
USCA1 Opinion

	











          June 28, 1996

                            United States Court of Appeals
                                For the First Circuit
                                 ____________________


          No. 95-2186

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                               REYNALDO VAZQUEZ RIVERA,

                                Defendant, Appellant.
                                 ____________________


                                     ERRATA SHEET
                                     ERRATA SHEET


               The  opinion  of  this Court  issued  on  May  21, 1996,  is
          corrected as follows:

               Page 2,  second paragraph,  lines 4-6, delete  sentence that
          begins:   "We  conclude, however,  . .  ."   Replace it  with the
          following sentence:  

               We conclude,  however, that the factual  record has not
               been sufficiently  developed  to support  the  sentence
               enhancement,  and therefore  remand  for  the  district
               court to reconsider the sentencing options.

               Page 13, delete footnote  9.  Replace it with  the following
          footnote:

               9  Although a rape of any type surely is a sufficiently
               serious  physical  invasion  to  justify  a  sentencing
               enhancement,  the statute as  written requires evidence
               of the specific, objective types of harm set out there.
               It may be  that, in choosing the  definition of serious
               bodily  injury  contained in     1365,  a statute  that
               penalizes the tampering of consumer products, see supra
                                                             ___ _____
               at 10,  Congress did  not recognize the  limitations of
               its language.  

               Page  14, line  5, insert  "evidentiary" between  "some" and
          "basis." 
















                            United States Court of Appeals
                                For the First Circuit
                                 ____________________


          No. 95-2186

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                               REYNALDO VAZQUEZ RIVERA,

                                Defendant, Appellant.
                                 ____________________


                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________
                                 ____________________


                                        Before

                               Torruella, Chief Judge,
                                          ___________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                               and Cyr, Circuit Judge.
                                        _____________
                                 ____________________


               Gustavo  A. Gelpi, Assistant  Federal Public  Defender, with
               _________________
          whom  Benicio Sanchez  Rivera,  Federal Public  Defender, was  on
                _______________________
          brief for appellant.
               Edwin  O. Vazquez,  Assistant United  States Attorney,  with
               _________________
          whom Guillermo  Gil, United States  Attorney, and Jose  A. Quiles
               ______________                               _______________
          Espinosa, Senior Litigation Counsel, were on brief for appellee.
          ________

                                 ____________________

                                     May 21, 1996
                                 ___________________























               COFFIN, Senior  Circuit Judge.   Defendant  Reynaldo Vazquez
                       _____________________

          Rivera  was convicted of carjacking  in violation of  18 U.S.C.  

          2119.   He claims that  the district court  committed two errors:

          first,  by allowing the jury  to hear evidence  that he raped the

          carjacking victim  and, second, by increasing  his sentence based

          on a  finding that the  rape constituted "serious  bodily injury"

          within the meaning of the statute's enhancement provision.1

               The admissibility issue  is close.  We ultimately  have been

          persuaded,  however,  that the  prejudicial  impact  of the  rape

          evidence did not substantially outweigh its probative value.   We

          therefore  affirm  the  defendant's  conviction.    We  conclude,

          however,  that  the  factual  record has  not  been  sufficiently

          developed  to  support the  sentence  enhancement, and  therefore

          remand  for  the  district  court to  reconsider  the  sentencing

          options.

                                    I. Background
                                       __________


                              
          ____________________

               1 At the time  of the offense, section 2119, which has since
          been amended, provided, in pertinent part:

               Whoever, possessing a firearm as defined in section 921
               of  this  title, 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, shall --

                    (1) be  fined under  this title or  imprisoned not
               more than 15 years, or both,

                    (2)  if  serious  bodily  injury  (as  defined  in
               section  1365 of  this title)  results, be  fined under
               this title  or imprisoned  not more than  25 years,  or
               both . . . .

