Case: 18-40635   Document: 00515442293       Page: 1   Date Filed: 06/05/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                   No. 18-40635                      June 5, 2020
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk


             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,
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                                 No. 18-40635
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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                                       No. 18-40635
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, 

, 1279 (5th Cir. 1994) (quoting United States v.
Singleton, 

, 1422 (5th Cir. 1994)).
       2

v. United States, 

, 12 (1999).
       4 United States v. Danhach, 

, 235 (5th Cir. 2016) (citing United States v.

Grant, 

, 642 (5th Cir. 2012)); United States v. Hale, 

, 543 (5th Cir.
2012) (citing United States v. Clayton, 

, 412 (5th Cir. 2007)).
       5 United States v. Ganji, 

, 767 (5th Cir. 2018).

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                                      No. 18-40635
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, 

, 186 (5th Cir. 2016) (quoting United States v.
Roetcisoender, 

, 550 (5th Cir. 2015)).
       7 United States v. Girod, 

, 313 (5th Cir. 2011) (citing United States v.

Myers, 

, 78-79 (5th Cir. 1997)).
       8 United States v. Chaney, 

, 448 (5th Cir. 1992) (quoting United States v.

Berisha, 

, 795 (5th Cir. 1991)).
       9 United States v. Dien Duc Huynh, 

, 742 (5th Cir. 2001) (quoting United

States v. Mendoza, 

, 343 (5th Cir. 2000)).
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                                        No. 18-40635
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 co-
conspirators, 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, 

, 12 (1999).
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                                  No. 18-40635
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

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                                         No. 18-40635
                                              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 

(5th Cir. 2005).
      13

      14

      15

at 469-70.
      17

      18

      20 See

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                                        No. 18-40635
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, 

, 761 (5th Cir. 2003).
      22

Transp. Union v. Foster, 

, 857 (5th Cir. 2000)).
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                                    No. 18-40635
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

v. United States, 

, 300 (1998)).
      24 United States v. Magana, 

, 459 (5th Cir. 2016) (quoting Pearson v.
Holder, 

, 684 (5th Cir. 2010)).
      25

343 F.3d at 761).
      26
 

343 F.3d at 761-62).
      27 See 
Carmichael, 343 F.3d at 761
.

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                                          No. 18-40635
                                               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))).
                                              10