Barrett, Lynn J., In the Matter of: , 199 F.3d 1270 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 99-10286
Non-Argument Calendar
________________________
D.C. Docket No. 97-00923-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee-
Cross-Appellant,
versus
PIERRE ANDRE COVER,
Defendant-Appellant-
Cross-Appellee.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(January 4, 2000)
Before ANDERSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Pierre Andre Cover, a federal prisoner, appeals his 195-month sentence for
bank robbery, 18 U.S.C. § 2113 (a), (d) and for using a firearm in connection with
a crime of violence, 18 U.S.C. § 924(c). Cover raises three arguments. First, he
argues that he should not have received a U.S.S.G. § 2B3.1(b)(2)(C) enhancement
for brandishing, displaying, or possessing a firearm during the robbery when the
court sentenced him to a consecutive 60-month sentence for possessing a firearm.
Second, he argues that he should not have received U.S.S.G. §§ 2B3.1(b)(4)(A),
(b)(5) enhancements for a carjacking and kidnaping by an unidentified co-
conspirator because he could not reasonably foresee these events. Third, he argues
that he should not have received a U.S.S.G. § 2B3.1(b)(7)(C) enhancement for the
unknown quantity of money that was in vault at the time of the robbery. The
government appeals the district court’s refusal to impose a U.S.S.G. §
2B3.1(b)(2)(B) six-level enhancement for “otherwise using” a firearm during the
robbery on the ground that the actions of Cover's codefendants constituted more
than merely brandishing or displaying a firearm. We AFFIRM Cover's sentence on
all issues other than the § 2B3.1(b)(2)(C) enhancement. We REVERSE Cover's
sentence as to the § 2B3.1(b)(2)(C) enhancement and REMAND for application of
the § 2B3.1(b)(2)(B) enhancement for otherwise use of a firearm.
I. Background
2
On December 2, 1997, Cover and two accomplices (collectively “co-
conspirators”), armed with firearms, took control of a NationsBank (“the bank”) in
Miami Beach, Florida, and held captive fifteen people (customers and employees)
by force and threats of violence. See Presentence Investigation Report (“PSI”) ¶¶
3-4. The three co-conspirators each played different roles in the robbery, with
Cover forcing the tellers to empty their drawers into a bag and to open the vault,
co-defendant Andre Wilson (“Wilson”) acting as a lookout, and an unidentified
accomplice guarding the victims, who were forced at gunpoint to lie on the floor.
See PSI ¶ 4. Metro-Dade Police officers, responding to a silent hold-up alarm,
came to the bank, where they witnessed Cover and Wilson attempting to exit the
bank through the front door; Cover and Wilson were apprehended at the scene after
they reentered the bank and exited through a side door. See PSI ¶ 5. The
unidentified co-conspirator escaped by carjacking and kidnaping a motorist outside
the bank; the co-conspirator held the motorist at gunpoint. See PSI ¶ 6. The
motorist was released unharmed. See PSI ¶ 10. The police recovered the car and
bag of money, containing $12,740, taken by the co-conspirators. See PSI ¶ 10.
Cover pled guilty, without a plea agreement, to bank robbery (Count One)
and to using and carrying a firearm during and in relation to a crime of violence
(Count Two). See PSI § 1. The probation officer recommended that Cover be
given an offense level of 32 for Count One, with a base level of 20, see U.S.S.G. §
3
2B3.1(a); a two-level enhancement, because “the property of a financial institution
was taken,” U.S.S.G. § 2B3.1(b)(1); a five-level enhancement, because “a firearm
was brandished, displayed, or possessed,” U.S.S.G. § 2B3.1(b)(2)(C); a four-level
enhancement, because a “person was abducted . . . to facilitate escape,” U.S.S.G. §
2B3.1(b)(4)(A); a two-level enhancement, because “the offense involved
carjacking,” U.S.S.G. § 2B3.1(b)(5); and a two-level enhancement, because the
loss was more than $50,000 but not more than $250,000, see U.S.S.G. §
2B3.1(b)(7)(C); a two-level downward adjustment, for acceptance of
responsibility, see U.S.S.G. § 3E1.1(a); and a one-level downward adjustment, for
timely notification of intent to enter a plea of guilty, see U.S.S.G. § 3E1.1(b)(2).
