Defendant-Appellant Stacy Malone was charged with seven counts in a fourteen count superseding indictment. On May 20, 1999, at the conclusion of a jury trial, Malone was found guilty of: conspiracy, interference with interstate commerce, possession of a firearm during a crime of violence, and carjacking. In addition, Malone was convicted of aiding and abetting in connection with each of the above offenses, with the exception of the conspiracy count. On appeal, Malone raises five issues. He argues that (1) there was insufficient evidence to support his conviction for carjacking, (2) 18 U.S.C. § 924(c) does not authorize two convictions where the predicate crimes were part of a continuous course of conduct, (3) the district court committed plain error when it instructed the jury that only a de minimis effect on interstate commerce was necessary to prove the jurisdictional nexus under 18 U.S.C. § 1951, (4) the district court erred in calculating his guideline range because there was an insufficient showing that the victim was abducted to facilitate the carjacking, and (5) the district court erred in failing to group the U.S. Express robbery conviction with the carjacking conviction under U.S.S.G. § 3D1.2(c). We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM. 1
BACKGROUND
U.S. Express Robbery
On December 21, 1998, Estac Love (“Love”), Willie Cobb (“Cobb”), and Stacy Malone (“Malone”) decided they would rob the U.S. Express located at 1610 North Lewis in Tulsa, Oklahoma. To that end, the three men drove to the U.S. Express and observed Christine DeMauro (“De-Mauro”), the manager of the U.S. Express, exiting the building. Love, Cobb, and Malone then followed DeMauro as she drove away from the U.S. Express with the intention of carjacking her and forcing her *1289 to return to the U.S. Express to enable them to get inside the business and rob it. DeMauro, unaware that she was being followed, drove to her grandparent’s house to pick up her son. When DeMauro arrived at her grandparent’s house, she went into the house to retrieve her son. As she was walking back outside to drive away, Love approached her, put a gun to her face, and demanded that she get down. Love then dragged her back to the carport, which is attached to her grandparent’s house, and again forced her onto the ground, demanding that DeMauro turn over her keys to him. DeMauro lied, saying that she did not have the keys. At that point, Love walked over to DeMauro’s car, retrieved her keys, and found the key and alarm beeper for U.S. Express.
Meanwhile, Malone, armed with a .380 caliber pistol, and Cobb noticed that the people inside the house were watching. At that point Malone, Cobb, and Love, dragging DeMauro, entered the house and tied up DeMauro’s grandparents and her son with duct tape. When the men used the duct tape to cover the little boy’s mouth, DeMauro became extremely upset, demanding that the men take the tape off the boy’s mouth because he was asthmatic. Cobb complied. Meanwhile, Malone had searched the house and returned with a glass jar full of change which he took with him when they eventually left the house.
Leaving the grandparents and the boy inside the house, Love forced DeMauro back into the front passenger seat of .her car at gunpoint. With Cobb seated in the back seat and Malone following in another car, Love drove DeMauro’s car back to the U.S. Express at 1610 North Lewis in Tulsa, Oklahoma.
When they arrived at the U.S. Express, Love forced DeMauro to deactivate the alarm system and threatened to kill her if she hit any other buttons. Love and De-Mauro then entered the building. Love directed DeMauro to remove the surveillance videotape and then had her open the safe where the money was held. Love then began filling a bag he had brought with him with money from the safe. When Love finished removing all of the money, he forced DeMauro back outside. Because Malone was not waiting out in front with his car, Love, Cobb, and DeMauro got back into her car and drove around until they found Malone. During this drive, one of the men told DeMauro not to do anything stupid as he still had the gun on her. Once Love and Cobb located Malone, they got out of DeMauro’s car and grabbed approximately $900 from the bag of money. Love then said “thank you” to De-Mauro and kissed her on the cheek as he walked away. Love, Cobb, and Malone then drove away in Malone’s car. The three men split the money evenly with Malone receiving about $300. The majority of the money from the U.S. Express robbery had been left in DeMauro’s car.
