IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 20, 2009
No. 07-10922
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JONAS M. DUNIGAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH and SOUTHWICK, Circuit Judges, Rodriguez,* District Judge.
JERRY E. SMITH, Circuit Judge:
Jonas Dunigan was found guilty of bank robbery. He appeals his convic-
tion and sentence, and we affirm.
*
Xavier Rodriguez, District Judge of the Western District of Texas, sitting by designa-
tion.
No. 07-10922
I.
Shortly after a bank, located in a Kroger grocery store, opened for busi-
ness, Dunigan entered it, jumped over the top of the counter, pointed a weapon
at bank employee Erica Dennis’s face, and demanded that she give him the mon-
ey. Witnesses said Dunigan wore a gray sweatshirt, a hat with a white bill, a
white bandana with a floral design, and athletic shoes. Dunigan got the money,
put it into a black nylon bag, and fled. A witness saw a white Dodge Avenger
with a license plate containing the letters “H” and “Q” leaving the area.
FBI Agent Kleinlein investigated the robbery. He searched the area sur-
rounding the store for a white Dodge Avenger, locating one with the license plate
H01XHM. Thinking the witness had misidentified the “Q,” he contacted the
Texas Department of Transportation (“TxDOT”) and found out that there was
no white Dodge Avenger registered in Texas with a “Q” in the license plate.
He then obtained a search warrant for the vehicle and the apartment of
its registered owner, Samantha Mattingly, who was Dunigan’s girlfriend. When
Kleinlein searched the apartment, he found a BB gun, a white hat, a gray sweat-
shirt, a white bandana, a brown Kroger shopping bag, Nike athletic shoes, and
two nylon bags, all similar to the items witnesses saw at the robbery. Dunigan’s
physical appearance was also similar to the descriptions given by witnesses.
Kleinlein testified about his investigation, including his call to TxDOT and
the material he learned from the witnesses. Dunigan objected to some of that
testimony as being hearsay, but the court overruled the objections. During the
closing statements, the prosecutor made several arguments, including that Duni-
gan was a gambler and was gambling during the robbery. Dunigan was convict-
ed and sentenced to seventy-eight months in prison.1
1
The guidelines range had been calculated to be 78 to 97 months. The presentence re-
port recommended that the offense level be increased pursuant to U.S.S.G. § 2B3.1(b)(2)(D) be-
cause Dunigan “otherwise used” a “dangerous weapon.”
2
No. 07-10922
II.
Dunigan alleges a procedural error occurred when the district court in-
creased his punishment four levels under U.S.S.G. § 2B3.1(b)(2)(D) because he
“otherwise used” a “dangerous weapon” during the robbery. He objects to the
enhancement on two grounds. First, he argues that his use of a BB gun during
the robbery was “brandish[ing]” a weapon rather than “otherwise us[ing]” a
weapon.2 Second, he contends the BB gun was not a “dangerous weapon.”
This court reviews sentencing decisions for abuse of discretion. United
States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008). The process of review is bi-
furcated: First, we ensure that the district court did not commit a significant
procedural error, and second, we consider the “substantive reasonableness” un-
der an abuse of discretion standard. See Gall v. United States, 128 S. Ct. 586,
597-98 (2007). A procedural error occurs where a court fails to calculate the
guidelines properly, treats them as mandatory, fails to consider 18 U.S.C.
§ 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails
adequately to explain the chosen sentence, including an explanation for any de-
viation from the guideline range. See id. at 597.
A.
We first examine whether the court abused its discretion when finding
that Dunigan “otherwise used” his gun rather than “brandished” it.
“Brandished” with reference to a dangerous weapon (including a
firearm) means that all or part of the weapon was displayed, or the
presence of the weapon was otherwise made known to another per-
son, in order to intimidate that person, regardless of whether the
weapon was directly visible to that person. Accordingly, although
the dangerous weapon does not have to be directly visible, the wea-
pon must be present.
