F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 19 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 03-3275
v. (D. Kansas)
STEPHEN CHED SANDERS, (D.C. No. 02-CR-40059-RDR)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **
Stephen Ched Sanders was convicted after a guilty plea of bank robbery in
violation of 18 U.S.C. § 2113(a) and sentenced to eighty-four months’
imprisonment. Mr. Sanders now appeals his sentence, arguing that the district
court erred in applying a three-level enhancement pursuant to USSG §
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
**
After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See F ED . R. A PP . P. 34(f); 10 TH C IR . R. 34.1 (G). The
case is therefore submitted without oral argument.
2B3.1(b)(2)(E) because he possessed a weapon during the robbery. We conclude
that the district court did not err and therefore affirm Mr. Sanders’s sentence.
I. BACKGROUND
On May 4, 2002, Mr. Sanders robbed the U.S. Bank in Topeka, Kansas. He
presented a teller with a note stating, “Hey, I have a gun. Stay calm. Just give
me your money and I won’t shoot. I got a friend outside with a automatic
weapon. Wait for 15 minutes before you call the police because after I leave my
friend is still outside. Sorry.” Rec. vol. III at 4, ¶ 9. After the teller gave Mr.
Sanders $2,049 in currency, he fled the bank on foot. A witness to the robbery
reported that Mr. Sanders had a bulge in his left front pants pocket, which the
witness believed to be a gun.
On May 7, 2002, Mr. Sanders turned himself in to the Topeka Police
Department. He admitted that he had committed the robbery, stating that “when
he handed the teller the demand note, he looked down at his waist, as if he had a
gun concealed on his person, but [that] he did not actually have a weapon when
he committed the robbery.” Id. at 5 ¶ 12.
Mr. Sanders was charged in a one-count indictment with bank robbery in
violation of 18 U.S.C. § 2113(a). The presentence report calculated the total
offense level at twenty-two, applying a three-level enhancement under USSG §
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2B3.1(b)(2)(E), because Mr. Sanders had possessed a “dangerous weapon,” as
that term is defined in the Guidelines.
Mr. Sanders objected to the enhancement. He argued that:
The plain language of the commentary to USSG §§ 2B3.1
. . . necessarily requires some “object” to support a finding
of possession of a dangerous weapon. . . .
. . . [I]n this case, there was no “object.” Mr.
Sanders did not conceal his hand to give the impression
that he possessed a weapon. The alleged bulge in his pants
pocket when he was outside the bank, running away, could
have been anything. However, it certainly was not a
weapon. Furthermore, the ability of the customer to even
see Mr. Sanders’ pants pockets is questionable, inasmuch
as the witnesses described the accused as wearing a long-
tailed shirt which hung outside his pants.
Rec. vol. I, doc. 96, at 3 (Sentencing Memorandum, filed Aug. 22, 2003).
The district court overruled Mr. Sanders’s objection. The court reasoned
that “[t]he combination of the note, the customer’s observation and [Mr.
Sanders’s] own statement following his arrest suggest that the defendant’s
objection must be denied. The record supports a finding that the defendant
created the impression that he had a dangerous weapon.” Rec. vol. I, doc. 100, at
3 (Memorandum and Order, filed Sept. 9, 2003).
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II. DISCUSSION
On appeal, Mr. Sanders argues that the district court erred in applying the
three-level enhancement under USSG § 2B3.1(b)(2)(E). He maintains that (1) the
court improperly relied on statements in the presentence report without requiring
the government to present evidence; and (2) even if reliance on the presentence
report was proper, the statements contained there are insufficient to support the
enhancement. Mr. Sanders’s first argument raises a legal issue regarding the
Federal Rules of Criminal Procedure, and we therefore engage in de novo review.
United States v. Kravchuk, 335 F.3d 1147, 1160 (10th Cir. 2003). However, his
second argument concerns the district court’s factual findings, which we may
overturn only if clearly erroneous. See United States v. Farrow, 277 F.3d 1260,
1268 (10th Cir. 2002).
A. Reliance on the Presentence Report
According to Mr. Sanders, “the court, in the absence of any evidence to
support the enhancement, found that the enhancement was applicable” by relying
on statements set forth in the presentence report. Aplt’s Br. at 6. Mr. Sanders
suggests that this was error that requires remand for resentencing.
