[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 13 2000
No. 99-12886
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 99-00027-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES JUSTIN MILLER,
a.k.a. Charles J. Miller,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Florida
_________________________
(March 13, 2000)
Before COX, MARCUS and WILSON, Circuit Judges.
MARCUS, Circuit Judge:
Charles Justin Miller, a federal prisoner, appeals his 78-month sentence for
armed bank robbery, 18 U.S.C. § 2113(a), (d), to be followed by three years of
supervised release, a fine of $1500, and a $100 special monetary assessment.
Defendant pled guilty to a one-count information charging him with armed robbery.
At the plea hearing, Defendant admitted to entering the First National Bank of Florida
in Pensacola, Florida, approaching a bank teller, displaying what looked like a bomb
(two red sticks with a fuse), lighting the fuse, and asking the teller if she knew what
“it” was (referring to the bomb-like object). Defendant then told the teller to give him
all of her money and not to include any dye packs. The teller complied, handing over
approximately $8,534. After Defendant was apprehended, law enforcement
discovered that the object which appeared to be a bomb actually was inert. Based on
these facts, the district court applied a four-level sentence enhancement under
U.S.S.G. § 2B3.1(b)(2)(D) for “otherwise us[ing]” a “dangerous weapon” during the
robbery.
On appeal, Defendant contends that the district court erred in enhancing his
offense level by four points under U.S.S.G. § 2B3.1(b)(2)(D). Specifically,
Defendant argues that the Sentencing Guidelines do not permit a four-level
enhancement for “otherwise us[ing]” an object which merely appeared to be a
“dangerous weapon.” Instead, Defendant claims that he should only have received
a three-level enhancement under U.S.S.G. § 2B3.1(b)(2)(E) for “brandishing,
displaying, or possessing a dangerous weapon.”
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We review de novo the district court’s application of the sentencing guidelines.
See United States v. Cook, 181 F.3d 1232, 1233 (11th Cir.1999). Because
Defendant’s challenge to his § 2B3.1(b)(2)(D) enhancement was not raised in the
district court, we review it only for plain error to avoid manifest injustice. See United
States v. Harness, 180 F.3d 1232, 1234 (11th Cir. 1999). Having reviewed the plea
and sentencing hearing transcripts, the presentence investigation report, all other
relevant pleadings, and the briefs of the parties, we hold that the district court did not
plainly err in finding that Miller “otherwise used” a “dangerous weapon” during the
commission of the offense, and therefore qualified for a four-level enhancement
pursuant to U.S.S.G. § 2B3.1(b)(2)(D).
Defendant’s appeal raises an issue of first impression in our circuit; namely,
whether a four-level sentence enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(D)
may be applied for “otherwise us[ing]” an object which appeared to be a “dangerous
weapon” during the commission of an attempted robbery. Under the Sentencing
Guidelines, a defendant may receive a four-level enhancement “if a dangerous weapon
was otherwise used,” U.S.S.G. § 2B3.1(b)(2)(D), or a three-level enhancement “if a
dangerous weapon was brandished, displayed, or possessed,” U.S.S.G. §
2B3.1(b)(2)(E). Application note 2 of the commentary to this Guideline explains that
“[w]hen an object that appeared to be a dangerous weapon was brandished, displayed,
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or possessed, treat the object as a dangerous weapon for the purposes of subsection
(b)(2)(E).” Id. In addition, application note 1(d) of Guideline 1B1.1, “Application
Instructions,” states, in the context of defining the term “dangerous weapon,” that
“[w]here an object that appeared to be a dangerous weapon was brandished, displayed,
or possessed, treat the object as a dangerous weapon.” Id.
Based on the plain language of this commentary, we have recognized that
objects which appear to be dangerous weapons should be treated for sentencing
purposes as if they actually were dangerous weapons. See United States v. Vincent,
121 F.3d 1451, 1455 (11th Cir. 1997) (finding that defendant who pressed unknown
object into victim’s side and intended that object appear as a dangerous weapon is
subject to an enhancement under section 2B3.1(b)(2)(E)); United States v. Shores, 966
F.2d 1383, 1387-88 (11th Cir. 1992) (per curiam) (holding that defendant who, during
commission of an attempted robbery, possessed a toy gun, which looked like an
authentic nine millimeter firearm and therefore appeared to be a dangerous weapon,
is subject to an enhancement under section 2B3.1(b)(2)(E)); see also United States v.
Wooden, 169 F.3d 674, 676 n.2 (11th Cir. 1999) (per curiam) (interpreting Vincent
to hold that “fake weapons are treated as equivalent to real ones for purposes of this
[§ 2B3.1(b)(2)(E)] offense level enhancement”); United States v. Koonce, 991 F.2d
693, 698 (11th Cir. 1993) (noting in dicta that where “BB gun looks like a real firearm
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and is perceived by the victim of a post office robbery” as a firearm, it is proper to
enhance sentence for use of “dangerous weapon” under section 2B3.1(b)(2)(E)). This
approach is consistent with the caselaw of our sister circuits. See, e.g., United States
v. Robinson, 20 F.3d 270, 277 (7th Cir. 1994) (finding that defendant who possessed
toy gun which appeared to be a dangerous weapon is subject to a section
2B3.1(b)(2)(E) sentence enhancement); United States v. Dixon, 982 F.2d 116, 121-24
(3d Cir.1992) (holding that defendant who wrapped his hand in towel to appear as a
dangerous weapon is subject to a section 2B3.1(b)(2)(E) sentence enhancement).
