United States v. Tilley ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4980
MICHAEL TILLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Charles E. Simons, Jr., Senior District Judge.
(CR-97-365-CES)
Submitted: August 25, 1998
Decided: September 21, 1998
Before HAMILTON and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jan S. Strifling, Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Dean A. Eichelberger, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Tilley appeals his 72 month sentence imposed after plead-
ing guilty to aiding and abetting armed bank robbery in violation of
18 U.S.C. §§ 2, 2113(a), 2113(d) (1994). On appeal, Tilley contends
the court erred in refusing to downwardly depart from the sentencing
guidelines' range due to aberrant behavior and in enhancing his sen-
tencing for using a firearm. Finding no reversible error, we affirm.
In November 1996, Tilley and Lamont Dozier drove to a bank in
North Augusta, South Carolina. Tilley entered the bank to determine
the security present. He and Dozier drove to a local hotel, where Til-
ley rented a room under a false name. They then went to local stores
and purchased gloves, a black mask, and black sweat pants. Tilley
provided Dozier with a .25 caliber firearm. They drove back to the
bank and Dozier entered the bank and robbed it. He threatened a teller
by placing the firearm to her head and telling her he was going to
"blow her head off."
At sentencing, Tilley moved for a downward departure based upon
aberrant behavior. See U.S. Sentencing Guidelines Manual § 5K2.0,
P.S. (1997). After hearing testimony from several character witnesses,
the court denied the motion. It is well settled that the denial of a
motion for downward departure is not reviewable on appeal unless the
district court misperceived its power to depart. See United States v.
Darby, 37 F.3d 1059, 1068 (4th Cir. 1994) (refusing to review district
court's denial of motion to depart for aberrant behavior).
The record of the sentencing hearing discloses that the court real-
ized its authority to depart downward in this case, however, rejected
the motion because Tilley's conduct in committing the offense was
not aberrant behavior. The court stated that "[t]he claim of aberrant
behavior in this case is inconsistent with the defendant's own admis-
sion. One doesn't plan aberrant behavior. It is just something that
happens . . . according to [Tilley's] own admission . . . he and Lonnie
Dozier had planned to rob another bank and talked about robbing."
(J.A. at 89). Accordingly, the district court's refusal to depart down-
ward is not subject to review.
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Tilley also contends the court erred by enhancing the offense level
six levels for using a firearm. See USSG§ 2B3.1(b)(2)(B) (1997).
The section permits an increase in the offense level for using a fire-
arm on a sliding scale depending on the circumstances surrounding
the use of the firearm. Tilley contends that the section is inapplicable
to him because he was only an aider and abettor, citing Bailey v.
United States, 516 U.S. 137 (1995), for the proposition that a defen-
dant is liable for using a firearm under 18 U.S.C.A.§ 924(c) (West
Supp. 1998) if the defendant actively employed the firearm. Bailey
has no relevance to § 2B3.1. In any event, Bailey did not alter aiding
and abetting liability for § 924(c) violations. See, e.g., United States
v. Wilson, 135 F.3d 291, 305 (4th Cir.), cert. denied, ___ U.S. ___,
66 U.S.L.W. 3758 (U.S. May 26, 1998) (No. 97-8750); see also
Barrett v. United States, 120 F.3d 900, 901 (8th Cir. 1997) (per
curiam); United States v. Malpeso, 115 F.3d 155, 166-67 (2d Cir.
1997), cert. denied, ___ U.S. #6D6D 6D#, 66 U.S.L.W. 3811, 66 U.S.L.W.
3815 (U.S. June 26, 1998) (No. 97-1404).
Finally, Tilley contends the court erred by enhancing his offense
level six levels instead of five. Section 2B3.1 permits a seven-level
enhancement if a firearm was discharged, a six-level enhancement if
a firearm was "otherwise used," and a five-level enhancement if a
firearm was "brandished, displayed, or possessed." Tilley does not
dispute the court's factual finding and concedes that case law supports
the six-level enhancement for similar conduct. See, e.g., United States
v. Gordon, 19 F.3d 1387, 1388 (11th Cir. 1994) (pointing a firearm
at a victim with an explicit threat is more than merely brandishing a
firearm); United States v. Seavoy, 995 F.2d 1414, 1422 (7th Cir.
1993) (same). We find this claim to be without merit.
Accordingly, we affirm Tilley's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
in the decisional process.
AFFIRMED
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