See PSI ¶¶ 13-25. As to Count Two, § 924(c) and U.S.S.G. § 2K2.4(a) mandate
that Cover be given a sentence of “five years consecutive to any other term of
imprisonment imposed.” In an addendum to the PSI, the probation officer rejected
objections that Cover had made to the PSI, including his objections to the §
2B3.1(b)(7) enhancement for the amount of the “loss,” and to the §§
2B3.1(b)(4)(A) and 2B3.1(b)(5) enhancements for carjacking and kidnaping. See
Addendum to PSI at 1-3.1
1
Cover made other objections not raised on appeal which, accordingly, we will not
consider.
4
At Cover's sentencing hearing, the district judge addressed two objections
raised by Cover. First, the district judge rejected Cover's challenge to the
enhancements for carjacking and kidnaping on the ground that “it was foreseeable
to [the co-conspirators] when they walked into the bank that anything could
happen, including someone being abducted in order to facilitate the escape of one
of them.” R4-8. Second, after hearing testimony from two bank employees
regarding Cover's attempts to get employees to open the bank vault and the
probable amount of money in the vault, the district judge rejected Cover's
challenge to the § 2B3.1(7) two-level enhancement and found “that the
Government has shown by a preponderance of the evidence that there was at least
$100,000 in the vault on the day of the robbery.” R4-18. Cover never raised
before the district court his claim that enhancement pursuant to § 2B3.1(b)(2) is
inappropriate where Cover was also convicted of and sentenced for violating §
924(c).
The district judge rejected the government's objection to the
recommendation that Cover's offense level be enhanced by five levels, pursuant to
§ 2B3.1(b)(2)(C), for brandishing or displaying a firearm. The government argued
that Cover's use of his firearm amounted to more than mere brandishment or
displaying and, thus, that he should have received a six-level enhancement,
pursuant to § 2B3.1(b)(2)(B), for “otherwise use” of the firearm. R4-19. The
5
district judge said that she was “uncomfortable applying this additional one-point
enhancement” and that she would “decline to do so in absence of a clear
explanation from the Sentencing Commission as to what it intended.” R4-25.
Thus, she adopted the Probation Officer's recommendation that Cover receive a
total offense level of 32 for Count One. See R4-25. The guideline range for
Cover, with an offense level of 32 and a criminal history category of 2, is 135 to
168 months. Because of extenuating circumstances, including several letters
submitted by Cover's friends and families, the district court sentenced him to 135
months and then added the concurrent sentence of 60 months for Count Two for an
overall sentence of imprisonment for 195 months, followed by three years
supervised release, and a $200 assessment. See R4-33-34.
II. Analysis
In sentencing guidelines cases, we review for clear error a district court’s
factual findings and review de novo the district court's application of law to those
facts. See United States v. Jones, 32 F.3d 1512, 1517 (11th Cir. 1994). We review
for plain error rulings to which there was no objection at the district court. See
United States v. Antonietti, 86 F.3d 206, 208-09 (11th Cir. 1996).
Because the challenges raised by Cover and the government as to the §
2B3.1(b)(2) enhancement are related, we address Cover's other two challenges
separately and then discuss the § 2B3.1(b)(2) challenges together.
6
A. Sections 2B3.1(4)(A) and 2B3.1(5) enhancements for carjacking and
kidnaping
Cover argues that his sentence should not be enhanced under §§ 2B3.1(4)(A)
and 2B3.1(5) because it was not reasonably foreseeable that his unidentified co-
conspirator would escape by carjacking and kidnaping a motorist. Under U.S.S.G.
§ 1B1.3(a)(1)(B), a co-conspirator's sentence
shall be determined on the basis of . . . all reasonably foreseeable acts
and omissions of others in furtherance of the jointly undertaken
criminal activity . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course
of attempting to avoid detection or responsibility for that offense.