                                         -3-














               Near midnight on  June 24, 1994,  just after Lydita  Crespo-

          Suarez  had parked her car  near the restaurant  where she worked

          and  was retrieving  some  items from  the  back seat,  defendant

          Vazquez came up from behind and forced her back into the vehicle.

          She testified that  he had a weapon that she  initially could not

          see clearly, but later realized was a knife.

               Defendant drove Crespo from  the busy section of  Isla Verde

          where  the  incident began  to a  remote  beach area  in Naguabo,

          ordered her  to disrobe and  get out of  the car, and  then raped

          her.  According to  Crespo's testimony, defendant had a  gun that

          he  put into his  waist as he  got out  of the car,  and which he

          placed  on the car  roof before raping  her.  After  the assault,

          defendant let Crespo go and he drove  off in her car.  She walked

          along the road until  she encountered a police officer,  who took

          her to a police station where  she gave an account of her ordeal.

          A short time later, she was examined at a hospital  and then sent

          home.

               Defendant was  arrested about a  month after the  crime, and

          was identified  by Crespo in a  lineup.  He was  charged with one

          count of carjacking, the  indictment stating that he had  taken a

          vehicle from  Crespo "by  force and violence,  inflicting serious

          bodily injury, that is: rape her."2

                              
          ____________________

               2 A  second count  charging that  appellant  used a  firearm
          during a crime of violence in violation of 18 U.S.C.   924(c) was
          dismissed on double jeopardy  grounds.  Although the  court later
          reconsidered the dismissal, it chose to let the  partial judgment
          stand because  the  government  had  not  sought  review  of  the
          dismissal.

                                         -4-














               In  a  motion in  limine,  Vazquez asked  that  the "serious

          bodily  injury/rape"  language  be deleted  from  the  indictment

          because  it related only to the sentence enhancement portion of  

          2119  and not to the offense conduct itself.3  The district court

          denied  the  motion.    Defendant  sought  reconsideration,  and,

          because his defense would rest entirely on his claim  that he did

          not  have a gun,4 he urged the  court to compel the government to

          accept  his stipulation to the element of "force and violence" or

          "intimidation" so  as to  make evidence  of the  rape irrelevant.

          The court  again denied the motion, stating  that "the government

          has a right to present all  the facts that . . . show  that there

          was a revolver involved."

               The    testimony   at    the   three-day    trial   revealed

          inconsistencies in law enforcement reports of Crespo's statements

          about  what weapons she had seen and when she had seen them.  The

          police  officer  who first  encountered  her  testified that  she

          reported being  approached by an  individual with a gun.   In her

          own  cross-examination,  Crespo  denied  saying that  a  gun  was

          involved  in the original assault  and stated that  she first saw
                              
          ____________________

               3 As noted earlier, see note 1 supra,   2119(1) provides for
                                   ___        _____
          a 15-year maximum term, which is enhanced under subsection (2) to
          a 25-year maximum if "serious bodily injury" results.  Subsection
          (3)  provides  that, if  death  results,  the  carjacker  may  be
          imprisoned for life.

               4  As indicated  earlier, see note  1 supra,  the carjacking
                                         ___         _____
          statute  under  which  Vazquez  was convicted  included  firearms
          possession as one  of its elements.  Section 2119  has since been
          amended  to substitute the phrase "with the intent to cause death
          or serious bodily harm" for the language requiring  possession of
          a firearm.  See  United States v. Rivera-Gomez, 67  F.3d 993, 996
                      ___  _____________    ____________
          n.1 (1st Cir. 1995). 

                                         -5-














          the   gun  at  Naguabo.    Notes  made  by  another  officer  who

          interviewed  her  when she  was  brought  to the  Naguabo  police

          station referred only to a knife or similar sharp object.  An FBI

          agent  testified that Crespo first  mentioned seeing a knife near

          the driver's seat of the  car a few days before trial.  The trial

          transcript also contains at least ten references to the rape. 

