United States v. Brazinskas, Keith ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4181
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH E. BRAZINSKAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 05 CR 50030-1—Philip G. Reinhard, Judge.
____________
ARGUED MAY 11, 2006—DECIDED AUGUST 15, 2006
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Before POSNER, EASTERBROOK, and WOOD, Circuit Judges.
WOOD, Circuit Judge. After pleading guilty to bank
robbery in violation of 18 U.S.C. § 2113(a), Keith
Brazinskas was sentenced to 120 months in prison. In
calculating the advisory sentencing guideline range, the
district court added two levels to Brazinskas’s base level for
use of a minor to commit the offense. See U.S.S.G. § 3B1.4.
In this appeal, Brazinskas claims that the facts do not
support that enhancement. We conclude that the district
court’s factual findings were not clearly erroneous, that the
district court correctly decided that it did not matter
whether Brazinskas actually knew that his assistant was a
minor, and that the sentence is otherwise reasonable. We
therefore affirm.
2 No. 05-4181
I
On March 24, 2005, Brazinskas agreed to assist Cortney
Hall and Robert Eviston with a bank robbery they planned
to commit. That morning, Eviston, along with his 16-year-
old girlfriend, Cassandra Guevara, drove Brazinskas to
the Associated Bank in Rockford, Illinois. Eviston and
Brazinskas had included Guevara in the group in the hope
that this would help them to evade the police during the
robbery. Once at the bank, Brazinskas entered through the
front door, armed with a BB gun. He handed the bank teller
a plastic bag and told the teller to fill it with money. The
teller complied, placing $3,850 in the bag, $200 of which
was marked or “bait bills.” The teller also slipped in a red
ink dye pack. Brazinskas then walked back out the front
door and met Eviston at the back of the bank.
After leaving the bank, Brazinskas jumped into the trunk
of Eviston’s car, which Guevara had opened for him. At that
point, things began to go awry. As soon as the trunk was
closed, the dye pack exploded, staining the money (and
Brazinskas) with red ink and causing the trunk to fill with
smoke. Brazinskas yelled for Eviston to stop. When Eviston
heard him and got Brazinskas out of the trunk, Brazinskas
discarded the bag he had used in a nearby river.
Brazinskas, Eviston, and Guevara returned to Hall’s home,
where they tried to wash the red dye off of the money.
Eviston then buried some of the money in Hall’s back yard,
hoping to hide it from the police. With the aid of a confiden-
tial informant, who apparently was at Hall’s house during
this time, Brazinskas was arrested at 3:00 am the next day.
The grand jury indicted Brazinskas on one count of bank
robbery. Initially, he pleaded not guilty, but later he
changed his plea to guilty on July 22, 2005. According to
U.S.S.G. § 2B3.1, his base offense level was 20. The govern-
ment argued that a two-point increase in this level was
appropriate under U.S.S.G. § 2B3.1(b)(1), because the stolen
No. 05-4181 3
property belonged to a financial institution (which, the
government was careful to show, was insured at the
relevant time by the Federal Deposit Insurance Corpora-
tion). The government also argued that enhancements were
appropriate because Brazinskas had used a dangerous
weapon during the commission of the offense and because
he had used a minor to help him escape. With all of these
enhancements, as well as a three-level reduction for
acceptance of responsibility, Brazinskas’s final offense level
was 25 and his criminal history category was VI. This led to
an advisory sentencing guideline range of 110 to 137
months. At sentencing, the only adjustment that
Brazinskas challenged was § 3B1.4, which calls for a two-
level increase in offense level for the use of a minor. The
court agreed with the government that this was proper; in
the end, it selected a sentence within the guideline range of
120 months in prison, along with three years’ supervised
release and $1,712 in restitution. Brazinskas now appeals.
II
Even in this post-Booker world, we continue to review the
district court’s interpretation of the guidelines, including
§ 3B1.4, de novo. See United States v. Ramsey, 237 F.3d
853, 855 (7th Cir. 2001). The district court’s underlying fact-
findings, which it makes as part of its computation of the
advisory guideline range, are reviewed only for clear error.
Once the district court has pronounced its sentence, we
review the final sentence for reasonableness, see United
States v. Booker, 543 U.S. 220, 261 (2005).
Section 3B1.3 of the U.S. Sentencing Guidelines requires
a two-level increase in offense level where the “defendant
used or attempted to use a person less than eighteen
years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense.” The applica-
tion notes to the guideline explain that the phrase “used or
attempted to use” includes actions like “directing, com-
4 No. 05-4181
manding, encouraging, intimidating, counseling, training,
procuring, recruiting, or soliciting.” U.S.S.G. § 3B1.4 cmt.
n.1.
