U.S. v. WILSON, 369 F.3d 329 (3rd Cir. 2004)

No. 03-2496.United States Court of Appeals, Third Circuit.Argued February 25, 2004.
Filed May 27, 2004.

Appeal from the United States District Court for the District of New Jersey, Jerome B. Simandle, J.

Richard Coughlin, Lori M. Koch (Argued), Office of Federal Public Defender, Camden, NJ, for Appellant.

George S. Leone, Sabrina G. Comizzoli (Argued), Office of United States Attorney, Newark, NJ, for Appellee.

Before RENDELL, BARRY and FISHER, Circuit Judges.

FISHER, Circuit Judge.

Defendant Walter W. Wilson, Jr. appeals from his judgment of sentence, arguing that the district court erred in holding that he “otherwise used” a fake bomb during a bank robbery rather than merely “brandishing” it, thus meriting a four-point offense level enhancement under U.S.S.G. § 2B3.1(b)(2). Because Wilson placed the bomb in close proximity to a bank teller and made explicit threats to imminently detonate the bomb if the teller did not comply with his demands, Wilson went beyond mere “brandishing.” Accordingly, Wilson “otherwise used” the fake bomb for

Page 330

purposes of U.S.S.G. § 2B3.1(b)(2). We will therefore affirm the judgment of the district court.

I. Background
On October 21, 2002, Wilson entered the Pennsville National Bank in Elmer, New Jersey. He was carrying a backpack and a duffle bag, and had what he later claimed was a toy gun stuffed in the waistband of his trousers. The backpack contained a fake bomb made out of a two-liter bottle, PVC pipe, duct tape, and a toy cellular phone as a fake triggering device. Wilson approached a teller, saying “This is not a joke, give me your money.” He moved his jacket aside to display the handle of the toy gun. Wilson further stated, “I also have a bomb that can be detonated by a cell phone, you have 40 seconds.” He put the backpack on the counter, approximately 18 inches in front of the teller. Although the teller could not recall whether the backpack was open or shut, she believed that the backpack contained a real bomb.

Wilson handed the teller a note that read (emphasis and misspellings in original):

No Alarms!

You scream I shoot

I have a Gun and a bomb is hookup to a phone you have 40 sec To Fill This bag up

with untraceable money 100$. 50$. 20$

NO REd DYES! IF anybody TRYS TO STOP ME

OR Follow ME I Push Redail And Bank Blows UP!

NObody leves the Bank For 20 min

I have pepole watching they will Be shot!

I have Nothing To Loose!

The teller put approximately $2,250 in the duffle bag and Wilson left to join his wife and children, who were waiting in a car parked down the street.

Investigators identified Wilson’s fingerprints on the demand note and he was later arrested. On January 29, 2003, Wilson pled guilty to bank robbery, 18 U.S.C. § 2113. The parties stated in a plea agreement that they would stipulate at sentencing that Wilson’s offense involved a “dangerous weapon” or “dangerous weapons,” triggering the specific offense characteristic enhancement under U.S.S.G. § 2B3.1(b)(2). The parties reserved the right to argue whether the enhancement would be three levels for “brandishing” or four levels for “otherwise using.” Although the probation officer recommended only a three-level enhancement for “brandishing,” the government requested a four-level enhancement for “otherwise using.”

At the sentencing hearing on May 16, 2003, the district court concluded that Wilson had not merely “brandished” the fake bomb: “A brandishing would be carrying the bomb in a gym bag in sight of the teller and saying: You know what that is?” Rather, there were “multiple threats contained in the note that this bomb would be used imminently and that it would be used against this teller.” By “placing the bomb device on the counter, explaining its mechanism, which is that it would be detonated by phone, the common sense that the phone detonation would occur almost instantaneously, and the fact that the bomb was in direct proximity of the teller and therefore was directed at her if she failed to comply, satisfies the test.” In addition, the court held that the presence of the gun in Wilson’s pants made the bomb threat more credible.