If the unidentified co-conspirator's2 carjacking and kidnaping of a motorist to avoid
capture by the police were “reasonably foreseeable,” then the enhancements were
appropriate. Whether a co-conspirator's act was reasonably foreseeable is a factual
finding reviewed for clear error. See United States v. Pessefall, 27 F.3d 511, 515
(11th Cir. 1994); United States v. Medina, 74 F.3d 413, 416 (2d Cir. 1996) (“The
factual findings that bear upon reasonable foreseeability are reviewed by this Court
for clear error.”). The government must show by a preponderance of the evidence
that the carjacking and abduction were reasonably foreseeable. See United States
v. Gallo, — F.3d —, —, No. 98-4381, slip op. (11th Cir. Nov. 17, 1999)
(discussing § 1B3.1 in relation to § 2D1.1(b)(2) firearm enhancement).
2
Cover does not dispute the claim that the abductor/carjacker was his co-conspirator.
7
We find that the district court did not clearly err in finding that the co-
conspirator's carjacking and abduction of the motorist were reasonably foreseeable.
As the district judge stated in the sentencing hearing:
A person who goes into a bank robbery with firearms and with other
people intending to do whatever is necessary to effect that robbery, as
the three of them showed themselves to be during the robbery, . . . I
would say that pretty much anything that happens under those
circumstances is foreseeable to the defendants, including Mr. Cover. .
. . I think it was foreseeable to them when they walked into the bank
that anything could happen, including someone being abducted in
order to facilitate the escape of one of them.
R4-8 (finding that enhancement for abduction was proper); see also id. (applying
same reasoning to find that enhancement for carjacking was proper). This
reasoning is sound and takes into account the circumstances surrounding the
carjacking and abduction, including the actions taken by the co-conspirators before
the arrival of the police triggered the unidentified co-conspirator's escape. See id.
Cover's argument that his co-conspirator's decision to escape the bank by
carjacking and abducting a motorist was not foreseeable because Cover had
brought his car to the bank to be used as the getaway car is unavailing.
“Reasonably foreseeable” has never been limited to actions that were expressly
agreed to by the co-conspirators. Rather, we have looked to the rationale found in
Pinkerton v. United States to find that an act is reasonably foreseeable if it is “'a
necessary or natural consequence of the unlawful agreement.'” United States v.
8
Martinez, 924 F.2d 209, 210 n.1 (11th Cir. 1991) (quoting Pinkerton v. United
States, 328 U.S. 640, 648, 66 S. Ct. 1180, 1184, 90 L.Ed 1489 (1946)); see also
Gallo, — F.3d at —, No. 98-4381, slip op. (noting with approval Martinez's
discussion of the Pinkerton definition of “reasonably foreseeable”). The fact that
the co-conspirators agreed to a plan that did not involve carjacking or abduction
does not preclude the district court from finding that carjacking and abduction were
reasonably foreseeable if “the original plan went awry” and the police became
involved. United States v. Molina, 106 F.3d 1118, 1121-22 (2d Cir. 1997)
(holding that district court erred in finding that shooting was not reasonable
foreseeable merely because the co-conspirators had agreed not to discharge their
firearms: “Even if Molina hoped that the original plan would be carried out and
that no shooting would occur, it was nonetheless reasonable for him to foresee that,
in an encounter between armed robbers and armed guards protecting an armored
car, a shooting was likely to occur.”). We affirm the §§ 2B3.1(4)(A) and 2B3.1(5)
enhancements.
B. Section 2B3.1(7)(C) enhancement for amount of money in bank vault
Section 2B3.1(7) enhancements address the issue of amount of loss incurred
by the victim (here, the bank); § 2B3.1(7)(B) applies where the amount of loss is
valued at more than $10,000 and less than $50,000, while § 2B3.1(7)(C) applies
where the amount of loss is valued at more than $50,000 and less than $250,000.