In light of the Guidelines’ clear commentary and our prior precedent with
respect to the treatment of objects which appear to be dangerous under U.S.S.G. §
2B3.1(b)(2)(E), we see no reason why a defendant who “otherwise use[s]” an object
which appears to be a dangerous weapon during an attempted robbery would not be
subject to a four-level enhancement under U.S.S.G. § 2B3.1(b)(2)(D). Defendant
argues that a defendant who otherwise uses an object which appears to be (but is not
in fact) a dangerous weapon may receive only a three-level enhancement for
brandishing, displaying, or possessing a dangerous weapon, U.S.S.G. §
2B3.1(b)(2)(E). This argument is illogical and would eviscerate the substantive
difference between 2B3.1(b)(2)(D) and 2B3.1(b)(2)(E) in cases where objects, which
appear to be (but are not in fact) dangerous weapons, are “otherwise used.” The
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difference between section 2B3.1(b)(2)(D) and section 2B3.1(b)(2)(E) is a difference
based on the seriousness of the charged criminal conduct. In essence, the Guideline
creates a “hierarchy of culpability for varying degrees of involvement” during a
criminal offense. Wooden, 169 F.3d at 675. Merely brandishing, displaying, or
possessing a dangerous weapon is subject to a three-level sentence enhancement. See
U.S.S.G § 2B3.1(b)(2)(E). However, if a defendant commits more serious conduct
and “otherwise use[s]” a dangerous weapon, she is subject to a four-level
enhancement. See U.S.S.G § 2B3.1(b)(2)(D). We recently have recognized this
difference in Wooden, noting that the term “otherwise 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.’” Id., 169 F.3d at 676
(quoting U.S.S.G § 1B1.1 application note 1(g)).
Defendant’s reading would eliminate the substantive difference recognized by
the Guidelines and our caselaw between “otherwise using a dangerous weapon” and
merely “brandishing, displaying, or possessing a dangerous weapon.” We believe the
better interpretation of U.S.S.G. § 2B3.1(b)(2) is to treat uniformly objects appearing
to be dangerous weapons as if they actually were dangerous weapons for sentence
enhancement purposes, thereby maintaining the integrity of the substantive difference
between section 2B3.1(b)(2)(D) and section 2B3.1(b)(2)(E). Under our reading,
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defendants who otherwise use an object which appears to be a dangerous weapon will
be subject to a four-level enhancement, see U.S.S.G § 2B3.1(b)(2)(D), and defendants
who merely brandish, display, or possess an object which appears to be a dangerous
weapon will be subject to a three-level enhancement, see U.S.S.G § 2B3.1(b)(2)(E).
The only remaining question then is whether the district court plainly erred in
concluding that Defendant otherwise used an object which appeared to be a dangerous
weapon in the commission of his offense. Defendant admitted at his plea colloquy
(and does not dispute on appeal) that he actually lit the fuse to the bomb-like object
during his attempted bank robbery. As the fuse was lit, Defendant also threatened the
bank teller, asking her if she knew what “it” [the bomb-like object] really was. On
appeal, Defendant does not argue that this conduct is mere brandishment or display
rather than otherwise use. In Wooden, we recently found that a defendant who
pointed a handgun at a specific victim, holding the gun one-half inch from the victim’s
forehead, properly received an enhancement for otherwise using a dangerous weapon,
see U.S.S.G § 2B3.1(b)(2)(D), because “his conduct was more than brandishing; it
was more than merely pointing or waving the weapon about in a threatening manner.”
Wooden, 169 F.3d at 676. We arrived at this conclusion by emphasizing that the
defendant’s conduct “involved an explicit threat,” rendering the conduct more than
simply brandishing or displaying a weapon. Wooden, 169 F.3d at 676; see also
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United States v. Johnson, 931 F.2d 238 (3d Cir. 1991) (holding that pointing weapon
at close distance constituted “otherwise use”); United States v. Hamilton, 929 F.2d
1126 (6th Cir.1991) (finding that placing knife against a victim’s throat amounted to
“otherwise use”). Here, we believe the issue is even clearer. Defendant did not just
display or brandish the fake bomb; he actually lit the fuse of the fake bomb while
explicitly threatening the bank teller. Indeed, lighting the fuse is like the cocking of
a handgun. Based on these facts, it was not plain error for the district court to
conclude that Defendant’s conduct constituted the “otherwise use” of a dangerous
weapon, qualifying Defendant for a four-level enhancement under section
2B3.1(b)(2)(D). Accordingly, we affirm.
AFFIRMED.
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