United States v. Brian Davis , 635 F.3d 1222 ( 2011 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 2010 Decided February 18, 2011
No. 10-3042
UNITED STATES OF AMERICA,
APPELLEE
v.
BRIAN DAVIS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00304)
John A. Briley Jr., appointed by the court, argued the cause
for the appellant.
L. Jackson Thomas II, Assistant United States Attorney,
argued the cause for the appellee. Ronald C. Machen Jr., United
States Attorney, Elizabeth Trosman, John P. Mannarino and
Angela G. Schmidt, Assistant United States Attorneys were on
brief. Roy W. McLeese III, Assistant United States Attorney,
entered an appearance.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Appellant
Brian Davis (Davis) pleaded guilty to two counts of bank
robbery in violation of 18 U.S.C. § 2113(a). He appeals his
sentence, which was increased because the district court found
that he had brandished a dangerous weapon within the meaning
of section 2B3.1(b)(2)(E) of the U.S. Sentencing Guidelines
(U.S.S.G. or Guidelines), based on testimony that during one of
the robberies, he put his hand into his backpack and told the
bank teller to “just give me the money.” On appeal, Davis
argues that his conduct did not amount to brandishing or
possessing a dangerous weapon. For the reasons set forth below,
we affirm.
I.
At about 5 p.m. on September 10, 2007 Brian Davis walked
into a bank in Northwest Washington, D.C. and handed the teller
a note that read, “I’m making a 2500-dollar withdrawal. No
alarms and no dye pack.”1 Sentencing Tr. at 5–6, United States
v. Davis, No. 07-304 (D.D.C. Mar. 9, 2010) (Tr. 3/9). The teller
began to count out the money but she worked slowly,
deliberately taking her time as she tried to figure out a way to
alert her coworkers. She miscounted the bills and had to start
over. Davis told her, “just give me the money.” Sentencing Tr.
at 28, United States v. Davis, No. 07-304 (D.D.C. Apr. 7, 2010)
(Tr. 4/7). Davis had placed a backpack on the ledge of the teller
window and, at that moment, he inserted his hand into the front
pocket up to his wrist. According to the teller’s testimony, Davis
gestured by “moving his hand in the backpack” that made it
seem “as if he were going to pull something out,” although he
1
The background facts are taken from Davis’s sentencing
hearings held on March 9, 2010 and April 7, 2010.
3
did not completely withdraw his hand. Tr. 3/9 at 7, 12. The teller
testified that Davis looked “nervous” and she interpreted his
gesture to mean “[t]hat if I didn’t hurry up, he would pull out a
weapon and people would get hurt.”
For his role in the events of September 10, 2007 and in a
later bank robbery, Davis pleaded guilty to two counts of bank
robbery in violation of 18 U.S.C. § 2113(a). The district court
held sentencing hearings on March 9, 2010, at which time the
Government offered the bank teller’s testimony, and on April 7,
2010. The district court sentenced Davis to two concurrent terms
of sixty-five months’ imprisonment and thirty-six months’
supervised release, as well as $4550 in restitution and $200 in
special assessments. At sentencing, the district court imposed a
three-level enhancement to Davis’s base offense level for
brandishing a dangerous weapon pursuant to
section 2B3.1(b)(2)(E) of the Guidelines, resulting in an offense
level of twenty-four and a sentencing range of sixty-three to
seventy-eight months.2 Absent the enhancement, Davis’s base
offense level would have been twenty-one, yielding a sentencing
range of forty-six to fifty-seven months. Davis filed a timely
notice of appeal.
II.
We review the district court’s sentencing decision under our
familiar three-part scheme: “ ‘Purely legal questions are
reviewed de novo; factual findings are to be affirmed unless
2
In addition to the enhancement under section 2B3.1(b)(2)(E),
Davis received a two-level enhancement because the property of a
financial institution was taken, another two-level enhancement
because of the later bank robbery and a three-level downward
adjustment for acceptance of responsibility.
