Nos. 92-3124, 92-3127.United States Court of Appeals, Third Circuit.Submitted Under Third Circuit Rule 12(6) September 23, 1992.
Decided December 30, 1992.
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Melvin L. Vatz, Grossinger, Gordon Vatz, Pittsburgh, PA, for appellant Terry D. Dixon.
Thomas S. White, Federal Public Defender, Karen Sirianni Gerlach, Asst. Federal Public Defender, Pittsburgh, PA, for appellant John A. Fletcher.
Paul J. Brysh, Office of U.S. Atty., Pittsburgh, PA, and Thomas W. Corbett, Jr., U.S. Atty., Daniel E. Fromstein, Victor D. Stone, Crim. Div., U.S. Dept. of Justice, Washington, DC, for appellee.
Appeal from the United States District Court for the Western District of Pennsylvania.
Present: HUTCHINSON and ALITO, Circuit Judges, FULLAM, District Judge.[*]
[1] OPINION OF THE COURT
HUTCHINSON, Circuit Judge.
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issues they raise lack merit and are summarily rejected.[1]
In seeking resentencing, Dixon asserts that the district court erred in enhancing his sentence for brandishing, possessing or displaying a dangerous weapon under the United States Sentencing Guidelines (Guidelines).[2] We reject Dixon’s sentencing argument for the reasons that follow and hold that the district court properly increased his base offense level by three because his co-conspirator, Stephanie Fletcher, though she did not, in fact, possess any weapon, brandished what appeared to be a gun during the commission of the robbery.
I.
[3] On August 15, 1991, a federal grand jury sitting in the Western District of Pennsylvania returned a two count indictment charging Dixon and Fletcher with one count of conspiracy to rob a federally insured bank in violation of 18 U.S.C.A. § 371 (Count One), and one count of bank robbery in violation of 18 U.S.C.A. §§ 2 and 2113(a) (Count Two). On December 6, 1991, following a joint jury trial, Dixon and Fletcher were convicted on both counts.
II.
[6] On June 27, 1991, a robbery occurred at a federally insured bank in McKeesport, Pennsylvania. Two individuals entered the bank, ordered the tellers to empty the cash drawers and fled with the contents. On July 11, 1991, the police placed a surveillance photograph of one of the alleged perpetrators in a local newspaper. It had been taken during the course of the robbery by a video monitor installed in the bank. The person in the photograph was identified as Stephanie Fletcher. The FBI obtained a warrant for her arrest and took her into custody on July 16, 1991.
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Dixon also provided the clothes to be worn during the robbery. On the day of the robbery, Dixon, in accordance with his plan, dropped Stephanie and John Fletcher off at the bank and parked one block away with the get-away car. When Stephanie Fletcher entered the bank, she was unarmed, but she had draped a towel over her hand to create an appearance that she had a gun. The bank employees testified they believed that Fletcher had a gun concealed beneath the towel.
[8] While both robbers shouted obscenities and barked orders at the bank employees, Stephanie Fletcher pointed menacingly at them with the towel draped hand the employees believed concealed a gun. During the robbery, the Fletchers manhandled one of the bank tellers against a metal file cabinet. The teller suffered a cut on her arm. None of the bank employees were able to identify the robbers, but they had been able to activate the surveillance camera that took the damning photograph. After committing the robbery, Stephanie and John Fletcher fled in Dixon’s waiting car. [9] At sentencing, the district court held that Stephanie Fletcher had “brandished” a “dangerous weapon” during the robbery within the meaning of the Guidelines, although it acknowledged that she held no object other than the towel covering her hand. It also held Dixon accountable for the acts of his co-conspirator pursuant to section 1B1.3(a)(1) of the Guidelines, increased the base offense level for robbery by three levels pursuant to section 2B3.1(b)(2)(C) of the Guidelines,[3] and sentenced Dixon to one hundred twenty-five months of imprisonment, three years of supervised release, and $100.00 in special assessments.III.