2
The enhancement for “otherwise us[ing]” a weapon falls under U.S.S.G. § 2B3.1(b)-
(2)(D), and the enhancement for brandish[ing] a weapon falls under U.S.S.G. § 2B3.1(b)(2)(E).
3
No. 07-10922
U.S.S.G. § 1B1.1, cmt. n.1(c). “‘Otherwise used’ with reference to a dangerous
weapon (including a firearm) means that the conduct did not amount to the dis-
charge of a firearm but was more than brandishing, displaying, or possessing a
firearm or other dangerous weapon.” Id. cmt. n.1(I).3
This court addressed the distinction between “brandished” and “otherwise
used” in several cases, most notably United States v. Gonzales, 40 F.3d 735, 738-
40 (5th Cir. 1994).4 The current definitions in the guidelines, however, were
changed in 2000.
The former version stated that “brandished” means the weapon was point-
ed or waved about or displayed in a threatening manner. U.S.S.G. § 1B1.1 cmt.
n.1(c) (1998). “[U]nder the current Guidelines, the definition of ‘brandished’ can
mean as little as displaying part of a firearm or making the presence of the
firearm known ‘in order to intimidate.’” United States v. Bolden, 479 F.3d 455,
463 (6th Cir.), cert. denied, 128 S. Ct. 175 (2007) (citing U.S.S.G. § 1B1.1 cmt.
b.1(c) (2002)). Since these changes were made, we have examined the issue of
“brandished” versus “otherwise used” only once, in United States v. Williams,
520 F.3d 414, 423 (5th Cir.), cert. denied, 129 S. Ct. 111 (2008), in which we
adopted the interpretation of U.S.S.G. § 2B3.1(b)(2) contained in United States
v. Paine, 407 F.3d 958, 963-64 (8th Cir. 2005), and United States v. Orr, 312 F.3d
141, 144-45 (3d Cir. 2002).
The use of weapons in Williams, Paine, and Orr is similar to Dunigan’s use
of his BB gun. In Williams, the defendant pointed and swung a “shank” at a pol-
3
“Commentary in the Guidelines Manual that interprets or explains a guideline is au-
thoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or
a plainly erroneous reading of, that guideline.” United States v. Zuniga-Amezquita, 468 F.3d
886, 888 n.3 (5th Cir. 2006) (citation and brackets omitted).
4
See, e.g., United States v. Nguyen, 190 F.3d 656, 660-61 (5th Cir. 1999); United States
v. Fletcher, 121 F.3d 187, 198 (5th Cir. 1997), overruled on other grounds by United States v.
Cotton, 535 U.S. 625 (2002).
4
No. 07-10922
ice officer. Williams, 520 F.3d at 423. The court noted that the defendant did
“more than just display the shank or make its presence known in order to intimi-
date,” which would have been brandishing. Id. Instead, the defendant had “oth-
erwise used” the shank under U.S.S.G. § 2B3.1.5 Id. In Paine, the defendant
drew a weapon, pointed it at his target, put his finger on the trigger, and said,
“I mean it.” Paine, 407 F.3d at 964. The court held that the weapon had been
“otherwise used” instead of “brandished,” court noting that the 2000 amendment
“was intended to include at least some instances involving pointing a weapon
within the definition of ‘otherwise used.’” Id. Finally, in Orr, the defendant
pointed his gun at an assistant manager’s head and ordered her to empty money
into a bag. Orr, 312 F.3d at 145. The court found that this constituted a “specif-
ic threat” and thus fell under “otherwise used” rather than “brandished.” Id.