The Grandy’s Robbery
On January 5, 1999, Malone, Love, and Cobb decided to rob the Grandy’s restaurant located at 2140 S. Garnett in Tulsa, Oklahoma. 2 Malone parked the car at a bar across the parking lot from the Gran-dy’s and the trio approached the restaurant. Malone and Love were both armed with weapons. Malone stayed outside near the drive-thru window, while Cobb stationed himself inside the front door. Love then entered the restaurant wearing a green mask and pointing his weapon at the employees. When the people in the restaurant saw Love and his gun, they began running away screaming. Love then ran out of the Grandy’s after losing control of the situation, and before he was able to take any money. Malone and Cobb likewise ran from the restaurant, and the three men returned to Malone’s car and drove away. (Id.)
On March 4, 1999 the grand jury for the Northern District of Oklahoma charged *1290 Malone with seven counts in a fourteen-count superseding indictment. Count three charged Malone with conspiracy in violation of 18 U.S.C. § 371, counts four and eight charged him with interference with interstate commerce and aiding and abetting in violation of 18 U.S.C. §§ 1951 and 2, counts five, seven, and nine charged Malone with possession of a firearm during a crime of violence and aiding and abetting in violation of 18 U.S.C. §§ 924(c) and 2, and count six charged him with carjacking and aiding and abetting in violation of 18 U.S.C. §§ 2119 and 2. On May 20, 1999 a jury found Malone guilty of all the above counts.
On September 14, 1999 the district court sentenced Malone. The court grouped counts three, conspiracy, and four, armed robbery and aiding and abetting, together as recommended by the presentence report. The court determined that the offense level was 20, because that was the offense level for armed robbery under U.S.S.G. § 2B3.1(a). The court then increased the base offense level by four pursuant to section 2B3.1(b)(4)(A) because a person was abducted to facilitate commission of the offense. The district court further imposed a one level increase pursuant to section 2B3.1(b)(7)(B) because the loss exceeded $10,000. The court determined that the adjusted offense level for the first group of convictions was 25.
The court then grouped count three, conspiracy, with count six, carjacking and aiding and abetting. The court determined that the base offense level was 20 pursuant to U.S.S.G. § 2B3.1(a) and then increased the base offense level by four because a victim was abducted to facilitate commission of the offense pursuant to section 2B3.1(b)(4)(A). Likewise, the court added a two-level increase pursuant to section 2B3.1(b)(5) because the offense involved a carjacking. Thus, the court determined that the adjusted offense level for the second group of convictions was 26.
The final group of convictions constructed by the court consisted of count three, conspiracy, and count eight, armed robbery and aiding and abetting. The base offense level for this crime was 20. No further adjustments were made to this group. The district court then increased Malone’s offense level for each multiple count group pursuant to U.S.S.G. § 3D1.4, making Malone’s combined adjusted offense level 29 for counts three, four, six, and eight. The district court then sentenced Malone to 97 months for each of counts three, four, six, and eight to run concurrently.
The district court then addressed counts five, seven, and nine, which were all firearm convictions in violation of 18 U.S.C. § 924(c). The applicable sentencing guideline, U.S.S.G. § 2K2.4(a), dictated that the penalty was that required by the statute section 924(c). Thus, the district court sentenced Malone to seven years for count five and two terms of twenty-five years for counts seven and nine. Each of these three sentences were consecutive to the 97 months for counts three, four, six, and eight. Malone now appeals his convictions and sentence.
DISCUSSION
I. Sufficiency of the Evidence
Malone argues that there was insufficient evidence for a jury to find beyond a reasonable doubt that he had the intent to kill or inflict serious bodily injury at the time he carjacked DeMauro’s vehicle as required by 18 U.S.C. § 2119. Specifically, he argues that although the threats and actions of Love, Cobb, and himself may have satisfied the “by force or by intimidation” element, they did not satisfy the intent element, because there was no additional evidence that had DeMauro not complied, the defendants would have killed or injured her. We disagree that the evidence failed to show the required intent to cause serious bodily harm.
We review the sufficiency of the evidence de novo.
United States v. Brown,
Section 2119, the federal carjacking statute, makes it a crime to “take[] 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” with “the intent to cause death or serious bodily harm.” 18 U.S.C. § 2119.