4
clearly erroneous; and we are to give due deference to the
district court’s application of the guidelines to facts.’ ” United
States v. Day, 524 F.3d 1361, 1367 (D.C. Cir. 2008) (quoting
United States v. Goodwin, 317 F.3d 293, 297 (D.C. Cir. 2003))
(internal quotation marks omitted), cert. denied, 129 S. Ct. 295(2008).
Section 2B3.1(b)(2)(E) provides for an enhancement “if a
dangerous weapon was brandished or possessed” during a
robbery. The Guidelines Commentary3 explains that “an object
shall be considered to be a dangerous weapon” if “the defendant
used the object in a manner that created the impression that the
object was an instrument capable of inflicting death or serious
bodily injury (e.g., a defendant wrapped a hand in a towel during
a bank robbery to create the appearance of a gun).”4 U.S.S.G.
§ 2B3.1 cmt. n.2; see also id. § 1B1.1 cmt. n.1(D). An object is
“brandished” not only if “all or part of the weapon was
displayed” but also if “the presence of the weapon was
otherwise made known to another person, in order to intimidate
that person, regardless of whether the weapon was directly
3
We consider the Commentary “ ‘authoritative’ unless it violates
the Constitution or a federal statute, or ‘is inconsistent with, or a
plainly erroneous reading of, that guideline.’ ” United States v.
Johnson, 605 F.3d 82, 83 (D.C. Cir. 2010) (quoting Stinson v. United
States, 508 U.S. 36, 38 (1993)).
4
The definition of “dangerous weapon” as used in section
2B3.1(b)(2)(E) originates in the Commentary to section 1B1.1.
Compare U.S.S.G. § 2B3.1 cmt. n.2 with id. § 1B1.1 cmt. n.1(D). The
two definitions are meant to be interpreted the same way. See id.
§ 2B3.1 cmt. n.2 (defining “dangerous weapon” in manner
“[c]onsistent with Application Note 1(D)(ii) of § 1B1.1”).
5
visible to that person.” Id. § 1B1.1 cmt. n.1(C).
In this case, the Guidelines and accompanying Commentary
make it clear that a defendant need not in fact possess a weapon
to receive an enhancement pursuant to section 2B3.1(b)(2)(E).
Mimicking the possession of a gun, bomb, knife or other
weapon can “create[] the impression” that a defendant is
wielding “an instrument capable of inflicting death or serious
bodily injury” and thus be considered brandishing or possessing
a dangerous weapon under section 2B3.1(b)(2)(E). U.S.S.G.
§ 2B3.1 cmt. n.2. Other circuits have recognized that section
2B3.1(b)(2)(E) applies alike to armed robbers and robbers who
merely pretend to be armed. See, e.g., United States v. Hoffa,
587 F.3d 610, 615–16 (3d Cir. 2009) (defendant told bank teller,
“If I pull it out, I’ll use it” while holding hand in pocket); United
States v. Farrow, 277 F.3d 1260, 1261–62, 1268 (10th Cir.
2002) (defendant told bank teller “[d]on’t make a scene or I’ll
do something reckless” while holding hand in pocket); United
States v. Hart, 226 F.3d 602, 603, 608–09 (7th Cir. 2000)
(defendant carried package wrapped in brown paper bag and
gave bank teller note stating “I have a bomb in this box”);
United States v. Souther, 221 F.3d 626, 627–28 (4th Cir. 2000)
(defendant gave bank teller note stating “I have a gun” while
holding hand in pocket), cert. denied, 531 U.S. 1099 (2001);
United States v. Bates, 213 F.3d 1336, 1337–39 (11th Cir. 2000)
(defendant told bank teller “don’t make me hurt you” and
reached into waist band), cert. denied, 531 U.S. 1056 (2000);
United States v. Woodard, 24 F.3d 872, 872–74 (6th Cir. 1994)
(defendant pointed toy silver revolver at bank teller); United
States v. Taylor, 960 F.2d 115, 116 (9th Cir. 1992) (defendant
gave teller note stating “I have a gun in the waistband of my
pants” and pulled up shirt to reveal outline of gun handle
beneath undershirt). Indeed, the current version of the
6
Commentary all but codifies the holding in United States v.