[10] The district court had subject matter jurisdiction over this case pursuant to 18 U.S.C.A. § 3231 (West 1985). We have appellate jurisdiction over Dixon’s convictions and the district court’s judgments of sentence pursuant to 28 U.S.C.A. § 1291 (West Supp. 1992).
___ U.S. ___, 112 S.Ct. 1515, 117 L.Ed.2d 651 (1992). The question whether Dixon is accountable for Stephanie Fletcher’s conduct is likewise a question of law subject to plenary review United States v. Collado, 975 F.2d 985, 990 (3d Cir. 1992).
IV.
[13] Guideline section 1B1.3(a)(1) states that adjustments in the base offense level should be determined based upon “all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction. . . .” United States
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Sentencing Commission, Guidelines Manual, § 1B1.3(a)(1) (Nov. 1990). All acts of the perpetrator of a crime in the course of its commission are attributed to an aider or abettor, and acts of a conspirator are attributed to his co-conspirators if they are done in furtherance of the conspiracy and reasonably foreseeable. Application Note 1 to section 1B1.3 provides in relevant part:
[14] Id. § 1B1.3, comment. (n. 1). In United States v. Collado, a drug distribution conspiracy case, we looked to the note 1 commentary quoted above and held, under section 1B1.3(a), that the district court, before attributing a criminal actor’s conduct to an accomplice, must determine that the actions: (1) were in furtherance of the jointly-undertaken activity; (2) were within the scope of the defendant’s agreement; and (3) were reasonably foreseeable in connection with the activity the defendant agreed to undertake. Collado, 975 F.2d at 991-92, 995 (citing U.S.S.G. § 1B1.3, comment. (n. 1)). Some cases have also held that an express finding is required when evidence concerning the circumstances of a crime permit a district court to infer that a defendant should have reasonably foreseen possession of a firearm by an accomplice or co-conspirator. See United States v. Aguilera-Zapata, 901 F.2d 1209, 1215-16 (5th Cir. 1990). But see United States v. Soto, 959 F.2d 1181, 1187 (2d Cir. 1992) (defendant could have reasonably foreseen firearms would be possessed in connection with drug activities because firearm was common paraphernalia for drug traffickers). Here, as in Soto,In the case of criminal activity undertaken in concert with others, whether or not charged as a conspiracy, the conduct for which the defendant “would be otherwise accountable” also includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant.
we think a remand is unnecessary because the record shows that Dixon had a duty to anticipate or foresee that a bank robbery in broad daylight would require some credible threat of deadly force. Standard foreseeability analysis does not require Dixon to foresee the precise means the perpetrators he aided would use in making the threat of harm credible enough to overcome the victim’s willingness to resist. Under the circumstances of this case, Stephanie Fletcher’s threatening acts in perpetrating this robbery were attributable to Dixon as a matter of law and a remand for an express finding on its presence would be futile. His responsibility for Stephanie Fletcher’s act of feigning possession of a gun flows directly from the facts of this case and the commentary to the Guidelines. Illustration b to application note 1 of section 1B1.3 provides:
[15] U.S.S.G. § 1B1.3, comment. (n. 1), illus. b. Stephanie Fletcher’s conduct in pretending to brandish a gun was both in furtherance of the robbery and reasonably foreseeable by Dixon. Her act of pretending to have a gun facilitated commission of the bank robbery, and Dixon planned and masterminded that robbery. He gave explicit and detailed instructions to Stephanie and John Fletcher concerning its commission, he waited in the get-away car he had provided and he also provided all of the clothes and paraphernalia Stephanie and John used during the robbery. Considering Dixon’s experience with offenses of this nature, as shown by his criminal history enhancement, and the characteristics of a robbery by force, in the old style, vi et armis, lead us to the conclusion that Fletcher’s act was attributable to Dixon as a matter of law. [16] Since Dixon was the wheelman and planner of the robbery, not only was he bound to foresee Stephanie’s threat of intimidation, but the district court could also have reasonably inferred he was the one who suggested the means to instill fearDefendant C, the getaway driver in an armed bank robbery in which $15,000 is taken and a teller is injured, is convicted of the substance count of bank robbery. Defendant C is accountable for the money taken because he aided and abetted the taking of the money. He is accountable for the injury inflicted because he participated in concerted criminal conduct that he could reasonably foresee might result in the infliction of injury.
