[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16440 ELEVENTH CIRCUIT
SEPTEMBER 3, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-80043-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY J. ANDREW,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 3, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Gregory J. Andrew 1 appeals his 60-month sentence, imposed after he pled
guilty to attempted bank robbery in violation of 18 U.S.C. §§ 2, 2113(a). On
appeal, he argues that the district court imposed a procedurally unreasonable
sentence because it applied a six-level increase pursuant to § 2B3.1(b)(2) of the
U.S. Sentencing Guidelines, based on his co-defendant Sergio Rivera’s “otherwise
use[]” of a firearm. Specifically, he contends that (1) the district court clearly erred
by finding that Rivera used a firearm during the offense, arguing that the evidence
was insufficiently speculative; and that (2) the district court erroneously concluded
that Rivera “otherwise used,” as opposed to “brandished,” the firearm, because he
never used it to make any kind of threat.
Both arguments raised by Andrew concern the application of the same
enhancement, Guidelines § 2B3.1(b)(2). In calculating a defendant’s robbery
offense level, Guidelines § 2B3.1(b)(2) provides, inter alia, that:
(B) if a firearm was otherwise used, increase by 6 levels;
(C) if a firearm was brandished or possessed, increase by
5 levels;
(D) if a dangerous weapon was otherwise used, increase
by 4 levels;
(E) if a dangerous weapon was brandished or possessed,
increase by 3 levels . . . .
U.S. S ENTENCING G UIDELINES § 2B3.1(b)(2)(B)-(E). The district court applied a
1
The record spells the Appellant’s name both “Andrews” and “Andrew.” On appeal, the
parties agree that the correct spelling of his surname is “Andrew.”
2
six-level increase based on Rivera’s “otherwise use[]” of a firearm.2 Andrew
contends that the district court should have applied one of the other enhancements
listed above. Significantly, Andrew does not argue that his co-defendant’s use of a
weapon was not reasonably foreseeable to him.
I. Firearm versus dangerous weapon
Andrew contends that the district court committed clear error by finding that
his co-defendant used an actual firearm during the attempted bank robbery.
Andrew argues that his co-defendant did not have a firearm, and therefore the
enhancement for a dangerous weapon pursuant to Guidelines § 2B3.1(b)(2)(D) or
(b)(2)(E) is appropriate. “[W]e review the factual findings underlying the district
court’s sentencing determination for clear error.” United States v. Williams, 527
F.3d 1235, 1247 (11th Cir. 2008).
The Guidelines provide that the term “[f]irearm” means a weapon that is
designed “to expel a projectile.” U.S. S ENTENCING G UIDELINES § 1B1.1 cmt.
n.1(G). The term “[d]angerous weapon,” however, encompasses “an object that is
not an instrument capable of inflicting death or serious bodily injury but (I) closely
resembles such an instrument; or (II) the defendant used the object in a manner that
created the impression that the object was such an instrument . . . .” Id. at § 1B1.1
2
The Probation Officer recommended a four-level enhancement pursuant to Guidelines §
2B3.1(b)(2)(D) for the “otherwise use[]” of a dangerous weapon.
3
cmt. n.1(D)(ii).
If a defendant challenges one of the factual bases for his sentence, the
government must prove the disputed fact by a preponderance of the evidence. See
United States v. Cataldo, 171 F.3d 1316, 1321 (11th Cir. 1999). The district court
may consider reliable hearsay evidence at sentencing, so long “as the evidence has
sufficient indicia of reliability, the [district] court makes explicit findings of fact as
to credibility, and the defendant has an opportunity to rebut the evidence.” United
States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (per curiam) (quotations
marks and citation omitted). In addition, “the appellate court shall give due regard
to the opportunity of the sentencing court to judge the credibility of the witnesses. .
. .” United States v. Glinton, 154 F.3d 1245, 1259 (11th Cir. 1998) (quotation
marks, alteration, and citation omitted).
Andrew’s argument that the evidence was speculative is without merit.
Federal Bureau of Investigation Special Agent John MacVeigh testified at
sentencing regarding the contents of the defendants’ post-arrest statements,
including Andrew’s later-recanted assertion that the gun was real, Andrew’s
assertion that the object resembled the real gun that Rivera owned and Rivera had
previously shown him, and Andrew’s assertion that Rivera, en route to the robbery,
expressed his desire to shoot a particular bank employee. Furthermore, the bank
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teller testified at sentencing that the object Rivera held during the robbery appeared
to be a real gun, and that Rivera, a former employee of the bank, had previously
boasted to her that he owned a gun. Surveillance photos further confirmed the
teller’s account of the robbery, and recent receipts from “Gator Guns” suggested
that Rivera purchased a firearm (or firearms) before the attempted bank robbery.
As such, Andrew has failed to establish that the district court clearly erred by
finding that Rivera had an actual firearm.
II. Otherwise used versus brandished or possessed
Andrew next contends that the district court erred in concluding that his co-
defendant’s conduct constituted “otherwise us[ing]” a firearm as opposed to
“brandish[ing]” a firearm. U.S. S ENTENCING G UIDELINES § 1B1.1 cmt. n.1(C),
(I). Our review is de novo. See United States v. Cover, 199 F.3d 1270, 1278 (11th
Cir. 2000) (per curiam).
“[O]therwise used” means that “the conduct did not amount to the discharge
of a firearm but was more than brandishing, displaying, or possessing a firearm or
other dangerous weapon.” U.S. S ENTENCING G UIDELINES § 1B1.1 cmt. n.1(I).
“Brandished” means “that all or part of the weapon was displayed, or 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 visible to that person.”
5
Id. at § 1B1.1 cmt. n.1(C). We have held that “the use of a firearm to make an
explicit or implicit threat against a specific person constitutes ‘otherwise use’ of
the firearm.” Cover, 199 F.3d at 1278.
The evidence showed that Rivera pointed his gun at the bank teller while
instructing her to retrieve the keys to the bank’s vault and while escorting her to
the vault area. Accordingly, Rivera did more than make the presence of his gun
known to the teller: he used it to obtain her compliance with his requests. The
district court correctly concluded that Rivera used the firearm to, at a minimum,
implicitly threaten the teller. Therefore, the district court properly increased his
offense level for “otherwise use[]” of a firearm.
III. Conclusion
Upon review of the record and consideration of the parties’ briefs, we
conclude that the district court correctly increased Andrew’s offense level by six
levels because his co-defendant “otherwise used” a firearm. Accordingly, we
affirm.
AFFIRMED.
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