9
Here, it is undisputed that the amount of loss is more than $10,000, because the bag
of money taken contained more than $12,000. Cover argues that the district court
erred in including an estimated $100,000 from the bank vault in the amount of loss.
Valuation of loss is a factual finding reviewed for clear error. See United States v.
Calhoon, 97 F.3d 518, 530 (11th Cir. 1996);3 United States v. Johnson, 16 F.3d
166, 170 (7th Cir. 1994) (“The district court's assessment of the amount of loss is a
factual finding, which we will not disturb unless it is clearly erroneous.”). Cover
argues that the inclusion of any money from the bank vault was error because no
money was removed from it and that, even it was appropriate to include that
money, the evidence as to the amount of money in the vault was too speculative.
Cover's first argument has no merit. As the commentary to U.S.S.G. §
2B1.1 makes clear, “[i]n the case of a partially completed offense . . . the offense
level is to be determined in accordance with the provisions of § 2X1.1. . . .”
Comment. (n.2) (1998); see also U.S.S.G. § 2B3.1, comment. (n.3) (1998)
(referring to commentary to § 2B1.1 for valuation of loss). Under § 2X1.1, a
defendant who partially completed an offense (i.e., only seized part of the money)
will be held liable for the entire offense (i.e., the entire amount of money that the
3
Calhoon addresses valuation of loss under U.S.S.G. § 2F1.1, which, like § 2B3.1, refers
to the valuation of loss principles embodied in U.S.S.G. § 2B1.1 and the commentary to § 2B1.1.
97 F.3d at 530 (noting that the commentary with § 2F1.1 refers to § 2B1.1); see also U.S.S.G. §
2B3.1, comment. (n.3) (1998) (“Valuation of loss is discussed in the Commentary to § 2B1.1 . . .
.”).
10
defendant attempted to seize) if “the substantive offense was substantially
completed or was interrupted or prevented on the verge of completion by the
intercession of law enforcement authorities or the victim.” U.S.S.G. § 2X1.1,
comment. (n.4). See also Calhoon, 97 F.3d at 531 (finding that intended or
attempted loss would be included in sentencing determination where, but for the
interception of wrongdoing by an auditor, the defendant would have caused a
determinate amount of losses); United States v. Rosa, 17 F.3d 1531, 1550-51 (2d
Cir. 1994) (applying sentence for entire value of attempted offense where the
defendants “had completed all the acts they believed necessary to conclude the
substantive offense” and were stopped only by their arrest). The district court
heard testimony showing that Cover entered the bank vault area with the teller with
the key and the teller with the vault's combination. See R4-11-12; PSI ¶ 4
(identifying Cover as the defendant who entered the bank vault area). These two
tellers were the only people needed to open the vault in order to take the funds
inside. See R4-12. The key was about to inserted into the lock, see R4-12, to be
followed by entry of the combination, when “someone yelled 'The police are
here,'” which caused Cover to leave the bank vault area, see R4-11. In light of
these facts, we find that the district court did not err in finding that Cover had
completed all of the necessary acts to seize the funds in the bank vault and that, but
for the intervention of the police, he would have successfully seized those funds.
11
Accordingly, it was not clear error for the district court to include the funds in the
bank vault as part of the amount of loss.
Cover's second argument likewise fails. Under the sentencing guidelines,
“the loss need not be determined with precision. The court need only make a
reasonable estimate of the loss, given the available information.” U.S.S.G. §
2B1.1, comment. (n.3) (1998). Amount of loss must be proven by a preponderance
of the evidence. See United States v. Kimmons, 965 F.2d 1001, 1011 (11th Cir.
