United States v. Robert Joseph Souther

KING, Circuit Judge,

dissenting:

In the course of carrying out two bank robberies, Robert Souther handed bank tellers a note that read: “I have a gun. Be quiet.” Souther kept both of his hands in his coat pockets during these robberies, and it is undisputed that he did not actually possess a gun during either robbery. Based on these facts, the Sentencing Guidelines mandate a two-point increase in his base offense level for making a threat of death; however, these circumstances do not justify the imposition of a three-point increase for possessing a dangerous weapon. I would vacate Souther’s sentence and remand for imposition of the two-point increase.

I.

The United States Sentencing Guidelines incorporates a detailed scheme relating to the specific offense characteristics *633of a robbery. See United States Sentencing Commission, Guidelines Manual, § 2B3.1 (Nov. 1998). For example, the most egregious conduct — discharge of a firearm during a robbery — warrants a seven-point increase, while other uses of a firearm during a robbery result in a six-point increase. At the lower end of the scale, a robber receives a three-point increase if a “dangerous weapon” is “brandished, displayed, or possessed” and garners a two-point increase “if a threat .of death was made.”

A note representing that a robber has a gun — like the note utilized by Souther— plainly constitutes a threat of death, and Souther therefore deserved a two-point increase in his base offense level. See USSG § 2B3.1(b)(2)(F) (requiring two-point increase “if a threat of death was made”). The commentary to USSG § 2B3.1(b)(2)(F) illustrates this point through several examples, and each of the examples — including: “Give me the money or I will pull the pin on the grenade I have in my pocket,” “Give me the money or I will shoot you,” and “Give me the money or else (where the defendant draws his hand across his throat in a slashing motion)” — constitutes a “threat of death” for purposes of this guideline. See USSG § 2B3.1, comment, (n.6). Souther’s notes to the tellers in this appeal did nothing more or less than the Guideline’s examples; the note indicated possession of a weapon with a threat that the weapon would be used on the reader.

Indeed, we recently rendered a decision precisely on point. See United States v. Franks, 183 F.3d 335, 338 (4th Cir.1999). There, a bank robber, who was apparently unarmed, handed a note to a teller stating: “You don’t have to give me all your cash. No dye packs. I have a gun. I have nothing to lose.” Id. at 336. On those facts, we rightly concluded that “a reasonable person in the teller’s shoes would have been in fear for her life upon reading” the note. Therefore, we affirmed a two-point increase. Id. at 338.

Similarly, Souther’s notes representing possession of a gun plainly sought to put the fear of death into the tellers. Thus, those notes were sufficient to cause a reasonable teller to fear for her life, and a two-point increase is entirely warranted.

II.

On the other hand, the majority relies upon USSG § 2B3.1(b)(2)(E), under which a person receives a three-point increase “if a dangerous weapon was brandished, displayed, or possessed.” The commentary to this provision explains that “[w]hen an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, [the court should] treat the object as a dangerous weapon for the purposes of subsection (b)(2)(E).” See USSG § 2B3.1, comment, (n.2). Necessarily, the Government and the majority have relied on the outer bounds of USSG § 2B3.1(b)(2)(E), arguing that Souther’s hands — when placed inside his coat pockets — made it appear as though Souther possessed a dangerous weapon.

I have concluded that the scheme encompassed in USSG § 2B3.1 requires more. For example, if a robber possesses a toy gun, see United States v. Robinson, 20 F.3d 270, 277 (7th Cir.1994); presses a hard object into the side of a teller, United States v. Woods, 127 F.3d 990, 993 (11th Cir.1997); or waves a towel-draped hand at the tellers, United States v. Dixon, 982 F.2d 116, 124 (3d Cir.1992); then the specific characteristics of the defendant’s robbery justify a three-point enhancement. I have no quarrel with the majority’s conclusion that a hand can constitute an “object” for purposes of USSG § 2B3.1(b)(2)(E). However, merely resting one’s hands in one’s pockets is not enough; rather, the hand must objectively appear to be a dangerous weapon before the three-point increase is warranted.

Dixon, supra, illustrates the point. There, the robber had covered her hand with a towel and then waved the towel-covered hand around the bank at custom*634ers. 982 F.2d at 122. In those circumstances, the robber had made her hand appear to be a gun, and when the appearance of a gun was coupled with the menacing gestures, it was objectively reasonable to conclude that the robber’s hand appeared to be a firearm. Id. In this case, by contrast, both of Souther’s hands sat passively in his pockets, he made no indication that his coat pockets contained a gun, and he made no menacing or threatening gestures whatsoever.

Put simply, when a bank robber passes a note indicating possession of a gun, the Government will always be able to point to something on the robber that might be subjectively perceived to be a gun. Indeed, if nothing on a robber could appear to be a gun, then a note indicating possession of a gun would be dismissed as an absurdity. Thus, the majority’s rationale actually rises and falls on Souther’s note alone, in which he represented that he had a gun. See ante at 628-29 (“We hold that Souther’s concealed hand was an object that appeared — by virtue of his statement that he possessed a gun — to be a dangerous weapon.”) (emphasis added). However, in my view, a note representing possession of a gun is properly punished under the threat provision, USSG § 2B3.1(b)(2)(F), requiring the two-point increase. Under the rule adopted in this appeal, any note representing possession oNa gun will now be sufficient to justify the three-point increase under USSG § 2B3.1(b)(2)(E). This is not what the Guidelines anticipated.

The majority’s reliance upon the “policies” underlying USSG § 2B3.1 also is a telling red herring. First, it is telling that the majority must rely upon the “purpose” of this Guideline because the majority thereby illustrates that the plain language of the Guideline does not mandate a three-point increase. In that vein, to the extent that the scheme encompassed in the relevant provisions is ambiguous, the principle of lenity, which applies to the Sentencing Guidelines, would mandate a two-point, not three-point, increase. See United States v. Cutler, 36 F.3d 406, 408 (4th Cir.1994) (“[T]he rule [of lenity] may be applied in the context of the Sentencing Guidelines.”). Reliance on the “purpose” of this Guideline is also misleading and irrelevant: There is no doubt that risks inhere when a bank robber threatens a teller by alluding to possession of a firearm, and for that good reason, USSG § 2B3.1 sanctions this conduct. According to the Guidelines, however, there is a difference between a threat of death and the possession of an object that appears to be a dangerous weapon. Respect for the Guidelines mandates the imposition of a more severe three-point sanction only in response to the latter — possession of an object that appears to be a dangerous weapon.

For these reasons, I respectfully dissent.