In
Holloway v. United States,
In a carjacking case in which the driver surrendered or otherwise lost control over his car without the defendant attempting to inflict, or actually inflicting, serious bodily harm, Congress’ inclusion of the intent element requires the Government to prove beyond a reasonable doubt that the defendant would have at least attempted to seriously harm or kill the driver if that action had been necessary to complete the taking of the car.
Id.
at 11-12,
The Court also made clear that the intent requirement will not always be met just by showing that the element of intimidation was present. The Court specifically noted that, “[wjhile an empty threat, or intimidating bluff, would be sufficient to satisfy [the by force or intimidation element], such conduct, standing on its own, is not enough to satisfy § 2119’s specific intent element.”
Id.
at 11,
In this ease, the evidence showed that as DeMauro exited her grandparent’s house, Love put a gun to her face and forced her to the ground. He then dragged her up to the carport and shoved her back to the ground demanding that she give him the keys to U.S. Express. When DeMauro lied and stated that she did not have the keys with her, Love shoved her down, and went and retrieved the keys on his own from her car. Once the defendants became aware that they were being watched from the house, they dragged DeMauro back into her grandparents’ house and proceeded to tape the hands and feet of both her grandparents and her son. After ensuring that they were sufficiently restrained, the defendants forced DeMauro, again at gunpoint, out to her ear. We believe a jury could conclude beyond a reasonable doubt based on the above evidence that, at the time of
*1292
the carjacking, the defendants had a real and present intent to seriously harm De-Mauro if necessary to complete the carjacking.
See United States v. Lake,
Malone argues that because there was evidence that defendant Cobb removed the duct tape from DeMauro’s son’s mouth upon the request of DeMauro and never threatened to kill her at the time of the carjacking, and in fact intended to use her assistance to carry out the U.S. Express robbery, the requisite intent was not shown. The fact that the defendants did not actually harm DeMauro or her son does not imply that -they would not have harmed him or DeMauro had DeMauro further resisted the carjacking.
See Williams,
II. § 924(c) Convictions
Malone next argues that 18 U.S.C. § 924(c) does not authorize two convictions when the two predicate offenses, the U.S. Express robbery and the carjacking, were part of a continuous course of conduct. Thus, Malone contends that he should have only been convicted of one § 924(c) conviction and sentenced accordingly. Normally, we review de novo the district court’s interpretation of a criminal statute,
see United States v. Romero,
We now turn to whether the district court .committed plain error in its interpretation of § 924(c). § 924(c) states:
“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-© be sentenced to a term of imprisonment of not less than 5 years.”
*1293 18 U.S.C. § 924(c)(1)(A). In this case, Malone was convicted of two § 924(c) offenses, relating respectively to Malone’s convictions for the U.S. Express robbery and carjacking. Malone argues that under the language of § 924(c) “any crime of violence” does not authorize two § 924(c) convictions when the two predicate offenses, here robbery and carjacking, are part of one continuous course of conduct. We believe our precedent forecloses this argument.
In
United States v. Chalan,
To decipher Congress’ intent, we turned to the test devised by the Supreme Court in
Blockburger v. United States,
We again used the
Blockburger
test in
United States v. Abreu,
Likewise in
United States v. Floyd,
Although the above cases dealt with challenges to consecutive sentences under section 924(c), rather than challenges to the underlying convictions themselves, as is the case here, it was necessary in each case to determine first whether the underlying predicate offenses constituted one “crime of violence” or two. Thus, implicitly we were required to determine whether one or two convictions for those underlying offenses could be maintained under the language of the statute. We therefore find these cases to be controlling.
In order to determine in the present case whether the predicate offenses of robbery and carjacking are one crime of violence or two under section 924(c) we look to the test developed in Blockburger, even though the offenses occurred during a continuous course of conduct. Here, Malone was convicted of two violations of section 924(c) based on the separate underlying offenses of robbery in violation of 18 U.S.C. § 1951, and carjacking in violation of 18 U.S.C. § 2119. It is undisputed that section 1951 and 2119 are directed at different types of conduct and require proof of different elements. Thus, the district court did not commit plain error in determining that two convictions were authorized under the language of section 924(c).