               Vazquez was convicted, and subsequently was sentenced to the

          statutory maximum  term of twenty-five years'  imprisonment based

          on the court's finding that  the rape constituted "serious bodily

          injury."  Vazquez unsuccessfully  argued that the enhancement was

          inapplicable because  the record failed  to show that  Crespo had

          suffered "extreme physical pain," and the district court likewise

          rejected his contention that an evidentiary hearing was necessary

          to resolve the factual issue of serious bodily injury.

               This appeal followed.

                              Admission of Rape Evidence
                              __________________________

               Defendant asserts that  prejudicial error  was committed  by

          the  court in admitting evidence  of the victim's  rape, since it

          was unnecessary to  prove any of the elements of  carjacking.  He

          invokes  Fed. R. Evid. 403,  which compels the  exclusion of even

          relevant  evidence  "if  its  probative  value  is  substantially

          outweighed by the danger of unfair prejudice . . . ."

               In reviewing this claim, we are mindful of several cautions.

          The first is  Rule 403  itself.  The  admitted evidence must  not

          only be prejudicial,  but be unfairly  prejudicial, and not  only

          outweigh relevance but substantially outweigh relevance.   United
                                                                     ______


                                         -6-














          States v.  Aguilar-Aranceta, 58  F.3d  796, 800  (1st Cir.  1995)
          ______     ________________

          ("must  be a  significant  tipping of  the  scales") (quoting  22

          Charles  A. Wright & Kenneth A. Graham, Jr., Federal Practice and
                                                       ____________________

          Procedure,   5221 at  309-310 (1978)).  Moreover, we  must accord
          _________

          the trial court "especially wide latitude" in Rule 403 balancing.

          United  States v. Rivera-Gomez, 67 F.3d 993, 997 (1st Cir. 1995).
          ______________    ____________

          And finally, where the reviewing court finds the balancing close,

          Rule 403  tilts the balance  in favor  of admission.   See United
                                                                 ___ ______

          States v. Clarke, 24 F.3d 257, 265-66 (D.C. Cir. 1994).
          ______    ______

               We  begin by reporting the entire context of the objected to

          evidence,  next consider  its  relevance, and  then confront  the

          extent to which its admission caused unfair prejudice.

               The critical testimony was given by Crespo after she told of

          being  held up at  11:15 at night,  forced to reenter  her car to

          take  defendant  "somewhere,"  and   being  driven  first  to  an

          automobile  licensing station,  then  to the  remote beach  area,

          Naguabo,  while directed  to recline  in her  seat.   Crespo then

          testified:

                    Q    And  what  happened  after  you  reached  the
               Naguabo area?
                    A    He  made me get out, first he made me take my
               clothes off and then he made me get out of the car.  He
               put his gun in his pants.  He came over to my side.
                    Q    Did anything else happen?
                    A    He told me to get on all fours, in a squat.
                         THE COURT:   Get on all fours.
                         THE WITNESS:  And he raped me.
                                EXAMINATION CONTINUED
               BY MS. CARRENO:
                    Q    You mentioned  that he put a  revolver in his
               waist?
                    A    Yes, but when he raped me, when he  was about
               to rape me he put it on top of the car.


                                         -7-














                    Q    Were you able to observe that revolver on top
               of the car?
                    A    I felt it or I heard when he put it on top of
               the car.
                    Q    Were you able to observe it at any moment?
                    A    Yes, when  he  put it  in  the waist  of  his
               pants.
                    Q    Can  you  give  the  members of  the  jury  a
               description of that revolver?
                    A    It  was like  a metal  color with  the handle
               that was like a wooden handle.
                    Q    After that, what, if anything else happened?
                    A    I asked him if now he could let me go.
                    Q    Did he in fact let you go?
                    A    He told me that if I  had my shoes on I could
               get out.
                    Q    Did you in fact get out?
                    A    Yes.
                    Q    Did you have your clothes on?
                    A    Yes.
                    Q    Did  anything happen before  you were allowed
               to leave the car?
                    A    He  had turned  the  car around  and at  that
               point was when I asked him if he could let me go.
                    Q    What happened after you left the car?
                    A    I went  running along the beach  shore to get
               to the road.