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into the bank employees that Stephanie Fletcher later employed. The district court did not err in deciding Dixon was accountable for Stephanie Fletcher’s act of threatening the bank employees with what they believed was a gun.
[17] After determining that Stephanie Fletcher’s conduct in feigning possession of a firearm was attributable to Dixon, the district court applied section 2B3.1(b)(2)(C) of the Guidelines to increase Dixon’s base offense level by three points, as that section requires, “if a dangerous weapon was brandished, displayed or possessed” during the course of a robbery. U.S.S.G. § 2B3.1(b)(2)(C). Dixon’s main attack on this three-level increase is based on the contention that Guideline section 2B3.1(b)(2)(C) does not apply because Stephanie Fletcher had nothing beneath the towel except her hand and that a hand is not an “object” within the meaning of the commentary to the Guideline equating an object that has the appearance of a dangerous weapon with a real one. Therefore, we must decide whether Stephanie Fletcher did “brandish, display or possess” an “object” that could be taken as a “dangerous weapon” within the meaning of section 2B3.1 of the Guidelines. [18] It is undisputed that Stephanie Fletcher had no object in her hand other than a towel. The bank employees merely testified that they believed the towel concealed a gun. Stephanie Fletcher, however, stated at trial that she acted with the intent of creating that belief. Based on these facts, the district court concluded that Stephanie Fletcher’s successful attempt to put the employees in fear of being shot if they resisted justified an increase of three in Dixon’s base offense level under section 2B3.1(b)(2)(C). [19] The 1990 version of section 2B3.1(b)(2)(C) provides: [20] § 2B3.1. Robbery(a) Base Offense Level: 20
(b) Specific Offense Characteristics
* * * * * *
[21] U.S.S.G. § 2B3.1. The Sentencing Commission’s commentary to this section states “[w]hen an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon for the purposes of subsection (b)(2)(C).” Id. § 2B3.1, comment. (n. 2) (emphasis added). In addition, application note 1 to section 2B3.1 incorporates the commentary to section 1B1.1 which defines the terms “brandished” and “dangerous weapon” as follows:(2)(C) if a dangerous weapon (including a firearm) was brandished, displayed, or possessed, increase by 3 levels. . . .
[22] Id. § 1B1.1, comment. (n. 1(c), (d)) (emphasis added). Although Guideline section 2B3.1(b)(2)(C), on its face, refers only to “weapons” that are dangerous, the commentary in note 2 expressly requires sentencing courts to impose the section’s three-level increase whenever an object that merely appears to be a dangerous weapon is brandished, displayed or possessed. In short, the Commission equates the image of a “dangerous weapon” with its reality for purposes of sentence enhancement. [23] The Sentencing Commission also tells “courts [to] treat the commentary much like legislative history.” Id. § 1B1.7, commentary; see also United States v. Ofchinick, 877 F.2d 251, 256-57 (3d Cir. 1989). Courts use the “commentary” to the Guidelines as an aid in interpreting them. Courts also look to the commentaries to explain how the Guidelines should be applied. Thus, when the text of a Guideline is unclear, we must look to the Commission’s comments as an aid to construction. See United States v. Bierley,(c) “Brandished” with reference to a dangerous weapon (including a firearm) means that the weapon was pointed or waved about, or displayed in a threatening manner.
(d) “Dangerous weapon” means an instrument capable of inflicting death or serious bodily injury. When an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon.