Thus, stated the court, “[i]t’s the equivalent of pointing a bomb at the teller” or “the equivalent of taking the toy gun out and pointing it at the teller saying `I’ll pull

Page 331

this trigger if you don’t comply.'” The defendant was essentially saying “`I’ll detonate this bomb through the use of this cell phone if you don’t comply.'” Although the teller could not recall whether the backpack was open or shut, the court concluded that a picture of the crime scene showing an open backpack proved that it was “possible to see inside the bag” and that the open bag was “what the teller saw.”[1] The court found “[t]here is no doubt that the teller knew she would be blown up by this device within seconds, and that what she saw made the threats concrete.” The court thus concluded that Wilson had “otherwise used” the bomb, and applied a four-level enhancement. Wilson was sentenced to fifty-one months of imprisonment, three years of supervised release, restitution of $2,254, and a special assessment of $100. This timely appeal followed.

II. Discussion
The issue before the Court is narrow — whether Wilson “brandished” or “otherwise used” the fake bomb in connection with the bank robbery. “Brandishing” merits a three-level enhancement, whereas “otherwise using” merits four. U.S.S.G. § 2B3.1(b)(2). Wilson argues that in order to conclude that he “otherwise used” a fake bomb, the district court was required to find that he “pointed the bomb at the victim while issuing a specific threat or order.” The government counters that Wilson made specific verbal and written threats to the teller, which along with the positioning of his backpack, constituted “otherwise use” of the fake bomb.

The district court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction of this timely appeal pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Our review of the district court’s interpretation of the Sentencing Guidelines is plenary. United States v. Thomas, 327 F.3d 253, 255 (3d Cir.) (citing United States v. Day, 272 F.3d 216, 217
(3d Cir. 2001)), cert. denied, 124 S.Ct. 451 (2003). Determinations of fact are reviewed for clear error. Id.
(citing United States v. Carr, 25 F.3d 1194 (3d Cir. 1994)). In addition, we “`give due

Page 332

deference to the district court’s application of the guidelines to the facts.'” Id. (quoting 18 U.S.C. § 3742(e)).

We begin by examining the relevant guideline, U.S.S.G. § 2B3.1, which provides the base offense level for robbery. Of particular relevance is the specific offense characteristic for dangerous weapons:

(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 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; or (F) if a threat of death was made, increase by 2 levels.

Id. § 2B3.1(b)(2) (emphasis in original).[2]

It is undisputed that Wilson’s fake bomb was a “dangerous weapon” for sentencing purposes.[3] Thus, we must determine whether the dangerous weapon was “brandished” or “otherwise used.” The application notes to the Sentencing Guidelines provide definitions of “brandished” and “otherwise used:”

“Brandished” with reference to a dangerous weapon (including a firearm) 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. Accordingly, although the dangerous weapon does not have to be directly visible, the weapon must be present.

. . . .

“Otherwise used” with reference to a dangerous weapon (including a firearm) 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.G. § 1B1.1 applic. nn. 1(c), (f) (original italics removed). Thus, “otherwise used” means “more than brandishing, displaying, or possessing . . . a dangerous weapon,” but does not rise to the level of “discharge of a firearm.” Id. § 1B1.1
applic. n. 1(f) (original italics removed). Although the definition of “otherwise used” is not particularly helpful, we understand it to require us to examine the nexus between the dangerous weapon and the relevant conduct, and determine whether the conduct amounts to more than mere “brandishing.” Conduct that is “more” than mere “brandishing” need not rise to

Page 333

actual use or attempted use of the weapon to inflict harm.[4]

In the first of two identically named but unrelated Johnson
cases, we construed the meaning of “otherwise used” in the context of U.S.S.G. § 2A2.2(b), the guideline for aggravated assault. United States v. Johnson, 931 F.2d 238 (3d Cir. 1991) (“Johnson I“). The defendant had pointed a gun at the victim’s head from a distance of one or two feet, ordered her not to start her car or he would “blow [her] head off,” and demanded her money. Id. at 240 (alteration in original). Johnson argued that his mere threat meant that he had merely brandished the gun. We disagreed. Whereas “brandish” in the context of the guidelines “denot[ed] a generalized rather than a specific threat,” we concluded that where a defendant “actually leveled the gun at the head of the victim at close range and verbalized a threat to discharge the weapon, the conduct is properly classified as `otherwise using’ a firearm.” Id.