          Trial Transcript pp. 100-101.

               The  government  asserts  that  the  evidence  of  rape  was

          necessary  to  prove the  "force  and  violence"  element of  the

          carjacking statute.5  But,  unlike the situation in Rivera-Gomez,
                                                              ____________

          where we held that the  act of killing a driver in the  course of

          an attempted  carjacking was highly  probative of the  "force and
                              
          ____________________

               5 The defendant contends that his offer to stipulate that he
          took  Crespo's vehicle  by  "force and  violence" forecloses  the
          government's contention.  If,  however, the government's need for
          the rape  evidence is  not otherwise substantially  outweighed by
          the  risk  of unfair  prejudice  to the  defendant,  the district
          court's rejection of such  a stipulation would not constitute  an
          abuse of  discretion.  See United States v. Tavares, 21 F.3d 1, 3
                                 ___ _____________    _______
          (1st Cir. 1994) (en banc) (affirming  "the government's `right to
          "present to the jury a picture  of the events relied upon,"'. . .
          including  proof of  all  elements of  the  crime for  which  the
          defendant has been brought to trial") (citations omitted).  

                                         -8-














          violence" element, here, defendant  already had seized control of

          the vehicle, wielding a  weapon that Crespo later realized  was a

          knife.    At  best,  therefore,  testimony  about  the  rape  was

          cumulative evidence of the use of force.

               A weightier  claim  of relevance  is that  knowledge of  the

          sexual  assault was  important  to the  jury's  ability to  fully

          evaluate Crespo's credibility.  A jury reasonably might attribute

          inconsistencies in her reports  of the crime to her  distress and

          disorientation  in the aftermath of the rape.  The government, no

          less  than  the defendant,  is entitled  to  the benefit  of such

          reasonable inferences.

               We  therefore conclude  that  the evidence  of rape  was not

          devoid of relevance.  Were this all that could be mustered on the

          side  of  admitting  the  evidence,  we  might   have  found  the

          concededly highly prejudicial evidence  of rape to meet the  Rule

          403  standard  of substantial  disproportion.   But we  also must

          consider  the  fact  that the  events  at  Naguabo  related to  a

          critical element of the then crime of carjacking -- possession of

          a firearm.

               The defense was  based solely on the  theory that possession

          of a  firearm had  not been proved  beyond a reasonable  doubt, a

          plausible argument given the law enforcement reports of differing

          statements  from  Crespo.    The  only  direct evidence  was  the

          testimony we have quoted.

               Crespo's  testimony of the conduct leading up to the rape --

          particularly  defendant's order that she get down on all fours --


                                         -9-














          provided an important  explanation for her  having heard but  not

          seen the  gun  being  placed  on  the car  roof.    Without  this

          evidence,  the  prosecution would  be  significantly  hampered in

          providing  the jury  with  the answers  to  a series  of  logical

          questions: why didn't  she see  the gun? where  was she  looking?

          what was shedoing? why wasthe weapon placed onthe roof ofthe car?

               Simply preventing  the witness  from stating, "And  he raped

          me"  would  do nothing  --  or  very,  very  little --  to  avoid

          prejudice.  The victim had been taken to a remote  beach, ordered

          to take her  clothes off, get  out of  the car, and  "get on  all

          fours."  The jurors would draw the logical inference.  To require

          excision as well of all of the suggestive evidence not only would

          have unrealistically  telescoped the events at  Naguabo, but also

          would have stripped Crespo's  testimony concerning the firearm of

          much  of its credit worthiness.   As the  Fifth Circuit stated in

          United  States v.  McRae,  593 F.2d  700,  707 (5th  Cir.  1979),
          ______________     _____

          "Unless  trials are to be conducted on scenarios, on unreal facts

          tailored and sanitized for the  occasion, the application of Rule

          403 must  be cautious and sparing."   See United States  v. Cruz-
                                                ___ _____________     _____

          Kuilan,  75 F.3d  59,  61 (1st  Cir.  1996) (challenged  forensic
          ______

          evidence  not only probative of "force  and violence" element but

          also corroborated government's theory of the case).

