F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 2 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-3316
v.
DEANDRE L. GILKEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 96-CR-10042)
Submitted on the briefs:
Jackie N. Williams, United States Attorney, and Montie R. Deer, Assistant United
States Attorney, Wichita, Kansas, for Plaintiff-Appellee.
Michael G. Katz, Federal Public Defender, and Susan L. Foreman, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This court therefore
honors the parties requests and orders the case submitted without oral argument.
Appellant DeAndre L. Gilkey appeals the sentence rendered by the United
States District Court for the District of Kansas following his 1996 conviction for
aiding and abetting Michael Peach in the commission of robbery in violation of
18 U.S.C. §§ 2 and 1951. This court exercises jurisdiction pursuant to 28 U.S.C.
§ 1291 and affirms.
Gilkey argues that the district court erred twice. First, he argues that the
court erred by imposing a four-level enhancement to his base offense level under
United States Sentencing Guideline (“U.S.S.G.”) § 2B3.1(b)(2) on the grounds
that a dangerous weapon was “otherwise used” in the robbery. Second, he argues
that the court miscalculated his criminal history in assessing too many points for a
juvenile sentence of confinement, contrary to U.S.S.G. § 4A1.2(d)(2)(A).
Appellant’s counsel below failed to lodge a specific objection based upon
either of the issues now presented for the first time on appeal. Normally, such
failure precludes appellate review. See United States v. Ivy, 83 F.3d 1266, 1294
(10th Cir. 1996). However, as this court has stated, “[W]e recognize a narrow
exception and review a legal question involving application of the sentencing
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guidelines for plain error.” United States v. Ciapponi, 77 F.3d, 1247, 1252 (10th
Cir.), cert. denied, 116 S. Ct. 1839 (1996); see Fed. R. Crim. P. 52(b). “In order
to evoke this exception, ‘the error must be particularly egregious, as well as
obvious and substantial,’ and we will apply it ‘solely in those circumstances in
which a miscarriage of justice would otherwise result.’” Ivy, 83 F.3d at 1295
(quoting United States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir. 1991)).
Factual disputes not raised below are waived. Ciapponi, 77 F.3d at 1252.
I. DANGEROUS WEAPON “OTHERWISE USED”
U.S.S.G. § 2B3.1 provides enhancements for various uses of a “firearm” or
a “dangerous weapon,” as follows:
(A) If a firearm was discharged, increase by 7 levels; (B) if a firearm
was otherwise used, increase by 6 levels; (C) if a firearm was
brandished, displayed, 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, displayed, or possessed, increase
by 3 levels; . . .
U.S.S.G. § 2B3.1(b)(2).
The district court imposed a four-level enhancement under part (D), which
requires that a dangerous weapon was “otherwise used.” Id. Gilkey argues that
the court’s findings reflect that a weapon was “brandished,” and that the court
thus should have imposed a three-level enhancement under part (E).
A dangerous weapon was “otherwise used” by an individual when his
conduct “did not amount to the discharge of a firearm but was more than
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brandishing, displaying, or possessing a firearm or other dangerous weapon.”
U.S.S.G. § 1B1.1 cmt. 1(g). A dangerous weapon was “brandished” if it “was
pointed or waved about, or displayed in a threatening manner.” U.S.S.G. § 1B1.1
cmt 1(c).
At the sentencing hearing, the district court found that “[a]ccording to the
presentence report, Michael Peach otherwise used a dangerous weapon, that is a
beebee gun, semiautomatic pistol, 1 in robbing Jimmie’s Diner on April 10, 1995,
pointed the gun at two employees in the course of the robbery [sic.].” R. Supp.
Vol. IV at 9. Gilkey’s counsel below objected to the U.S.S.G. § 2B3.1 sentence
enhancement on the basis that Gilkey did not know and could not have foreseen
that Peach had the weapon when he entered the restaurant. Counsel did not object
on the basis that Peach’s conduct constituted “brandish[ing]” a dangerous weapon
under U.S.S.G. § 2B3.1(b)(2)(E), rather than “otherwise us[ing]” a weapon under
U.S.S.G. § 2B3.1(b)(2)(D). In response to counsel’s objections, the court held
that “it was reasonably foreseeable to [Gilkey] that Peach would use a weapon to
threaten employees of the diner in the course of the robbery.” See U.S.S.G. §
1B1.3 cmt. 2(b)(1). The district court also adopted the findings of the Pre-
Sentence Report, stating: “The Court determines that the presentence
Under the Sentencing Guidelines, a “BB” or pellet gun “is a dangerous
1
weapon but not a firearm.” U.S.S.G. § 1B1.1 cmt. 1(e).