1992), vacated on other grounds, 508 U.S. 902, 113 S. Ct. 2326, 124 L. Ed. 2d 239
(1993), reinstated, 1 F.3d 1144 (11th Cir. 1993). In Kimmons, we upheld a district
court's finding that the amount of loss from an attempted robbery of an armored car
amounted to approximately $500,000 based on “[t]estimony from managers of
[the] intended victim corporations [that] established that hundreds of thousands to
millions of dollars were carried on the armored cars during the specific routes that
the appellants had targeted.” Id. at 1011. Similarly, in this case, the district court
heard evidence from a bank manager regarding the amount in the bank vault at the
beginning of the day of the robbery and regarding the estimated cash flow of that
day. See R4-14-15. After giving that testimony, and being admonished not to
speculate, the bank manager testified that the absolute minimum that was in the
bank vault at the time of the robbery, the “no way it was below X number even if it
was an unusual day” amount, R4-15, was $100,000, see R4-16. Based on this
12
testimony, the district court did not clearly err in finding that there was at least
$100,000 in the bank vault at the time of the robbery. Accordingly, we affirm the
application of the § 2B3.1(7)(C) two-point enhancement.4
C. Section 2B3.1(b)(2)(C) enhancement for brandishing, displaying, or
possessing a firearm
Cover and the government both challenge the district court's decision to
enhance Cover's sentence pursuant to U.S.S.G. § 2B3.1(b)(2)(C). Cover argues
that any enhancement pursuant to §2B3.1(b)(2) is inappropriate in light of his
conviction and sentence for violation of 18 U.S.C. § 924(c). The government
argues that the district court was correct to apply a § 2B3.1(b)(2) enhancement but
that it was incorrect to apply the five-point enhancement found in § 2B3.1(b)(2)(C)
for brandishing, displaying, or possessing a firearm instead of the six-point
enhancement found in § 2B3.1(b)(2)(B) for “otherwise us[ing]” a firearm. Because
we reject Cover's argument but agree with the government, we reverse Cover's
sentence as to the § 2B3.1(b)(2)(C) enhancement and remand to the district court
for application of the § 2B3.1(b)(2)(B) enhancement.
1. Cover's challenge
4
We also note that the district court need only have found that the bank vault contained
approximately $37,506 to justify application of the extra point enhancement. It is undisputed that
the paper bag contained at least $12,495, see R4-14 ($12,495); PSI ¶ 8 ($12,740). For§ 2B3.1(7)(C)
to apply, the amount of loss need only be greater than $50,000. No witness, on direct or cross
examination, ever stated that there was any possibility that the amount of money in the bank vault
at the time of the bank robbery could have been less than $37,506.
13
Because Cover's challenge to his § 2B3.1(b)(2) enhancement was not raised
in the district court, we review it for plain error. Antonietti, 86 F.3d at 208-09.
“To find reversible error under the plain error standard, we must conclude that (1)
an error occurred, (2) the error was plain, and (3) the error affected substantial
rights.” United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998). We will
find error if it “is clear under current law'” or if “the ruling in question is clearly
contrary to the law at the time of appeal.” Id. at 1342-43 (quoting United States v.
Olano,507 U.S. 725, 733-34, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993);
citing Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 1549, 137
L. Ed. 2d 718 (1997)).
Under U.S.S.G. § 2K2.4, the sentencing provision applicable to § 924(c):
Where a sentence under this section is imposed in conjunction with a
sentence for an underlying offense, any specific offense characteristic
for the possession, use, or discharge of an explosive or firearm (e.g., §
2B2.1(b)(2)(A)-(F) (Robbery)) is not to be applied in respect to the
guideline for the underlying offense.
U.S.S.G. § 2K2.4, comment. (n.2) (1998). This provision prevents “double
counting,” see United States v. Washington, 44 F.3d 1271, 1280 (5th Cir. 1995),
i.e., the application of “enhancements for the defendant's possession of the weapon,
[where] punishment for possession of that weapon has been meted out in the
924(c) sentence.” United States v. Rodriguez, 65 F.3d 932, 933 (11th Cir. 1995).
The language from the sentencing hearing indicates that Cover's sentence was
14
enhanced for his own possession and use of the firearm already punished by the §
924(c) sentence. See, e.g., R4-19 (discussing the government's § 2B3.1(b)(2)
objection; noting that the objection was based on Cover's actions in “brandishing a
firearm and threatening to kill someone, as the defendant did here with Claire
Langton”). To the extent that Cover's sentence was enhanced solely based on his
possession of his own use of that firearm, the district court did err. See United
States v. Rodgers, 981 F.2d 497, 500-01 (11th Cir. 1993).