               In sum, because Crespo's Naguabo testimony provided the sole

          direct evidence of the firearm, it was a "crucial chapter" in the

          narrative,  Rivera-Gomez,  67 F.3d  at  998.   Although  the rape
                      ____________

          evidence unquestionably  was prejudicial, we cannot  say that its


                                         -10-














          high probative value was substantially outweighed by the risk  of

          unfair  prejudice.   The court  did not  abuse its  discretion in

          admitting it.6

                             III. "Serious Bodily Injury"
                                  _______________________

               The district court sentenced the defendant under  subsection

          (2) of   2119,  which increases the maximum term  of imprisonment

          from 15 years to 25  years "if serious bodily injury  (as defined

          in section  1365 of  this title) results."   Section  1365(g)(3),

          contained  within the  Federal  Anti-Tampering  Act, provides  as

          follows:

               the  term "serious bodily  injury" means  bodily injury
               which involves--

               (A) a substantial risk of death;
               (B) extreme physical pain;
               (C) protracted and obvious disfigurement; or
               (D) protracted loss or impairment of the  function of a
               bodily member, organ, or mental faculty . . . .

               The  district  court  applied  the enhancement  based  on  a

          determination that  the  rape  caused  Crespo  "extreme  physical

          pain."  Defendant claims that there is no record support for such

          a  finding, and that  the court's decision  therefore was clearly

          erroneous.

               We are constrained to agree.  Although we can understand the

          court's  desire to punish  the defendant heavily,  and agree with

          its  view  that the  crime  was  "degrading, heinous,  cruel  and
                              
          ____________________

               6 We  recognize that the district  court's relative weighing
          of probativeness  and prejudice focused  on the rape  evidence as
          relevant  to  the issue  of "force  and  violence."   Because the
          testimony is highly probative on the issue of firearm possession,
          we are comfortable affirming its judgment on a somewhat different
          basis. 

                                         -11-














          brutal," there is no record evidence that Crespo suffered  either

          "extreme physical pain" or any of the other listed injuries.  She

          testified  only   that  she  was  raped,   without  any  specific

          description  of the assault.   The presentence report states that

          defendant raped Crespo for about five minutes, but also lacks any

          elaboration.  A medical  report filed as part of  the presentence

          report indicates that, approximately  two hours after the attack,

          there was no evidence of any cuts or bruises in her vaginal area.

               The government suggests that, notwithstanding the absence of

          actual physical injury with pain, the court properly could  apply

          the   enhancement  based  on   "extreme  physical  pain"  because

          "Congress  never  intended  rigid  limiting  definitions  for the

          `serious  bodily  injury'  terminology".   The  cases  it  cites,

          however, do not  support this  proposition.  For  the most  part,

          they  involve construction  of  the  somewhat different  "serious

          bodily    injury"   provision   contained   in   the   Sentencing

          Guidelines,7 and  many also feature evidence  of painful injuries

          suffered  by the victim.  See, e.g., United States v. Desormeaux,
                                    ___  ____  _____________    __________

          4 F.3d 628, 630 (8th Cir. 1993) (victim described pain from knife

          wound lacerating kidney  as "a lot  worse than giving birth  to a
                              
          ____________________

               7 The guidelines define serious bodily injury as follows:

               "Serious bodily injury"  means injury involving extreme
               physical pain  or  the impairment  of a  function of  a
               bodily member, organ,  or mental faculty;  or requiring
               medical intervention such as  surgery, hospitalization,
               or physical rehabilitation.  As used in the guidelines,
               the definition of this  term is somewhat different than
               that used in various statutes.

          U.S.S.G.   1B1.1, comment. (n.1(j)).

