United States v. Marvin Demarquay Moore , 249 F. App'x 751 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 1, 2007
No. 07-11673 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00215-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN DEMARQUAY MOORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(October 1, 2007)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Marvin Demarquay Moore plead guilty to bank robbery, in violation of 18
U.S.C. § 2113(a). He appeals his 60-month sentence imposed by the district court.
Moore argues that the district court erred by imposing a three-level enhancement of
his sentence, for possession of a dangerous weapon during the robbery, pursuant to
U.S.S.G. § 2B3.1(b)(2)(E). Specifically, Moore claims that the enhancement
should not apply because he did not actually possess a weapon or an object
simulating a weapon.
We review the district court’s findings of fact for clear error, but review its
application and interpretation of the Sentencing Guidelines de novo. United States
v. Lozano, 490 F.3d 1317, 1321 (11th Cir. 2007) (citing United States v. Crawford,
407 F.3d 1174, 1177-78 (11th Cir. 2005)).
Section 2B3.1(b)(2)(E) of the Guidelines provides for a three-level
enhancement “if a dangerous weapon was brandished or possessed” during a
robbery. U.S.S.G. § 2B3.1(b)(2)(E). We have held this section applies to the
possession of a toy gun, even though that gun was never used or displayed. United
States v. Shores, 966 F.2d 1383, 1387-88 (11th Cir. 1993) (per curiam). Similarly,
we have found the section applicable when a “robber uses a finger or some other
hard object to cause the victim to believe that it is a dangerous weapon,” even if
the victim never actually sees the object. United States v. Vincent, 121 F.3d 1451,
1455 (11th Cir. 1997); see United States v. Woods, 127 F.3d 990, 993 (11th Cir.
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1997) (per curiam). In our most recent case analyzing this section, we determined
that “the critical factor for the application of § 2B3.1(b)(2)(E) is whether the
defendant intended the appearance of a dangerous weapon.” United States v.
Bates, 213 F.3d 1336, 1338 (11th Cir. 2000) (citing Woods, 127 F.3d at 993).
Bates upheld a district court’s enhancement under this section where an unarmed
defendant simulated the possession of a dangerous weapon by reaching into his
pants waist band during a bank robbery. Id. at 1336-39.
In this case, Moore argues that his sentence should not have been enhanced
under U.S.S.G. § 2B3.1(b)(2)(E) because he did not possess a dangerous weapon
or an object that resembled a dangerous weapon. This argument is foreclosed by
our decision in Bates, where we upheld an enhancement under this section when
the defendant did not possess any object at all. Id. at 1338-39. It was sufficient that
the defendant in Bates reached into his waist band, thus creating the appearance
that he possessed a dangerous weapon. Id.
The issue before us then is whether Moore acted in a manner to create the
appearance that he possessed a dangerous weapon. We relied in Bates on the
subjective perception of the victim teller in making this determination. Id. at 1339
(“Because Bates’s hand simulated possession of what appeared to be a dangerous
weapon, and the victim teller perceived Bates to possess a dangerous weapon, we
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affirm the district court's imposition of the three-level enhancement pursuant to
§ 2B3.1(b)(2)(E).”). The victim teller in the instant case, Kimberly Ann Gollotte,
testified that she believed that Moore possessed a dangerous weapon based on the
demand note, which read “Give me the money or else,” and the fact that Moore
repeatedly reached his hands down his pants. This case is thus legally and factually
indistinguishable from Bates. Therefore, the district court properly applied the
three-level enhancement to Moore’s sentence under U.S.S.G. § 2B3.1(b)(2)(E).
Accordingly, we affirm.
AFFIRMED.
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