Dixon, in which the Third Circuit upheld an enhancement under
section 2B3.1(b)(2)(E) where one of several bank robbers
draped a towel over her hand and “pointed menacingly” at the
bank employees.5 982 F.2d 116, 119, 121–24 (3d Cir. 1992),
cert. denied, 508 U.S. 921 (1993) and 508 U.S. 927 (1993); see
U.S.S.G. App. C amend. 601 (2001) (amendment to definition
of “dangerous weapon” in Commentary was “in accord with the
decision[] in . . . United States v. Dixon”). As Dixon explained,
“the Commission equates the image of a ‘dangerous weapon’
with its reality for purposes of sentence enhancement” because
both instill fear and have the potential to “trigger a violent and
even deadly response” by police, security guards or victims of
the crime. Dixon, 982 F.2d at 121, 123–24.6
Davis relies on the portion of the Guidelines’ definition of
“brandished” that states, “although the dangerous weapon does
not have to be directly visible, the weapon must be present.”
5
At the time Dixon was decided, the Commentary to section
2B3.1 provided: “When an object that appeared to be a dangerous
weapon was brandished, displayed, or possessed, treat the object as a
dangerous weapon . . . .” U.S.S.G. § 2B3.1 cmt. n.2 (1990); see United
States v. Dixon, 982 F.2d 116, 121 (3d Cir. 1992), cert. denied, 508
U.S. 921 (1993) and 508 U.S. 927 (1993).
6
Davis attempts to distinguish Dixon by pointing out that the
robber there admitted that she acted “with the intent of creating th[e]
belief” that she was holding a gun. 982 F.2d at 121. But section
2B3.1(b)(2)(E) does not require that a defendant admit his intent; the
court need only find that the defendant “created the impression” that
he was armed with a dangerous weapon, U.S.S.G. § 2B3.1 cmt. n.2,
an objective inquiry that depends on the “circumstances surrounding
the crime,” Dixon, 982 F.2d at 124.
7
U.S.S.G. § 1B1.1 cmt. n.1(C) (emphasis added). The Sentencing
Commission, however, added the phrase “the weapon must be
present” in the same amendment that incorporated Dixon’s
holding into the definition of “dangerous weapon.” U.S.S.G.
App. C amend. 601. Notwithstanding the language, the
Commission did not intend the phrase to require the actual
presence of a weapon, which reading would contradict its
express endorsement of Dixon. See Dixon, 982 F.2d at 124(upholding enhancement for brandishing dangerous weapon
notwithstanding robber had no weapon); U.S.S.G. App. C
amend. 601. Rather, the requirement that a “weapon must be
present” should be understood in relation to the definition of
“dangerous weapon” that follows the definition of “brandished”
in the Commentary to section 1B1.1. There, as under section
3B1.2, the definition of “dangerous weapon” includes any object
“the defendant used . . . in a manner that created the impression
that the object was” an “instrument capable of inflicting death
or serious bodily injury.” U.S.S.G. § 1B1.1 cmt. n.1(D). Even a
defendant’s hand may count as such an “object” when concealed
in a manner that creates the appearance of a dangerous weapon.
Dixon, 982 F.2d at 122 (robber’s “hand is an object” used to
“fool[] the bank tellers into thinking she had a dangerous
weapon”); see also Farrow, 277 F.3d at 1268 (“[A] concealed
hand may be an object which potentially triggers the three-level
enhancement under § 2B3.1(b)(2)(E).”); Souther, 221 F.3d at
628 (“[Defendant’s] concealed hand was an object that
appeared . . . to be a dangerous weapon.”); United States v.
Vincent, 121 F.3d 1451, 1455 (11th Cir. 1997) (“[A] 3 level
enhancement is proper when a robber uses a finger or some
other hard object to cause the victim to believe that it is a
dangerous weapon.”). The requirement that such a weapon “be
present” thus refers to both genuine and simulated weapons and
underscores the importance of the defendant’s apparent capacity
8
to do violence. See United States v. LaFortune, 192 F.3d 157,
161 (1st Cir. 1999) (to “brandish” means “to ‘advise’ those
concerned that [one] possesses the general ability to do violence,
and that violence is imminently and immediately available”),
cert. denied, 528 U.S. 1129 (2000).