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922 F.2d 1061, 1066 (3d Cir. 1990); United States v. Williams, 917 F.2d 112, 114 (3d Cir. 1990), cert. denied,
___ U.S. ___, 111 S.Ct. 1001, 112 L.Ed.2d 1084 (1991).
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now expressly equates appearance with reality. By the time Stephanie Fletcher and her brother, acting at Dixon’s direction, committed the robbery before us, the Commission had effectively rendered Coe and Hawkins obsolete by incorporating application note 1(d) of the Commentary to section 1B1.1 into note 1 of the commentary to section 2B3.1.
[29] We are unable to see any material difference between the present situation and that presented by either the toy gun cases or the case involving the bulge in the waistband. It has been uniformly held that a robber who carries a toy gun or an unloaded or inoperable real gun during the commission of a bank robbery creates an enhanced risk of violence. A robber who creates the appearance of possession of a gun, i.e. by placing a towel over his or her hand and pretending to possess a gun, creates similar risks as well. Stephanie Fletcher effectively utilized her hand and a towel for the same purpose as the defendants in those cases; namely, in order to create the appearance of a gun and so frighten the bank employees into acceding to the robbers’ criminal acts. [30] The risk that is created when a robber displays a toy gun is similar to the risk created when carrying an unloaded gun.[31] United States v. Martinez-Jimenez, 864 F.2d 664, 666-67 (9th Cir.), cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989). [32] The rationale of these Guidelines cases is the same as that of the Commission. The Commission’s rationale, in turn, is the same as the Supreme Court’s rationale in deciding that Congress intended a similarly expansive construction of the phrase, “dangerous weapon,” in an analogous statutory context. See McLaughlin v. United States, 476 U.S. 16, 18-19, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986). There, the Supreme Court was called upon to determine the meaning of the phrase “dangerous weapon” in 18 U.S.C.A. § 2113(d). That statute provides an enhanced penalty for assault by use of a “dangerous weapon” during a bank robbery. In deciding that an unloaded handgun is a “dangerous weapon” within the meaning of section 2113(d), a unanimous Court stated that “the display of a gun instills fear in the average citizen . . . [and] as a consequence, it creates an immediate danger that a violent response will ensue.” Id. at 17-18, 106 S.Ct. at 1678. The Court also stated thatFirst, the robber subjects victims to greater apprehension. Second, the robber requires law enforcement agencies to formulate a more deliberate, and less efficient, response in light of the need to counter apparent direct and immediate threat to human life. Third, the robber creates a likelihood that the reasonable response of police and guards will include the use of deadly force. The increased chance of an armed response creates a greater risk to the physical security of victims, bystanders, and even the perpetrators. Therefore, the greater harm that a robber creates by deciding to carry a toy gun is similar to the harm he creates by deciding to carry an unloaded gun.
[33] Id. at 18 n. 3, 106 S.Ct. at 1678 n. 3 (citing 78 Cong.Rec. 8132 (1934)) (emphasis added). [34] In Guidelines cases, courts have thus relied on McLaughlin to hold that a defendant brandished, possessed or displayed a “dangerous weapon,” not only in those instances in which a real but inoperable weapon was used but also when an object resembling a real weapon, such as a toy gun, was displayed. In United States v. Gray, 895 F.2d 1225 (8th Cir. 1990) (per curiam), the court held that an unloaded BB gun was a dangerous weapon warranting a three-point increase in an unarmed bank robbery defendant’s offense level. Id. at 1226. There, the defendant had argued that McLaughlin could be distinguished because the Guidelines, in contrast to 18 U.S.C.A. § 2113(d), focus on the actualThe floor debate on the provision that became [18 U.S.C.A.] § 2113(d) indicates that Congress regarded incitement of fear as sufficient to characterize an apparently dangerous article (such as a wooden gun) as “dangerous” within the meaning of the statute.
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conduct of the defendant rather than the degree of danger perceived by others. Id. The United States Court of Appeals for the Eighth Circuit rejected the defendant’s argument based upon its reading of McLaughlin and the Guideline application notes Id.; see also United States v. Smith, 905 F.2d 1296, 1299-1300 (9th Cir. 1990) (inoperable pellet gun is dangerous weapon because display of even inoperable or unloaded gun instills fear in average citizen and creates possibility of immediate, violent response).
