tyrone worked during the prior

week. Pardo purchased the gun in Alabama, and it was manufactured

in Massachusetts. A jury convicted Tyrone of the three counts

discussed above, and she appeals.

DISCUSSION

I. Carjacking

A. Intent

T yrone contends that conditional intent, i.e. the intent to4

cause death or serious bodily harm only if the victim refuses to

relinquish his car, is insufficient to satisfy § 2119, relying on

United States v. Randolph

, 93 F.3d 656, 665 (9th Cir. 1996)

(holding “[t]he mere conditional intent to harm a victim if she

resists is simply not enough to satisfy § 2119's new specific

intent requirement.”) Circuits were split concerning this issue.

See United States v. Williams , 136 F.3d 547, 551 (8th Cir. 1997);

United States v. Romero

, 122 F.3d 1334, 1339 (10th Cir. 1997);

United States v. Arnold

, 126 F.3d 82, 89 (2nd Cir. 1997); U nited

States v. Anderson , 108 F.3d 478, 485 (3rd Cir. 1996). However,

the Supreme Court recently resolv ed this split, holding that the

intent requirement 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.”

Holloway v. United States

, 119 S. Ct. 966, 972 (1999). As a

r esult, Tyrone’s arguments that the government failed to prove

intent and that the district court erred in not instructing the

jury on unconditional intent fail.

B. Sufficiency of the Evidence

Tyrone argues that, even if § 2119 only requires conditional

intent, the government’s evidence is insuffic ient to support her

conviction. She points to the following facts in her favor: 1)

Tyrone did not attempt to harm Blakely when Blakely looked in her

trunk for a phone book; 2) Tyrone did not point the gun at Blakely

when Tyrone pulled the gun out of her purse; 3) Tyrone did not5

point the gun at Blakely when Blakely ran from the car; and 4)

Tyrone did not say anything indicating that she would shoot Blakely

if she did not get out of the car.

The government contends that a defendant’s ability to obtain

a car without resorting to the infliction of death or serious

bodily harm does not negate the intent to cause such harm in order

to obtain the car. A nderson

, 108 F.3d at 484. The government

points to the following facts suggesting that Tyrone possessed the

intent to cause death or serious bodily harm if Blakely did not

relinquish the car: 1) Tyrone created an elaborate plan to lure

Blakely to he r home, contacting GMAC and complaining of nonexistent notices; 2) Tyrone lured Blakely to an isolated place so

she could steal Blakely’s car; 3) Tyrone pulled a loaded and fully

operable firearm from her purse and, in an ensuing struggle, struck

Blakely on the head with it; and 4) Tyrone told Blakely, “I’m going

to do to you what I did to Ruby.”

On appeal, we will uphold a jury’s verdict if a rational trier

of fact could have found the essential elements of the crime beyond

a reasonable doubt. S ee United States v. Payne

, 99 F.3d 1273, 1278

(5th Cir. 1996). The jury is free to choose from among all

reasonable constructions of the evidence. S ee Uni ted States v.

Chaney

, 964 F.2d 437, 448 (5th Cir. 1992). We must determine

whether the evidence, when considered in the light most favorable

to the government, proved Tyrone’s guilt beyond a reasonable doubt.

See United States v. Westbrook

, 119 F.3d 1176, 1189 (5th Cir.

1997), cert. denied , 118 S. Ct. 1059-60 (1998).6

Tyrone carried out a plan to lure a GMAC representative to her

house. Because GMAC previously repossessed a car that was parked

at Tyrone’s house and belonged to the girlfriend of Tyrone’s son,

the jury could have inferred that Tyr one’s plan was to take some

measure of revenge against GMAC, or specifically against Blakely.

The jury also could have inferred that Tyrone pulled the gun from

her purse as a means of intimidating Blakely into relinquishing the

car and that if Blakely did not relinquish the car, T yrone would

use deadly force to accomplish her plan. Tyrone’s words and

actions, including battering and threatening Blakely with the gun,

evidence her intent to cause serious bodily harm or death if

Blakely did not acquiesce in Tyrone’s plan. For the above reasons,

we find the evidence sufficient to support Tyrone’s carjacking

conviction pu rsuant to § 2119, and therefore also affirm her

conviction for use of a firearm during a crime of violence pursuant

§ 924.

II. Receiving or concealing a stolen firearm

Tyrone argues we should reverse her firearms conviction

b ecause the statute is beyond Congress’ power under the Commerce

Clause. Section 18 U.S.C.A. § 922(j) requires that the defendant

receive or conceal a stolen firearm that has been shipped or

transported in interstat e commerce. 18 U.S.C.A. § 922(j) (West

Supp. 1999). Tyrone contends that the prohibited conduct has

nothing to do with interstate commerce; therefore, it is an

impermiss ible exercise of Congress’ Commerce Clause power. She

relies on United States v. Lopez

, 514 U.S. 549, 567-68 (1995),7

where the Court held that the federal government could not,

consistent with its power und er the Commerce Clause, criminalize

t he mere interstate possession of a firearm in or near a school,

because the statute did not regulate the channels or

instrumentalities of commerce, nor did the prohibited conduct have

“[anything] to do with ‘commerce’ or any sort of e conomic

enterprise.” Id. at 561.

We recently held that § 922(j) is a constitutional exercise of

Congress’ Commerce Clause power. United States v. Luna , 165 F.3d

316, 320-21 (5th Cir. 1999). This forecloses Appellant’s position.

The firearm Tyrone used during the carjacking was manufactured in

Massachusetts, purchased in Alabama, and taken to Texas by its

own er. Evidence that a gun was manufactured in one state and

possessed in another state is sufficient to establish a connection

between the firearm and interstate commerce. S ee United States v.

Pierson

, 139 F.3d 501, 503-04 (5th Cir. 1998). For the above

reasons, we affirm Tyrone’s conviction pursuant to § 922(j).

CONCLUSION

Because we hold the condi tional intent to cause death or

serious bodily harm if the victim does not relinquish his car

satisfies § 2119, the district court did not err in not instructing

on unconditional intent, the evidence is sufficient to support the

j ury’s carjacking conviction, and § 922(j) is a permissible

exercise of Congress’ Commerce Clau se power, we affirm Tyrone’s

convictions.

AFFIRMED8