This argument requires us to examine the district court’s fact-finding
obligations at sentencing under the Federal Rules of Criminal Procedure. Under
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Rule 32(i)(3)(B), “for any disputed portion of the presentence report or other
controverted matter” during sentencing, the court must “rule on the dispute or
determine that a ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in sentencing.” F ED .
R. C RIM . P. 32(i)(3)(B) (2003); see generally United States v. Pedraza, 27 F.3d
1515, 1530-31 (10th Cir. 1994) (discussing the prior version of this requirement,
then set forth in Rule 32(c)(3)(D)). This circuit “has repeatedly held that a
District Court may not satisfy its obligation . . . by simply adopting the
presentence report as its finding.” United States v. Guzman, 318 F.3d 1191, 1198
(10th Cir. 2003); Pedraza, 27 F.3d at 1530-31. However, “challenges [to] the
district court’s application of the guidelines to the facts and not the facts
themselves” do not trigger the district court’s fact finding obligations under Rule
32. United States v. Windle, 74 F.3d 997, 1002 (10th Cir. 1996).
Upon review of the record, we conclude that Mr. Sanders’s challenges to
the enhancement concerned the district court’s “application of the guidelines to
the facts and not the facts themselves.” Id. As a result, the district court did not
shirk its obligations under F ED . R. C RIM . P. 32 by relying on the presentence
report.
In particular, Mr. Sanders did not object to the statements in the
presentence report that he “handed the teller the demand note [and]. . . looked
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down at his waist, as if he had a gun concealed on his person” and that “[a]
witness to the robbery also reported that [Mr.] Sanders had a bulge in his left
front pants pocket, which he believed to be a gun.” Rec. vol. III, at 5 ¶ 12; see id
at 24 ¶ 122. Instead, Mr. Sanders argued that the statements set forth in the
presentence report were not legally sufficient to justify application of the
enhancement. See Rec. vol. I, doc. 96, at 1-5 (Defendant’s Sentencing
Memorandum, filed Aug. 22, 2003) (stating that “the presentence report writer
erroneously enhanced the base offense level by three points for possession of a
weapon” but not disputing specific facts).
Accordingly, the district court properly relied on the presentence report in
applying the enhancement. See Windle, 74 F.3d at 1002.
B. Three-level enhancement under § USSG § 2B3.1(b)(2)(E)
Mr. Sanders also contends that, even if the court did not err in relying on
the presentence report, the facts set forth there do not warrant application of the
three level enhancement under USSG § 2B3.1(b)(2)(E). We disagree.
Under § 2B3.1(b)(2)(E), the district court is required to apply a three-level
increase in the offense level for a robbery conviction if “a dangerous weapon was
brandished or possessed.” Under the commentary to this provision, “an object
shall be considered to be a dangerous weapon . . . if (A) the object closely
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resembles an instrument capable of inflicting death or serious bodily injury; or
(B) 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).” USSG § 2B3.1 cmt 2. The court applies an objective
standard, asking “‘whether a reasonable person, under the circumstances of the
robbery, would have regarded the object that the defendant brandished . . . or
possessed as a dangerous weapon.’” Farrow, 277 F.3d at 1268 (quoting United
States v. Hart, 226 F.3d 602, 607 (7th Cir. 2000)).
We have noted that many courts have applied an expansive definition of
what “objects” may constitute a dangerous weapon under this provision. Farrow,
277 F.3d at 1267. Those cases “are uniformly predicated on the underlying policy
that even the perception of a dangerous weapon has the potential to add
significantly to the danger of injury or death.” Id. We have thus concluded that a
defendant’s hand, placed in his pocket during the robbery, may constitute a
“dangerous weapon” under USSG § 2B3.1(b)(2)(E). Id. at 1268.
Here, the district court expressly found that Mr. Sanders “created the
impression that he had a dangerous weapon.” Rec. vol. I doc. 100, at 3. The
court cited “the combination of [Mr. Sanders’s] note [to the teller], the customer’s
observation [of the bulge in Mr. Sanders’s pocket], and [Mr. Sanders’s] own
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statement following his arrest.” Id. In light of the statements in the presentence
report, we conclude that, even though no one in the bank observed an actual
weapon, and the customer’s opportunity to observe a bulge in Mr. Sanders’s
pocket may have been limited, the district court did not clearly err in finding that
the witnesses to the robbery had a reasonable perception that Mr. Sanders
possessed a dangerous weapon.
III. CONCLUSION
Accordingly, we AFFIRM Mr. Sanders’s sentence.
Entered for the Court,
Robert H. Henry
Circuit Judge
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