In the second Johnson case, the defendant and his cohorts robbed several jewelry stores. United States v. Johnson, 199 F.3d 123 (3d Cir. 1999) (“Johnson II“). In one of the robberies, one of several defendants wielding baseball bats threatened to hit an employee with the bat unless she put a phone down, lest he break her neck or “knock her damn head off.” Id.
at 124-25, 127. Johnson and others used sledgehammers to break open jewelry cases. We concluded that Johnson would be imputed with the others’ conduct and that a four-level enhancement was warranted for “otherwise using.” Id. at 127-28. “Courts of Appeals have generally distinguished between the general pointing or waving about of a weapon, which amounts to `brandishing,’ and the pointing of a weapon at a specific victim or group of victims to force them to comply with the robber’s demands.” Id. at 126. According to those courts, “`brandishing’ constitutes an implicit threat that force might be used, while a weapon is `otherwise used’ when the threat becomes more explicit.” Id. (citing cases).

Thus, “[p]ointing a weapon at a specific person or group of people, in a manner that is explicitly threatening, is sufficient to make out `otherwise use’ of that weapon.” Id. at 127. This was “true when any dangerous weapon is employed: It need not be a firearm.” Id. (emphasis in original). Moreover, we noted that verbal threats were not required — non-verbal conduct could also suffice. Id. (citing United States v. Nguyen, 190 F.3d 656
(5th Cir. 1999)).[5] Thus, Johnson had “otherwise

Page 334

used” dangerous weapons in two ways: through a co-defendant’s use of the baseball bat, and through his own conduct in using the sledgehammer to coerce and threaten others by smashing open jewelry cases while a co-defendant threatened an employee with the baseball bat. Id. at 127-28.

We confronted whether conduct without an explicit verbal threat could be “otherwise using” in United States v. Orr, 312 F.3d 141 (3d Cir. 2002), where the defendant robbed a credit union carrying what appeared to be a handgun but was in fact a pellet gun. Orr held the gun to the assistant manager’s head and directed her to empty a cash box into a garbage bag. We noted that in Johnson I and Johnson II, the defendants had “otherwise used” dangerous weapons by (1) pointing or raising a weapon at a victim; (2) threatening to harm or kill; and (3) making demands for money or other actions. Id. at 144-45 (citing Johnson II, 199 F.3d 123; Johnson I, 931 F.2d at 240). In Orr, a demand for money was made, but the threat to shoot was made only through the defendant’s conduct. We concluded that “[n]either the guidelines nor the caselaw requires infliction of the violent physical contact Orr suggests or a verbalized threat to harm the victim in order to constitute `otherwise used.'” Id. at 145.

There is little case law on when a bomb or incendiary device, fake or real, has been “otherwise used.” However, this issue arose in the Eleventh Circuit in United States v. Miller, 206 F.3d 1051 (11th Cir. 2000), where the defendant approached a bank teller, displayed what looked like a bomb, lit the fuse, and asked her if she knew what “it” was. He demanded money without dye packs. The Court concluded that Miller did not just display or brandish the fake bomb — he actually lit the fuse while explicitly threatening the teller. Id. at 1054. The Court held that “lighting the fuse is like the cocking of a handgun,” making the dangerous weapon “otherwise used.” Id.; cf. United States v. Waskom, 179 F.3d 303, 314-15 (5th Cir. 1999) (construction and detonation of test bombs in connection with conspiracy to commit robbery, with plans to detonate additional bombs as diversion for upcoming robbery, showed bombs were “otherwise used”).[6]

Turning to the facts at hand, we conclude that Wilson “otherwise used” the fake bomb. He made explicit verbal and written threats that he would detonate the bomb if the teller did not comply with his demands. He said “This is not a joke, give me your money,” and demanded, both verbally and in writing, that the teller give him money. He also said that he had “a bomb that can be detonated by a cell phone, you have 40 seconds.” His demand note said his bomb was hooked up to a phone, gave the teller 40 seconds to hand

Page 335

over untraceable money without red dye, and indicated that if anybody tried to stop him, he would push redial and blow up the bank, which would necessarily include blowing up the teller. Wilson’s actions were also explicitly threatening. He placed the bomb in close proximity to the teller, 18 inches away.[7]
Indeed, the teller believed that the backpack contained a real bomb. Wilson also displayed what appeared to be a gun stuffed in the waistband of his trousers.[8] Accordingly, Wilson “otherwise used” the fake bomb.