Davis also disputes whether his conduct can be considered
“brandish[ing]” in light of our decision in United States v.
Yelverton, 197 F.3d 531 (D.C. Cir. 1999), cert. denied, 528 U.S.
1195 (2000). In Yelverton we upheld the application of a
different sentencing guideline providing for an enhancement if
“a dangerous weapon was used” during a kidnapping where the
kidnappers showed the victim’s mother a photograph depicting
the victim with a gun pointed at his head. 197 F.3d at 533;
U.S.S.G. § 2A4.1(b)(3) (emphasis added). Yelverton—where
there was a dangerous weapon pointed at a victim and where the
court applied a different sentencing guideline—is plainly
inapposite. Davis’s citation to Yelverton for the proposition that
mere possession of a weapon is not sufficient to support an
enhancement is likewise irrelevant. In any event, we recognized
in Yelverton that the term “used” is different from “brandished”
inasmuch as it refers to conduct that involves “more than
brandishing, displaying, or possessing a . . . dangerous weapon.”
197 F.3d at 533 (emphasis added) (quoting U.S.S.G. § 1B1.1
cmt. n.1(g) (1995)).
Davis further contends that the district court erred by
relying on the teller’s “subjective state of mind,” which reliance,
his counsel asserted at oral argument, posed the danger that “any
robbery could be converted into an armed robbery” based on the
sensitivities of a particular victim. Oral Argument Recording at
6:22, United States v. Davis, No. 10-3042 (D.C. Cir. Dec. 7,
2010). The record shows, however, that the district court applied
an objective standard in evaluating whether Davis created the
9
impression that his backpack contained a dangerous weapon—a
standard under which “the victim’s perception of the object may
be relevant to th[e] inquiry” but “is never controlling of the
outcome.” Hart, 226 F.3d at 607. After hearing the teller’s
testimony, the district judge stated, “I tried to put myself in the
position of that reasonable person in the bank, would I have
thought, under those circumstances, that the person had a
dangerous weapon? . . . [T]he answer is yes, I would have.” Tr.
4/7 at 5. Indeed, after Davis claimed in allocution that he was
just “unzipping the bag to put the money in,” the district judge
told Davis,
You know there’s a standard that I have to look at, and
that’s a reasonable person’s standard. Would a
reasonable person under those circumstances think that
you were just unzipping the bag to receive money or
that you were doing something in an effort to
communicate a threat to her?
Id. at 27–28.
Nor do we find fault in the way the district court assessed
the evidence. “Whether a reasonable person, under the
circumstances of the robbery, would have believed” that the
defendant brandished or possessed a dangerous weapon “is a
factual inquiry by the district court to be reviewed under a clear
error standard.” Hart, 226 F.3d at 608. As the district court
recognized, Davis’s gesture did not occur in isolation but in the
context of an ongoing bank robbery. Davis set the tone by
handing the teller a note written in stark imperative terms—“No
alarms and no dye pack”—and his gesture was accompanied by
a “nervous” expression and the command “just give me the
money,” both occurring at the point that the teller appeared to be
taking too much time to count out the cash. Tr. 3/9 at 5–6, 15;
10
Tr. 4/7 at 28. After considering the teller’s testimony—including
her answers to several questions posed by the court itself, see,
e.g., Tr. 3/9 at 13 (“Explain that gesture again.”); id. at 14 (“And
was his hand in that backpack or tell me where his hand was. . . .
[W]hat portion of that hand could you see?”); id. at 15 (“What
was his demeanor like at the time he was going for that
gesture . . . ?”); id. at 20 (“What was going through your mind
at the time he put his hand in that bag, though?”)—the court
found that a reasonable person would have believed Davis was
armed based on “the totality of everything,” including “not just
the movement of the hand” but “the expression as well, coupled
with the note.” Tr. 4/7 at 5. We find no clear error in the district
court’s finding.
For the foregoing reasons, we affirm the district court’s
sentencing judgment.
So ordered.