However, we find that this error was harmless and, thus, did not affect
Cover's substantial rights because an alternative ground exists for affirming the
application of a § 2B3.1(b)(2) enhancement. See United States v. Hernandez, 160
F.3d 661, 670 (11th Cir. 1998) (“To find harmless error, we must determine that
the error did not affect the substantial rights of the parties.”; finding that error in
applying upward departure based on a mere list of arrests was harmless where a
correct calculation of the defendant's criminal history category would have caused
the defendant to receive the same sentence); see also Bonanni Ship Supply, Inc. v.
United States, 959 F.2d 1558, 1561 (11th Cir. 1992) (“We note that this court may
affirm the district court where the judgment entered is correct on any legal ground
regardless of the grounds addressed, adopted or rejected by the district court.”).
While § 2K2.4 does bar double counting, it does not bar “enhancement for a
separate weapons possession, such as that of a co-conspirator” where the defendant
15
was convicted and sentenced for his own possession or use of a firearm.
Rodriguez, 65 F.3d at 933 (emphasis added); see also Kimmons, 965 F.2d at 1011
(permitting enhancement for co-conspirator's use or possession of a firearm despite
conviction for violation of § 924(c)). As the Fifth Circuit noted, where the
defendant and a co-conspirator are both armed, “an enhancement is entirely proper
because two armed men pose a much greater threat to public safety than does one.”
Washington, 44 F.3d at 1281 (citing Kimmons). Here, it is undisputed that both of
Cover's co-defendants possessed firearms during the robbery. Accordingly, we
find that it was appropriate for the district court to apply a § 2B3.1(b)(2)
enhancement.
2. The government's challenge
The government's challenge addresses the scope of the enhancement, i.e.,
whether the co-conspirators merely “brandished, displayed, or possessed” their
firearms or whether they “otherwise used” their firearms during the crime.
U.S.S.G. §§ 2B3.1(b)(2)(B), (C). In deciding not to give the six-point
enhancement for “otherwise use” of a firearm, the district court rested on a legal
interpretation of § 2B3.1(b)(2)(B). See R4-25. We review de novo the district
court's interpretation of the Sentencing Guidelines. See United States v. Cook, 181
F.3d 1232, 1233 (11th Cir. 1999); United States v. Orozco, 121 F.3d 628, 629
(11th Cir. 1997).
16
Under the Guidelines, “otherwise used” means “that the conduct did not
amount to the discharge of a firearm but was more than brandishing, displaying, or
possession a firearm or other dangerous weapon,” while “brandished” means ““that
the weapon was pointed or waved about, or displayed in a threatening manner.”
U.S.S.G. § 1B1.1, comment. (n.1(g), 1(c)) (1998); see also U.S.S.G. § 2B3.1,
comment. (n.1) (1998) (referring to § 1B1.1 commentary in defining “otherwise
used” and “brandishing”)). In United States v. Wooden, we held that an implicit
threat against a specific person which included “pointing and holding a semi-
automatic weapon one-half inch from his victim's head” amounted to “otherwise
use” of the firearm. 169 F.3d 674, 676-77 (11th Cir. 1999). Judge Hill of this
court, sitting by designation on the First Circuit, relied on several cases, including
Wooden, to find that “it was the specific rather than the general pointing of the gun
that elevated its use from mere 'brandishment' to 'otherwise used.'” United States v.
LaFortune, 192 F.3d 157, 161 (1st Cir. 1999). We agree with this definition and,
like the majority of courts that have considered the question, find that the use of a
firearm to make an explicit or implicit threat against a specific person constitutes
“otherwise use” of the firearm.5 See, e.g., id. at 161-62 (“A general, or even
pompous, showing of weapons, involving what one would consider an arrogant
5
We look to cases involving other dangerous weapons because the “brandishment” and
“otherwise used” is the same for firearms and dangerous weapons. See LaFortune, 192 F.3d at 161
n.11.