Examining Williams, Paine, and Orr, we can determine when it is appro-
priate to utilize “otherwise used” instead of “brandished.” The threat to the vic-
tim must be specific rather than general. See Williams, 520 F.3d at 423; Paine,
407 F.3d 964. Displaying a weapon without pointing or targeting should be clas-
sified as “brandished,” but pointing the weapon at any individual or group of in-
dividuals in a specific manner should be “otherwise used.”6 To the extent that
this new framework conflicts with our previous distinction between an “implicit”
5
Dunigan argues that Williams did not overrule our pre-2000 cases involving the defi-
nitions at issue, claiming that Williams reserved the question whether the new amendment
expands brandished’s definition. He points to the court’s position that the old definition for
brandishing is “arguably more expansive” than the new term. Williams, 520 F.3d at 423.
Dunigan is incorrect. Williams explicitly endorsed the new reading of § 2B3.1 that oth-
er circuits had already endorsed, and its dictum regarding the defendant’s sentencing level un-
der the pre-2000 guidelines did not alter that endorsement.
6
This differs from the pre-2000 distinction of “implicit” versus “explicit.” See Nguyen,
190 F.3d at 661. This distinction is “no longer supported by the current Guidelines definition
of ‘brandished.’” Bolden, 479 F.3d at 462.
5
No. 07-10922
and “explicit” threat,7 that framework no longer governs, in light of the amended
guideline and the caselaw interpreting it.
When Dunigan robbed the bank, he jumped over the counter, pointed the
BB gun in Dennis’s face, and shouted “shut the f*** up, b****” and “give me all
your money.” By pointing the gun at Dennis’s face, as opposed to merely dis-
playing it for intimidation purposes, Dunigan “otherwise used” the gun rather
than “brandished” it. The district court properly enhanced the sentence.
B.
We examine whether the court committed plain error in finding that Duni-
gan qualified for § 2B3.1(b)(2)(D) enhancement by using a “dangerous weapon.”
Under Gall, 128 S. Ct. at 597-98, if a defendant challenges the reasonableness
of his sentence, we review for abuse of discretion. If the defendant does not chal-
lenge the reasonableness in district court, however, we review for plain error.8
Although Dunigan challenged reasonableness in district court, he did not
do so on this specific ground. “Where the defendant has failed to object on spe-
cific grounds to the reasonableness of his sentence, thereby denying the court the
opportunity to identify and correct any errors, we review for plain error.” United
States v. Casper, 536 F.3d 409, 416 (5th Cir. 2008) (citation omitted), petition for
cert. filed (Nov. 10, 2008) (No. 08-7228). “An error is considered plain, or obvi-
ous, for purposes of this court’s plain error inquiry only if the error is clear under
existing law.” United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007) (cita-
tion omitted).
7
That distinction was established in Gonzales, 40 F.3d at 740.
8
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S.
Ct. 2959 (2008); see also United States v. Vargas-Rangel, No. 08-40099, 2008 WL 5232025, at
*1 (5th Cir. Dec. 16, 2008) (unpublished) (using plain error review where defendant failed to
challenge reasonableness in the district court and acknowledging the new standard in Gall).
6
No. 07-10922
Under Dunigan’s reading of U.S.S.G. § 2B3.1, a BB gun would be consid-
ered a dangerous weapon under § 2B3.1(b)(2)(E) but not § 2B3.1(b)(2)(D). He
claims that the commentarySSspecifically note 2SSshows a distinction between
the application of “dangerous weapon” to each provision. See § 2B3.1 cmt. n.2
(discussing dangerous weapon definition for (b)(2)(E) but not for (b)(2)(D)). Dun-
igan argues that because comment note 2 defines “dangerous weapon” for only
“brandished,” the same definition cannot be used for “otherwise used.”