                                         -12-














          child"); United States  v. Corbin,  972 F.2d 271,  272 (9th  Cir.
                   _____________     ______

          1992)  (victim was  struck  on head  twice  with a  metal  object

          resembling a gun, causing a laceration that required  a two-layer

          closure  using more than 25  sutures).8  The  government cites no

          case  in which   2119(2)  was applied based  on "extreme physical

          pain" without some evidence of actual pain.

               Perhaps recognizing  the weakness  of its "extreme  physical

          pain"  argument,  the  government  argues  that  the  enhancement

          alternatively  may be  upheld  because the  victim also  suffered

          extreme mental trauma.  This claim is flawed not only because the

          district court did not make such a finding but also because there

          is  no  evidence  that  Crespo  suffered  a  "protracted loss  or

          impairment of  the function  of  a .  . .    mental faculty,"  as

          required  by   1365.   The presentence report  states that Crespo

          received  no   professional  counseling  or  assistance   in  the

                              
          ____________________

               8 In  two  cases involving  rapes,  both decided  under  the
          guidelines and one  of them unpublished, the Sixth Circuit upheld
          findings  of "serious  bodily injury"  based on  sections of  the
          guidelines other than the "extreme physical pain" provision.  See
                                                                        ___
          United  States v.  Tipton, 11  F.3d 602,  609-10 (6th  Cir. 1993)
          ______________     ______
          (impairment of  mental faculty and medical  intervention); United
                                                                     ______
          States v.  Newman, 931 F.2d  57, 1991  WL 63625 at  *3 (6th  Cir.
          ______     ______
          1991)  (unpublished  per curiam)  (primarily  relying  on medical
                               ___ ______
          intervention).    In  Newman,   the  court  recognized  that  the
                                ______
          situation  may  not have  satisfied  a  requirement of  "extreme"
          physical pain.
               In  another  guidelines  case  involving  rape,  the  Eighth
          Circuit concluded  that the  definition of serious  bodily injury
          covers "any  immediate serious  physical trauma resulting  from a
          rape,"  but  that the  pain and  suffering  connected to  a rape-
          induced  pregnancy is  not encompassed  by the  definition.   The
          court held, however,  that the pregnancy  and its related  tragic
          consequences properly could serve as the factual predicate for an
          upward departure.  United States v. Yankton, 986 F.2d 1225, 1229-
                             _____________    _______
          30 (8th Cir. 1993). 

                                         -13-














          aftermath of the  crime, relying  instead on the  support of  her

          family and  boyfriend.  Although  she told the  probation officer

          that  the ordeal  "has  had a  devastating  effect on  her  life,

          family, and consensual relationship," such generalities must fall

          short of  proof measuring up to "protracted . . . impairment of .

          .. mentalfaculty"sufficienttojustifyanadditionalten-yearsentence.

               To be  sure, even a rape  that causes no physical  pain is a

          unique  and reprehensible  physical  and psychic  invasion.   The

          effort  of  the district  court  and  government to  reflect  the

          severity of  that crime through a flexible  interpretation of the

          "serious bodily injury" requirement is  therefore understandable.

          The  statute by  its  terms, however,  limits its  application to

          specific types of injury, and the government cites no legislative

          history, nor has our own research uncovered  any, suggesting that

          the subsections were meant to be less than all-inclusive.9

               To say that  any rape, regardless  of the circumstances,  is

          equivalent to these specified  harms would broaden measurably the

          limited   category  of  injuries   that  Congress  designated  as

          justifying a  substantial increase in  punishment for carjacking.
                                                                __________

          It  would  be, in  effect,  to add  punishment  for  rape to  the

          carjacking  scheme,  which  already represents  somewhat  unusual
                              
          ____________________

               9    Although a  rape of any  type surely is  a sufficiently
                    serious  physical  invasion  to  justify  a  sentencing
                    enhancement, the statute  as written requires  evidence
                    of the specific, objective types of harm set out there.
                    It may be  that, in choosing the  definition of serious
                    bodily  injury  contained in     1365,  a statute  that
                    penalizes the tampering of consumer products, see supra
                                                                  ___ _____
                    at 10,  Congress did  not recognize the  limitations of
                    its language.  