17
demonstration of their presence, constitutes the generalized warning that these
weapons may be, in the future, used and not merely brandished. Altering this
general display of weaponry by specifically leveling a cocked firearm at the head
or body of a bank teller or customer, ordering them to move or be quiet according
to one's direction is a cessation of 'brandishing' and the commencement of
'otherwise used.'”) (emphasis added); United States v. Taylor, 135 F.3d 478, 483
(7th Cir. 1998) (“As for Charles's use of the gun, we conclude that poking it into
Unruh's back was at least as serious as leveling a dangerous weapon at someone's
head or pointing it at a specific person without any physical contact. We have
already found that the latter behavior constitutes 'otherwise using' the dangerous
weapon within the meaning of § 2B3.1(b)(2)(D).”) (emphasis added); United
States v. Gilkey, 118 F.3d 702, 706 (10th Cir. 1997) (“The facts of the case at bar,
which include actual, physical seizing of the specific victim, the simultaneous
pointing of the weapon at the victim, and the forced movement of the victim,
indicate specific rather than general pointing of the gun. It does not matter whether
the gun itself actually touched the victim.”; affirming district court's enhancement
for “otherwise use” of a dangerous weapon) (emphasis added); United States v.
Elkins, 16 F.3d 952, 953-54 (8th Cir. 1994) (“We reject the invitation to conclude
that placing a knife against the throat of an innocent bystander to facilitate
cooperation with a robbery demand is not 'use' of a dangerous weapon for purposes
18
of section 2B3.1(b)(2).”) (emphasis added); United States v. Johnson, 931 F.2d
238, 240 (3d Cir. 1991) (“[W]hen a defendant did not simply point or wave about a
firearm, but actually leveled the gun at the head of the victim at close range and
verbalized a threat to discharge the weapon, the conduct is properly classified as
'otherwise using' a firearm.”) (emphasis added); see also United States v. De La
Rosa, 911 F.2d 985, 993 (5th Cir. 1990) (finding that brandishing of firearm
combined with use of threats “operates to bring this conduct within the orbit of
'otherwise used.'”). But see United States v. Matthews, 20 F.3d 538, 554 (2d Cir.
1994) (holding that fact that robbers issued explicit threats while “brandish[ing]
and point[ing their firearms] menacingly” was not sufficient to
constitute“otherwise use” of the firearm).6 Here, in addition to the fact that both of
Cover's co-conspirators held various persons at gunpoint, see PSI ¶ 4, it is
undisputed that the unidentified co-conspirator “escaped by carjacking and
kidnaping an unsuspecting motorist who was outside the bank. The victim was
held at gunpoint on the passenger side floorboard of the vehicle as the unidentified
individual fled the scene” PSI ¶ 6. We hold that the action of the unidentified co-
6
While it is clear that the Second Circuit disagrees with the line of cases that find that
specific threats or pointing of weapons is enough to finding “otherwise use” rather than mere
brandishment of the weapons, it is not clear that it would disagree with our conclusion that the
unidentified co-conspirator's use of a firearm to carjack and abduct a victim at gunpoint constitutes
“otherwise use.” See Matthews, 20 F.3d at 554 (suggesting that the court might find “that the
expressed threat to shoot one person in order to extort action from another goes beyond . . .
'brandishing.'”).
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conspirator in carjacking and abducting a motorist at gunpoint is sufficient to
constitute “otherwise use” of his firearm. Accordingly, we reverse the district
court's application of the § 2B3.1(b)(2)(C) five-point enhancement and remand for
application of the § 2B3.1(b)(2)(B) six-point enhancement.
III. Conclusion
We AFFIRM Cover's sentence as to all aspects other than the §
2B3.1(b)(2)(C) enhancement. We REVERSE the application of the §
2B3.1(b)(2)(C) and REMAND solely for the imposition of a § 2B3.1(b)(2)(B) six-
level enhancement in accordance with this opinion.
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