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investigation report and the previously stated findings are accurate and orders that
those findings be incorporated [in its judgment]” R. Supp. Vol. IX at 14. The
Pre-Sentence Report stated the following:
Michael Peach[] entered Jimmie’s Diner Restaurant, and confronted a
waitress . . . . He grabbed her by the neck and pointed a gun to her
head, demanding money. She indicated that he almost lifted her from
her feet, placing her face almost directly in his. She advised him that
she could not provide him with any money at which time he left her
and grabbed the shift supervisor/manager . . . . He forced [him] to an
office area, while pointing a gun at him, and demanded that he open
the safe and provide money.
R. Supp. Vol. II at ¶ 10.
In light of the district courts’ factual findings, including those made
directly by the court and those it adopted from the Pre-Sentence Report, this court
determines that Michael Peach “otherwise used” a dangerous weapon because his
conduct amounted to more than “brandishing.” See U.S.S.G. § 1B1.1 cmt 1(g)
(explaining that a weapon was “otherwise used” if the conduct amounted to more
than “brandishing”). Peach did not merely point, wave about, or display the
weapon in a threatening manner. Instead, he (1) pointed it at the victims, (2) used
it to threaten them, (3) pointed it at one victim’s head while grabbing and lifting
her by the neck and demanding money, and (4) grabbed another victim, forced
him to an office area while pointing the gun at him, and demanded that he open
the safe and provide money.
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In United States v. Roberts, this court held that a criminal defendant
“otherwise used,” as opposed to merely “brandished,” a knife when he approached
his victim from behind while holding a knife in his right hand, put his right arm
around the victim, and held the knife next to her face and neck while demanding
money. 898 F.2d 1465, 1467, 1469-70 (10th Cir. 1990). The facts of this case
are the substantial equivalent of the facts in Roberts, and thus require the same
conclusion that the weapon was “otherwise used,” rather than merely
“brandished.”
Other circuits have treated various kinds of conduct as constituting
“otherwise using,” as opposed to merely “brandishing,” a dangerous weapon. In
United States v. Fuller, the Ninth Circuit found that the defendant’s conduct
was more culpable than “brandishing” in two ways. First, the defendant
. . . caus[ed] the gun to come in contact with the teller’s head . . . . Second,
the defendant used the gun to threaten the [victim] and to force her to get
up off the floor. By pointing the firearm at the [victim] and explicitly
threatening to kill her if she did not stand, the defendant’s conduct
exceeded mere “brandishing.”
99 F.3d 926, 927 (9th Cir. 1996). The district court’s findings in this case do not
specifically reveal whether there was any physical contact between the gun and
the victim. It is clear, however, that the gun was not only brandished, but also
used to directly threaten the victims and to force them to move according to
Peach’s directions. Though the findings do not specifically reveal that Peach
explicitly verbalized a threat to kill, they do reveal that he used the gun, in
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connection with violent physical contact between himself and his victims, to
threaten and to force movement.
In United States v. Johnson, the Third Circuit found that the defendant had
“otherwise used,” rather than merely “brandished,” a dangerous weapon because
he “actually leveled the gun at the head of the victim at close range and
verbalized a threat to discharge the weapon.” 931 F.2d 238, 240 (3d Cir.), cert.
denied, 502 U.S. 886 (1991); see also United States v. Seavoy, 995 F.2d 1414,
1421-22 (7th Cir.) (defendant “otherwise used” weapon because he pointed gun at
victim’s faces and heads, threatened to kill, and directed them at gunpoint to lie
face down on floor), cert. denied, 510 U.S. 954 (1993). In the case at bar, not
only did Peach point the weapon at one victim’s head while at close range, he
pointed it at her head while grabbing and lifting her by the neck and demanding
money. He grabbed another victim while pointing the gun at him as well, and
forced him to move as directed and to participate in the robbery. While the
factual findings reveal no verbal threat, the essence of the conduct is similar to
the facts in Johnson. The Johnson court stated:
The dictionary defines “brandish” as “to shake or wave (a weapon)
menacingly,” and gives as synonyms “flourish” and “wave.”
Webster’s Third New International Dictionary 268 (1976). Although
the inclusion of “pointed” in the Guideline definition makes it clear
that pointing a weapon at, for example, bank tellers or customers
during a bank robbery is included in the term “brandish,” we
construe [“pointed”] in the context of the Guideline definition as
denoting a generalized rather than a specific threat.
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Johnson, 931 F.2d at 240. The facts of the case at bar, which include actual,
physical seizing of the specific victim, the simultaneous pointing of the weapon at
the victim, and the forced movement of the victim, indicate specific rather than
general pointing of the gun. It does not matter whether the gun itself actually
touched the victim. Thus, this court affirms the district court’s imposition of a
four-level enhancement on the grounds that the weapon was “otherwise used” in
the robbery.
II. CRIMINAL HISTORY CALCULATION
The Sentencing Guidelines provide the following instructions for
calculating criminal history points for offenses committed by a juvenile
defendant: “add 2 points . . . for each . . . juvenile sentence to confinement of at
least sixty days.” U.S.S.G. § 4A1.2(d)(2)(A); see also U.S.S.G. § 4A1.1(b).