[35] Even though Stephanie Fletcher did not possess an actual weapon underneath the concealing towel, her actions created a reasonable belief that she had a gun. Police responding to the crime or the victims of the crime could easily have retaliated violently because of the immediate threat they perceived. During the course of a robbery, people confronted with what they believe to be a dangerous weapon often find their perception impaired because of fear and the threat of violence. That perceived fear and threat can itself trigger a violent and even deadly response. In the instant case, the victims’ beliefs that Stephanie Fletcher possessed a dangerous weapon were reasonable given the circumstances surrounding the crime. [36] The commentary to the applicable Guideline makes it clear that a robber’s intentional creation of an appearance of possession of a dangerous weapon is sufficient to warrant enhanced punishment. We cannot say the Commission’s expansion on the meaning of the Guideline phrase “dangerous weapon” in its 1990 commentary was unreasonable when we consider the cumulative effect of the meaning that the United States Supreme Court held Congress intended to give the same phrase in an analogous statute governing bank robbery, the case law under the Guidelines themselves, the broad discretion given the Commission to interpret its own Guidelines and the requirement that courts defer to such interpretations. [37] The district court did not err in increasing Dixon’s base offense level for brandishing a dangerous weapon pursuant to the Guidelines. Therefore, we will affirm the convictions and sentence.[41] The error of the majority, in my view, is its assumption that, in this context, the co-defendant’s hand was an object which “appeared to be a dangerous weapon”. We do not ordinarily think of our hands as objects, and it is clear to me that the Sentencing Commission shares this general view. [42] All of the cases cited in the majority opinion on this point differ from our case in that crucial particular: in each of the cited cases, there was some object other than the defendant’s own body which reasonably appeared to be a dangerous weapon. As the majority tacitly concedes, the towel which was wrapped around Stephanie Fletcher’s hand was not perceived to be, and could not reasonably be regarded as, a weapon of any kind, let alone a dangerous one.“(c) `Brandished’ with reference to a dangerous weapon (including a firearm) means that the weapon was pointed or waved about, or displayed in a threatening manner
(d) `Dangerous weapon’ means an instrument capable of inflicting death or serious bodily injury. When an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon.” (Emphasis added.)
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[43] I am confident that if the Sentencing Commission had intended to require the three-level increase whenever a defendant pretended to possess a dangerous weapon, the Commission would have said so. Instead, the Commission plainly required that the defendant possess an object which either was or resembled a dangerous weapon. [44] I recognize that, on the issue of whether the crime committed was indeed robbery, in that it involved the unlawful acquisition of money or property by the use of force or threat of force, the distinction between actual and make-believe weapons is immaterial: if the victim reasonably perceives that force may be used, the crime is made out. But when the issue is whether the already substantial penalty for robbery should be increased because of the use of a dangerous weapon, the extent of actual risk of harm occasioned by the defendant is the crucial factor. [45] The guidelines involved here must be applied to a wide range of criminal behaviors, ranging from the defendant who aims a loaded firearm, to the defendant whose genuine firearm is unloaded, to the defendant whose firearm is a toy, to the defendant who is unarmed and merely hands the teller a note demanding money. The cases cited in the majority opinion hold, and I agree, that the three-level increase is called for in all but the last of these categories. This is because (a) there appears to be a weapon, and (b) it is seldom possible to establish, after the fact, the precise nature of the weapon on display. There is no unfairness in resolving ambiguities against the defendant, in such circumstances. [46] But where, as in this case, it is stipulated and undisputed that the defendant was not carrying a weapon of any kind, applying the three-level increase is utterly unreasonable, and would seriously undermine a principal purpose of the guidelines — to deter criminals from using dangerous weapons. Under the majority’s holding, criminals have no incentive to minimize potential harm to innocent victims. [47] Absent clear and unequivocal direction from Congress or the Sentencing Commission, I do not believe we should strain to reach such an anomalous result. I therefore respectfully dissent.Page 857