Wilson attempts to distinguish Miller on its facts because Miller had gone further, lighting the fuse of his fake bomb. In contrast, says Wilson, he never took the bomb out of the backpack, waved or pointed the backpack at the teller, moved the backpack, or reached for the detonator. Wilson’s argument misses the mark. Such additional steps are no doubt sufficient to show “otherwise use.” They are not, however, necessary. Althoug Miller noted that “lighting the fuse is like the cocking of a handgun,” the gun need not be “cocked” — the mere pointing of a weapon, in connection with explicit threats, is sufficient.

Here, the fake bomb was essentially “pointed” at the victim by its placement within 18 inches of her body. Wilson made explicit verbal and written threats in connection with the fake bomb. The conduct was undertaken to heighten the teller’s fear in order to facilitate the robbery. Yelverton, 197 F.3d at 534 (“the key consideration is whether a gun (or other weapon) was pointed at a specific person in an effort to create fear so as to facilitate compliance with a demand, and ultimately to facilitate the commission of the crime”). Wilson’s conduct is analogous to pointing a gun at the teller’s head and threatening to shoot lest the teller fail to comply. Accordingly, Wilson’s use of the fake bomb was like the pointing of a handgun, making it “otherwise used.”[9]

Page 336

Defendant also cites to United States v. Kushmaul, 147 F.3d 498 (6th Cir. 1998), where the defendant used one hand to force a victim to the floor during a bank robbery. In Kushmaul’s other hand was a baseball bat, which Kushmaul never raised. He told the victim, among other things, “Be quiet and I won’t hurt you.”Id. at 499. The Court concluded that “the assault was committed entirely independently of the bat.” Id. at 501. Although the defendant verbally threatened the woman, he did so “without reference” to the bat. Id. Accordingly, the assault and threat were not relevant to an assessment of how the defendant used the weapon. Id.

Not only is Kushmaul distinguishable on its facts, but its result supports our conclusion. We read Kushmaul to stand for the proposition that there must be a nexus between the dangerous weapon and the conduct alleged to constitute “otherwise use” of that weapon. In Kushmaul, that nexus was lacking. The weapon was not — through words or actions — specifically used in connection with a demand or threat. In contrast, Wilson, through his words and actions, made specific use of and reference to the fake bomb in connection with his demand and threat.[10]

Finally, Wilson argues that the district court clearly erred in concluding that the teller saw the contents of the backpack containing the fake bomb. This argument is in theory enhanced by the government’s concession on appeal that the photograph of the open backpack cited by the district court turned out to show a backpack that had been cut open after the robbery. But whether or not the teller saw the backpack’s contents is irrelevant. Wilson concedes that the fake bomb was a dangerous weapon and it is undisputed that the teller believed the bomb to be real. Indeed, the fake bomb was used in a manner to suggest that it was real, making it a dangerous weapon for guidelines purposes. See
U.S.S.G. § 1B1.1 applic. n. 1(d) (object used “in a manner that created the impression that the object was such an instrument” is dangerous weapon). One need not see a fake bomb in order for it to constitute a dangerous weapon. See Rodriguez,
301 F.3d at 669 (styrofoam sandwich box put forth as bomb properly found to be “dangerous weapon”); Hart, 226 F.3d at 609 (lunch box and shoe box put forth as bomb properly found to be “dangerous weapons”). As undisputed evidence of record compels the conclusion that Wilson “otherwise used” the fake

Page 337

bomb, it does not matter whether or not the teller saw the contents of the backpack.[11]

III.
By placing a fake bomb close to a bank teller who believed it to be real, and by making explicit verbal and written threats to imminently detonate the bomb if the teller did not comply with his demands, Wilson went beyond mere “brandishing.” His conduct is analogous to pointing a gun at a teller’s head, making demands, and threatening to shoot unless the teller complies. We therefore conclude that Wilson “otherwise used” the fake bomb for sentencing purposes and that the four-level enhancement was correct.

Accordingly, the judgment of the district court will be AFFIRMED.