The district court added six points to Gilkey’s criminal history calculation
based on three prior juvenile adjudications. The sentences given for each of these
three adjudications included orders that Gilkey be taken into the custody of the
Kansas juvenile system, and Gilkey was actually held in custody from July 29,
1992 to April 8, 1993.
The details of the crimes and punishments are as follows. The first juvenile
adjudication, misdemeanor theft, was referred to the juvenile court on January 29,
1990, when Gilkey was 14. The second juvenile adjudication, auto burglary and
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attempted misdemeanor theft, was referred on February 20, 1990, when Gilkey
was 14. On August 27, 1990, a sentence of probation with restitution was
imposed for each of these first two offenses. The probation for these first two
adjudications, however, was revoked on July 29, 1992, and Gilkey was ordered
into custody. On November 3, 1992, when Gilkey was 17, he was referred to the
juvenile court for his third juvenile adjudication, for carrying a concealed
weapon. A sentence of continued custody was imposed for this third
adjudication. Gilkey remained in custody until April 8, 1993.
Gilkey concedes that his confinement constituted a “juvenile sentence to
confinement” for purposes of § 4A1.2(d)(2)(A). See Appellant. Br. at 11; see
also United States v. Birch, 39 F.3d 1089, 1095 (10th Cir. 1994) (holding
defendant’s placement into Kansas juvenile custody qualified as “confinement”
within meaning of U.S.S.G. § 4A1.2(d)(2)(A)). 2 He claims, however, that only
2
In his Reply Brief, Gilkey argues that the third adjudication did not lead to
an order of confinement which fit under § 4A1.2(d)(2)(A) because the order
contained no specifically identifiable term. Gilkey states “it is purely speculation
to conclude that this third referral separately triggered an additional juvenile
sentence of at least sixty days.” Appellant Reply Br. at 3. This claim raises
factual questions which are not reviewable, even for plain error. See United
States v. Ciapponi, 77 F.3d 1247, 1252 (10th Cir.), cert. denied., 116 S. Ct. 1839
(1996). Furthermore, neither of the orders of custody in the first two
adjudications contained specific terms, yet Gilkey concedes that the confinement
which resulted therefrom qualified under § 4A1.2(d)(2)(A). Additionally, he cites
circuit authority which this court finds applicable to the order of continued
custody in the third adjudication. See United States v. Birch, 39 F.3d 1089, 1095
(10th Cir. 1994) (holding defendant’s placement into Kansas juvenile custody
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two points ought to have been added on the theory that his confinement from July
29, 1992 through April 8, 1993 constituted only one “sentence to confinement.”
Merely because Gilkey served one continuous period of confinement, however,
does not mean that the sentences of confinement pronounced in each of the
adjudications do not meet the requirements of U.S.S.G. § 4A1.2(d)(2)(A). Two
points may therefore be added to the criminal history calculation for each. 3
Gilkey has not presented any sound reason to conclude that the orders of
confinement given for the three juvenile offenses identified in the Pre-Sentence
Report should not be deemed to separately trigger § 4A1.2(d)(2)(A), with two-
point additions for each.
Gilkey does argue that the first offense should not have counted because
the Pre-Sentence Report does not specifically note on the first offense that the
defendant was “adjudicated delinquent,” but does so note on the second and third
offenses. Despite the absence of clear language identifying that the defendant
was “adjudicated delinquent,” the Report clearly identifies the dates of sentencing
and describes the dispositions on this first offense. A sentence was imposed on
August 27, 1990 with a disposition of “Probation with restitution,” and on July
qualified as “confinement” within meaning of U.S.S.G. § 4A1.2(d)(2)(A)).
3
The first two custody orders followed revocations of probation originally
granted in the first two adjudications. The third order was for continued custody,
following the third adjudication stemming from the offense committed while
Gilkey was already in custody.
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29, 1992 “[p]robation revoked and . . . custody ordered.” [R. Supp. Vol. IV at ¶
31.] It is an unwarranted stretch to infer, as Gilkey argues, that this first offense
did not lead to an adjudication. Gilkey was specifically sentenced and eventually
ordered into custody for the offense. Ultimately, however, these factual disputes
were not raised below and are thus waived in this plain error review. Ciapponi,
77 F.3d at 1252.
Gilkey also argues that criminal history is not calculated based upon the
number of juvenile court filings or proceedings. See United States v. Wilson, 41
F.3d 1403 (10th Cir. 1994). Gilkey’s Pre-Sentence Report, however, does not
reveal merely three filings or proceedings, but three orders of confinement
resulting from three juvenile adjudications.
Accordingly, this court AFFIRMS the Appellant’s sentence.
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United States v. Gilkey
Court: Court of Appeals for the Tenth Circuit
Date filed: 1997-07-02
Citations: 118 F.3d 702
Copy CitationsCombined Opinion