III. Hobb’s Act Claims
Malone next argues that the district court erred in instructing the jury that only a de minimis effect on interstate commerce is needed to prove the jurisdictional nexus under 18 U.S.C. § 1951.
3
According to Malone, the Hobb’s Act requires a showing of a substantial effect on interstate commerce. A panel of this Circuit has previously held that the “ ‘jurisdictional predicate of the Hobbs Act can be satisfied by a showing of any
de minimis
effect on commerce.’ ”
United States v. Bolton,
Malone, however, points to the Supreme Court’s recent decisions in
Jones v. United States,
— U.S. -,
In
United States v. Morrison,
the Supreme Court held that 42 U.S.C. § 13981 of the Violence Against Women Act of 1994 (“VAWA”) could not be sustained under the Commerce Clause.
See
—- U.S. at --,
In striking down section 13981 the Court relied on the fact that section 13981, like the Gun-Free School Zones Act of 1990 which was struck down in
Lopez,
was attempting to regulate non-economic criminal conduct.
Morrison,
— U.S. at-,
Likewise, we do not believe
Jones v. United States
impacts our Hobb Act precedent. In
Jones,
the Supreme Court examined the federal arson statute which makes it a federal crime to damage or destroy “by means of fire or an explosive, any ... property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.... ” 18 U.S.C. § 844(i). In particular, the Court determined that arson of an owner-occupied private residence did not fall within the scope of 18 U.S.C. § 844(i).
See Jones,
— U.S. at-,
Unlike the federal arson statute, the Hobbs Act has no similar qualifying language. Instead, the language of the Hobbs Act indicates Congress’ intention to invoke its full authority under the Commerce Clause.
See Jones,
— U.S. at -,
IV. Sentencing Guidelines
A. Section 2B3.1(b)(4)(A) 5
Malone next argues that the district court erred when it increased his base
*1296
offense level for the carjacking pursuant to U.S.S.G. § 2B3.1 (b)(4)(A). This section provides that “[i]f any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels.” U.S.S.G. § 2B3.1(b)(4)(A). Malone contends that the evidence was insufficient to prove that he intended to abduct De-Mauro to facilitate the carjacking; instead, he argues the evidence showed Malone abducted DeMauro to facilitate the U.S. Express robbery. Because Malone failed to object to the PSR and otherwise failed to raise an objection during the sentencing proceedings before the district court, we review this claim for plain error only. Fed.R.Crim.P. 52(b);
see also United States v. Jones,
We find no plain error in the application of § 2B3.1(b)(4)(A) in this case. The evidence before the district court showed that DeMauro was abducted, at least in part, to accomplish the carjacking, and not simply to facilitate the robbery of U.S. Express. If Malone and his co-defendants had only wanted to use DeMauro to accomplish the robbery of U.S. Express, they could have just put her in their car. Instead, they made a conscious choice to carjack De-Mauro’s car with her in it. Moreover, by abducting DeMauro, Malone was able to insure that she could not call 911 or otherwise interfere with his and his cohorts’ future plans. Thus, there was sufficient evidence from which the district court could properly apply the four level enhancement. The district court’s conclusion that DeMauro was abducted to facilitate the commission of the carjacking, therefore, was not plain error.
B. Grouping under § 3D1.2(c)
Malone next argues that the district court erred when it failed to group his carjacking offense with the U.S. Express robbery. If grouping had occurred, Malone’s offense level would have been decreased by two points, yielding a lower sentencing range. Because Malone failed to object to the district court’s application of the sentencing guidelines, we review only for plain error.
See Gilkey,
U.S.S.G. § 3D1.2 provides: “All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule: ... (c) [w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” Comment 5 to this section further explains that “when conduct that represents a separate count, e.g., bodily injury or obstruction of justice, is also a specific offense characteristic in or other adjustment to another count, the count represented by that conduct is to be grouped with the count to which it constitutes an aggravating factor.” In this case, Appellant was convicted of one count of carjacking and one count of robbery of the U.S. Express, and was sentenced independently for each of these counts. Appellant asserts that because carjacking is a specific offense characteristic of robbery, see U.S.S.G. § 2B3.1(b)(5) (“If the offense of robbery involved carjacking, increase by two levels.”), the court was required to group the offenses. We disagree.