In Ramsey, we interpreted the word “use” in this guide-
line broadly to include those situations in which a defen-
dant’s “affirmative actions involved minors in his crim-
inal activities,” such as where a minor is a partner in a
criminal offense or when a minor’s role is subordinate to
that of the defendant. 237 F.3d at 859. We also indicated
that the defendant must know that the minor was partici-
pating in the crime: “a defendant who was not aware that
the minor was participating, and who had no contact with
the minor, probably would not be found to have used the
minor.” Id. at 860.
The district court’s finding that Brazinskas knew that
Guevara was involved with the crime was not clearly
erroneous. The court acknowledged that Brazinskas was not
the mastermind of the robbery plan, but that the group as
a whole “discussed that [the minor] would go with them,
and it’s obvious that [the minor] was in the car.” The court
also noted that Brazinskas knew that the group stood a
better chance of success if the getaway car contained both
a male and a female. Eviston admitted as much, when he
stated that Guevara “knew what was going on, and she was
with [Eviston] because [they] thought that if a guy and girl
were together, it would look good as [they] drove away.”
After Brazinskas left the bank, Guevara helped him to
climb into the trunk, and after the dye pack exploded, she
helped Brazinskas dispose of the bag. Later, she assisted
while the robbers counted the money.
This is ample evidence to support the enhancement. See,
e.g., United States v. Hodges, 315 F.3d 794, 802 (7th Cir.
2003) (fact that defendant “took possession of [the stolen
guns] with [the minor’s] assistance” was enough for § 3B1.4
enhancement to apply); United States v. Benjamin, 116 F.3d
No. 05-4181 5
1204, 1206 (7th Cir. 1997) (evidence establishing that minor
accompanied defendant to facilitate drug deal, told the
buyer where to meet, and listened to parties discuss the
terms of sale sufficiently proved that minor was a “partner”
for purposes of § 3B1.4). For the record, we add that there
is no support in this record for the proposition that
Brazinskas was a minor actor in the overall scheme. He was
the one who walked into the bank with a BB gun, gathered
the money, and left with it. We thus reject his argument
that his role was so small and incidental that he could not
have been among those who “used” Guevara.
Brazinskas also argues that the enhancement under
§ 3B1.4 does not apply, as a matter of law, unless the
defendant knew that his criminal activity involved the use
of a minor. Relying on dicta in United States v. Ceballos,
302 F.3d 679 (7th Cir. 2002), the district court concluded
that there was no such requirement in § 3B1.4. Instead, it
is necessary only that the defendant know that the per-
son is being used, as we noted earlier.
In Ceballos, we observed that the district court’s interpre-
tation of § 3B1.4 in that case “requires a finding that the
defendant had actual knowledge that the person he used to
commit the offense was a minor, and two other courts have
held that § 3B1.4 does not require such actual knowledge.”
302 F.3d at 697 (citing United States v. Gonzalez, 262 F.3d
867, 870 (9th Cir. 2001); United States v. McClain, 252 F.3d
1279, 1286 (11th Cir. 2001)). In Gonzalez, the Ninth Circuit
“decline[d] [the defendant’s] invitation to read a scienter
requirement into section 3B1.4 because the plain language
of the guideline does not require that a defendant have
knowledge that the individual is under eighteen years of
age for the enhancement to apply.” 262 F.3d at 870. The
Eleventh Circuit took the same approach, noting that a
scienter element would frustrate the purpose of § 3B1.4,
which is to protect minors from being used to commit
crimes. 252 F.3d at 1286. To the same effect, in United
6 No. 05-4181
States v. Lewis, 386 F.3d 475 (2d Cir. 2004), the court held
that Ҥ 3B1.4 does not require scienter in order to apply the
enhancement, that is, it is not necessary for the government
to show that a defendant had actual knowledge that the
person undertaking criminal activity was a minor.” Id. at
479. See also United States v. Thornton, 306 F.3d 1355,
1358-60 (3d Cir. 2002).
The position of these courts is consistent with the one
we took with respect to the statute making it unlawful for
a person eighteen years or older knowingly and intention-
ally to use or recruit a minor in connection with a drug
offense. See United States v. Smith, 223 F.3d 554 (7th Cir.
2000), construing 21 U.S.C. § 861(a)(1). In Smith, we held
that the government “does not have to prove that the
defendant . . . knew that the person was under the age of
18.” 223 F.3d at 566. Like the Eleventh Circuit, we con-
cluded that a scienter requirement would “merely encour-
age[ ] leaders of organizations . . . to blind themselves to the
ages of the youths with whom they deal” and frustrate the
legislative purpose to protect juveniles. United States v.
Frazier, 213 F.3d 409, 419 (7th Cir. 2000). The same
rationale applies with equal force here. We therefore
join our sister circuits in holding that there is no scienter
requirement in § 3B1.4.
The judgment of the district court is AFFIRMED.
No. 05-4181 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-15-06