Dunigan’s reading is flawed, however, because he ignores the previous
note in the commentary, which states that a variety of termsSSincluding danger-
ous weaponSSare “defined in the Commentary to § 1B1.1.” U.S.S.G. § 2B3.1 cmt.
n.1. This note makes no distinction between subsections (b)(2)(E) and (b)(2)(D),
and we follow this definition to determine whether Dunigan’s BB gun is a dan-
gerous weapon.9
The Commentary defines a dangerous weapon as
(i) an instrument capable of inflicting death or serious bodily injury;
or (ii) an object that is not an instrument capable of inflicting death
or serious bodily injury but (I) closely resembles such an instru-
ment; or (II) the defendant used the object in a manner that created
the impression that the object was such an instrument (e.g. a defen-
dant wrapped a hand in a towel during a bank robbery to create the
appearance of a gun).
U.S.S.G. § 1B1.1 cmt. n.1(D). Dunigan’s BB gun qualifies as a dangerous wea-
pon under either definition. When robbing the bank, he pointed the gun at Den-
nis’s face, using the gun as though it were a more dangerous firearm to threaten
the bank employees. This makes the gun a dangerous weapon. In addition, we
recognize that a BB gun is capable of inflicting “serious bodily injury.” The dis-
trict court did not commit plain error in finding Dunigan’s BB gun to be a “dan-
9
Other circuits examining the definition of dangerous weapon have also used this defi-
nition. See United States v. Bendtzen, 542 F.3d 722, 725 (9th Cir. 2008); United States v. Mil-
ler, 206 F.3d 1051, 1053 (11th Cir. 2000).
7
No. 07-10922
gerous weapon” under U.S.S.G. § 2B3.1(b)(2)(D).
III.
Dunigan contends that the district court erred when it admitted alleged
hearsay evidence from Agent Kleinlein when he stated that there are no Dodge
Avengers in Texas with the letter “Q” on the license plates. We review this evi-
dentiary ruling for abuse of discretion, and it is subject to the harmless error
rule. See United States v. Valentine, 401 F.3d 609, 616 (5th Cir. 2005).
Hearsay is “a statement, other than one made by the declarant while tes-
tifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” FED. R. EVID. 801(c). Federal Rule of Evidence 802 bars hearsay tes-
timony “except as provided by these rules or by other rules prescribed by the
Supreme Court . . . .” FED. R. EVID. 802.
The district court allowed Kleinlein’s testimony under Rule 803(7)’s
hearsay exception:
Absence of entry in records kept in accordance with the provisions
of paragraph (6). Evidence that a matter is not included in the mem-
oranda reports, records, or data compilations, in any form, kept in
accordance with the provisions of paragraph (6), to prove the nonoc-
currence or nonexistence of the matter, if the matter was of a kind
of which a memorandum, report, record, or data compilation was
regularly made and preserved, unless the sources of information or
other circumstances indicate lack of trustworthiness.
FED. R. EVID. 803(7). There was no need for the court to use this exception, how-
ever, because Kleinlein’s testimony was primarily not hearsay.10
Hearsay must be used “to prove the truth of the matter asserted,” and
10
At one point, the prosecution’s questioning of Kleinlein may have elicited an answer
that was based on inadmissible hearsay. To the degree, if any, that Kleinlein gave any im-
proper hearsay testimony, however, the decision to admit it was harmless error. See Abner v.
Kansas City S. R.R., 513 F.3d 154, 168 (5th Cir. 2008) (“Even presuming that the district
court’s admission of hearsay statements was in error, this error was harmless.”).
8
No. 07-10922
Kleinlein was testifying only to describe how he eventually located Dunigan, not
to prove that there were no Dodge Avengers with a “Q” on the license plate.
“Out-of-court statements offered for another purpose, e.g., providing background
information to explain the actions of investigators, are not hearsay.” United
States v. Johnston, 127 F.3d 380, 394 (5th Cir. 1997) (citation omitted). Testi-
mony describing an investigation’s background should not be needlessly objected
to on hearsay grounds where it goes only to how police investigated a crime rath-
er than to the truth of the matter asserted.