                                         -14-














          federal  intervention  into  a  typically state-law  realm.    We

          decline  to  stretch the  language  Congress  wrote without  some

          indication that it meant the provision to be elastic.  See, e.g.,
                                                                 ___  ____

          United States v. Boots, 80 F.3d 580, 588 (1st Cir. 1996)(the rule
          _____________    _____

          of lenity holds  that "the harsher of two possible  readings of a

          criminal statute will be  enforced only when Congress has  spoken

          clearly").10

               The defendant's  sentence  thus must  be  vacated.   If  the

          government continues to  seek the   2119(2)  enhancement, it must

          provide some basis  upon which the court may conclude that one or

          more of the statutory  conditions of harm occurred.   Contrary to

          defendant's assertion,  an evidentiary hearing  is not necessary.

          Rule  32 of the Federal Rules of Criminal Procedure requires that

          counsel  for  the  defendant  and  the  government  be  given  an

          opportunity  to  comment at  the  sentencing  hearing on  matters

          relating to the appropriate sentence, but the decision whether to

          conduct an evidentiary hearing  is within the court's discretion.

          Fed.  R. Crim. P. 32(c)(1).11   The court,  however, must resolve
                              
          ____________________

               10  Indeed, we think there is some question whether the rape
          is at all relevant  to defendant's punishment under    2119 since
          it was not the "force and violence" by which he gained control of
          the  vehicle.   Arguably,  the conduct  punishable  under    2119
          occurred  at the Isla  Verde Marginal Road  when Vazquez forcibly
          took control of  Crespo's car, and  the subsequent abduction  and
          rape were separate violations of state law.  We need not consider
          the scope of a carjacking  here, however, because defendant  does
          not raise such a claim.  He argues  only that the court could not
          apply  the enhancement  in  the  absence  of  proof  of  "extreme
          physical pain" or some other listed harm.

               11 The case relied on by defendant, Specht v. Patterson, 386
                                                   ______    _________
          U.S.  605 (1967), is inapposite.   In that  case, the Court ruled
          that  due  process required  notice  and  a  hearing  before  the

                                         -15-














          objections to the  presentence report, and  make findings on  any

          controverted matter taken into account in sentencing.  Id.12
                                                                 ___

               For the foregoing reasons, we affirm defendant's conviction,

          but vacate  the sentence  and remand for  resentencing consistent

          with the principles expressed in this opinion.






















                              
          ____________________

          defendant, who  had been  convicted for indecent  liberties under
          one  Colorado  statute, could  be  sentenced  under the  separate
          Colorado  Sex   Offenders  Act,   which  contained   more  severe
          penalties.  Here, the enhancement at issue is part of the statute
          under which the defendant was charged and convicted.

               12 We note that  the government partially defended admission
          of the rape evidence based on an assertion that   2119 required a
          jury  finding  beyond  a  reasonable  doubt  on  "serious  bodily
          injury,"  and further  claimed that  the jury's  verdict reflects
          such a determination.  The government's position is flawed in two
          respects.     First,  the   verdict  does  not   support  such  a
          determination because  the jury made no specific  findings on the
          defendant's conduct.  Second,  we have held that the  alternative
          penalty  provisions  of     2119  are  sentence  enhancers  whose
          applicability is  a  matter for  the judge,  not the  jury.   See
                                                                        ___
          Rivera-Gomez, 67 F.3d at  1000.  Accord United States  v. Oliver,
          ____________                     ______ _____________     ______
          60 F.3d 547, 552-53  (9th Cir. 1995); United States  v. Williams,
                                                _____________     ________
          51 F.3d 1004, 1009 (11th Cir. 1995).

                                         -16-







