United States v. Clayton ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4300
LEROY CLAYTON, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-95-232)
Submitted: December 19, 1996
Decided: January 6, 1997
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Timika Shafeek, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Leroy Clayton, Jr., was convicted by a jury of aiding and abetting
the robbery of a post office, 18 U.S.C.A. § 2114 (West Supp. 1996),
18 U.S.C. § 2 (1994). He appeals his 78-month sentence, arguing that
the district court erred in enhancing his sentence for use of a danger-
ous weapon. USSG § 2B3.1(b)(2)(D).* We affirm.
Clayton's co-defendant, Lester Winstead, entered the post office
while Clayton waited in the car. Winstead carried an object covered
with a towel. He pointed it at the clerk and said,"I have a gun; I want
the money." When the clerk opened the cash drawer and began taking
out money, Winstead leaned over the counter and poked the clerk
with the object as he began grabbing bills. The clerk testified at Clay-
ton's trial that she glimpsed part of the object under the towel when
Winstead leaned over the counter and that it appeared to her to be a
gun barrel. The object carried by Winstead was not recovered. In his
statement to police, Clayton first said he did not know what Winstead
had carried; later he said it was a drywall hammer.
Winstead and Clayton were charged with robbery of a postal
employee with a dangerous weapon. Clayton was tried alone. The
jury found him guilty of the lesser included offense of aiding and
abetting the robbery of a postal employee. At sentencing, the district
court determined that a four-level enhancement was in order because
Winstead displayed an object which appeared to be a dangerous
weapon. We agree that the enhancement was properly made. Under
USSG § 2B3.1(b)(2)(D), a four-level increase is made if a dangerous
weapon was used. The term "dangerous weapon" is defined in Appli-
cation Note 1(d) to USSG § 1B1.1, which directs that when an object
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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was displayed or brandished which resembled an instrument capable
of causing death or serious injury, the object should be treated as a
dangerous weapon. Winstead's conduct was attributable to Clayton
because it was part of a jointly undertaken criminal activity and was
reasonably foreseeable to him. USSG § 1B1.3(a)(1)(B).
Clayton's argument on appeal is that the enhancement should be
disallowed because the jury acquitted him of armed robbery and
because the government did not prove that a firearm was present. He
concedes that acquitted conduct may be the basis for a sentencing
enhancement under Fourth Circuit precedent and asks for reconsidera-
tion of those decisions. See, e.g., United States v. Hunter, 19 F.3d
895, 897 (4th Cir. 1994). Even if we were so inclined, a panel of this
court may not overrule the decision of a prior panel. Brubaker v. City
of Richmond, 943 F.2d 1363, 1381-82 (4th Cir. 1991). The govern-
ment was not required to prove that the object carried was indeed a
firearm to obtain the enhancement.
Accordingly, the sentence is affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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