Dunigan argues that even if the testimony was not hearsay, it should be
excluded because “its probative value is substantially outweighed by the danger
of unfair prejudice . . . .” FED. R. EVID. 403. Even non-hearsay background infor-
mation must meet the requirements of Rule 403.11 Kleinlein’s testimony did not
violate Rule 403. It was highly probative, because it described the investiga-
tion’s time line and how the defendant was eventually located. The prejudice to
the defendant is limited, because it did not implicate his specific car in the
robbery but merely eliminated another class of cars. The district court did not
abuse its discretion in allowing the testimony.12
IV.
Dunigan objects to testimony concerning his weight. He did not object to
the testimony at trial, so we review for plain error. United States v. Acosta, 475
F.3d 677, 680-81 (5th Cir. 2007) (citation omitted). “[T]he plain-error exception
11
See Johnston, 127 F.3d at 394-95 (describing a case in which background testimony,
although not hearsay, was highly prejudicial).
12
Though the court overruled the objection on a different ground, “it is an elementary
proposition, and the supporting cases too numerous to cite, that this court may affirm the dis-
trict court’s judgment on any grounds supported by the record.” United States ex rel. Farmer
v. City of Houston, 523 F.3d 333, 338 n.8 (5th Cir.) (citation, brackets, ellipses, and internal
quotation marks omitted), cert. denied, 129 S. Ct. 570 (2008).
9
No. 07-10922
to the contemporaneous-objection rule is to be used sparingly, solely in those cir-
cumstances in which a miscarriage of justice would otherwise result.” Id. at 681
(citation and internal quotation marks omitted).
Kleinlein testified that the bank robber was “described as, I believe, 5'10"
from 140 to 180, I believe, but that description was consistent with the descrip-
tion of Mr. Dunigan on his driver’s license.” Dunigan contends that because this
information was gotten from witnesses to the crime, it was impermissible hear-
say. Again, however, Kleinlein was just using this description in reference to his
investigation, to explain why he eventually pursued Dunigan, not describing
Dunigan. This was “background information to explain the actions of investiga-
tors, []not hearsay,” and the court did not commit plain error. See Johnston, 127
F.3d at 394.
V.
Dunigan avers that the district court committed plain error by allowing
the prosecutor to discuss Dunigan’s risk-taking and gambling. “Improper prose-
cutorial comments constitute reversible error only where the defendant’s right
to a fair trial is substantially affected.” United States v. Holmes, 406 F.3d 337,
355-56 (5th Cir. 2005) (citation and internal quotations omitted). “A criminal
conviction is not to be lightly overturned on the basis of a prosecutor’s comments
standing alone. The determinative question is whether the prosecutor’s remarks
cast serious doubt on the correctness of the jury’s verdict.” Id. at 356 (citations
omitted). “This already narrow standard of review is further constrained by [the
defendant’s] failure to object; he bears the burden of demonstrating that the pro-
secutor’s statements constitute plain error.” Id. (citing United States v. Bernard,
299 F.3d 467, 488 (5th Cir. 2002), and FED. R. CRIM. P. 52(b)).
The prosecutor said of Dunigan that “[h]e’s a gambler, and gamblers take
risks, sometimes calculated risks and sometimes big risks, but he’s hoping that
10
No. 07-10922
by concealing his identity you’re going to cut him loose.” The prosecutor made
later comments characterizing Dunigan’s actions as a type of gamble. Dunigan
has not proven that these comments constitute plain error. Looking at the entir-
ety of the government’s closing argument, the gambling theme was not dominant
and does not cast doubt on the verdict.
Also, during the trial Dunigan had been portrayed as making a living by
gambling, and the prosecutor’s comments about Dunigan’s gambling could have
been referencing this argument. Numerous pieces of evidence were presented
at trial that tied Dunigan to the crime, including the model of his car, testimony
of the bank employees, and the articles of clothing and BB gun found at his
apartment after the robbery. The failure to strike the prosecutor’s gambling re-
marks was not plain error.
The judgment of conviction and sentence is AFFIRMED.
11