The application note discussing § 3D1.2(c) states that this provision “prevents ‘double counting’ of offense behavior.” U.S.S.G. § 3D1.2(c), note 5. Double counting occurs when “the same conduct on the part of the defendant is used to support separate increases under separate enhancement provisions which necessarily overlap, are indistinct, and serve identical purposes.”
United States v. Rucker,
In
Gigley,
the defendant pled guilty to possession with intent to distribute methamphetamine. When he failed to appear for sentencing, he was charged with failure to appear in the possession case. This court held that the district court was required to enhance the possession offense by two levels for obstruction of justice due to the failure to appear count, and then group the underlying offense with the failure to appear offense pursuant to § 3D1.2(c).
See Gigley,
The application note to § 3D1.2(c) further explains that:
Of course, this rule applies only if the offenses are closely related. It is not for example, the intent of this rule that (assuming they could be joined together) a bank robbery on one occasion and an assault resulting in bodily injury on another occasion be grouped together. The bodily injury (the harm from the assault) would not be a specific offense characteristic to the robbery and would represent a different harm. On the other hand, use of a firearm in a bank robbery and unlawful possession of that firearm are sufficiently related to warrant grouping of counts under this subsection.
U.S.S.G. § 3D1.2(c), note 5. The facts of the present case fall between these two scenarios. As discussed above, it was not plain error for the district court to decline to enhance the U.S. Express robbery for carjacking because the two crimes were not so closely related as to mandate enhancement under § 2B3.1(b)(5). The same analysis is applicable in determining whether the two offenses are so closely related that they require grouping. Thus, as explained above, if Malone had carjacked DeMauro and robbed
her,
then the offenses would clearly need to be grouped. Where the crimes are distinct and separated by different underlying facts, however, we cannot conclude it was plain error for the sentencing judge to determine they were not closely related for purposes of grouping. As in the application notes example of the robbery and the assault, the harm caused by the U.S. Express robbery
*1298
was not the same as the harm caused by the carjacking. These two offenses posed threats to distinct and separate societal interests-those of the U.S. Express and those of DeMauro.
See United States v. Hines,
CONCLUSION
For the reasons set forth above, the judgment of the district court is AFFIRMED.
Notes
. Following oral argument in this case, Malone submitted a Motion for Permission to File Supplemental Brief, in which he requested permission to file a supplemental brief discussing recent Supreme Court decisions and permission to argue an additional issue not previously raised. Pursuant to Federal Rule of Appellate Procedure 28(j), counsel for Malone submitted as supplemental authority the Supreme Court decisions on which she now requests permission to brief. We have considered this authority and find further briefing on the cases unnecessary. With regard to the request to argue an additional issue, this request is untimely. The motion is therefore denied.
. Malone told Agent Legleiter and the grand jury that he and Cobb had argued prior to the Grandy's robbery because of Malone’s reluctance to participate in the robbery. Cobb, during his trial testimony, however, denied forcing Malone to participate in the robbery.
. In Malone's initial appeal to this court, he only raised a challenge to his conviction of attempted Hobbs Act robbery of the Grandy’s restaurant. Malone subsequently filed with this court a motion to amend his appeal to add a similar challenge to his conviction under the Hobbs Act for the robbery of the U.S. Express. We grant this motion, as it raises no new issues.
. The Hobbs Act provides for the punishment of "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do....” 18 U.S.C. § 1951(a). The act then further defines commerce as "all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.” 18 U.S.C. § 1951(b)(3).
. The district court, as well as both parties on appeal, state that Malone’s sentence was enhanced by four levels pursuant lo U.S.S.G. § 2B3.1(b)(4)(B). It is clear, however, that the applicable section is § 2B3.1(b)(4)(A). Subpart (B) only provides for a two-level enhancement for physically restraining a person to facilitate commission of the crime. It is subpart (A) which provides for the four-level enhancement for the abduction of a person to facilitate commission of the crime. Both parties on appeal focus their argument on whether Malone "abducted” the victim to facilitate *1296 commission of the crime, and whether a "four-point” enhancement was proper. We therefore assume that the parties and the dis-