On December 23, 2002, Darrell C. Chal-mers and Carlos Goodwin robbed a Loomis Fargo armed car courier at the Wolfchase Galleria Mall in Memphis, Tennessee. Defendant-Appellant Anthony Bolden, a security guard at the mall, was the “inside man” in this robbery, providing Chalmers and Goodwin with security camera angles and Loomis Fargo procedures. Chalmers and Goodwin left the mall with $922,803.88 in stolen cash and checks. Police arrested Chalmers several weeks later, and Chalmers implicated Bol-den as the mastermind of the robbery. After Bolden pleaded guilty, the district court sentenced Bolden to imprisonment for 205 months. Bolden appeals that sentence, challenging two offense-level enhancements that he received under the Sentencing Guidelines, the district court’s failure to lower the offense level because of Bolden’s purported acceptance of responsibility, and the reasonableness of the sentence under
United States v. Booker,
I. FACTS
At approximately 7:00 a.m. on the date of the robbery, Antonio Barton and Roy
The security dispatcher dispatched another security guard, Darnell Ingram, to the deposit room to check on Barton. When Ingram saw Barton on the floor, Ingram ran down a hallway and came upon one of the robbers. The robber pointed a gun at Ingram and then threw the gun at him. Unarmed, Ingram retreated back down the hall. Chalmers told FBI agents that he saw a security guard, pointed his gun at the guard, and said, “It’s not your business.”
Frankie Cotton, a maintenance employee who worked at the mall, encountered one of the robbers as he exited an elevator at the mail’s loading dock. The robber pointed a gun at Cotton and told him to “get back.” Cotton ran inside and hid behind a brick wall. Cotton saw a second robber exit the mall and get into what he described as a gray, four-door Chrysler Fifth Avenue. The second robber drove the car back to the dock where the first robber threw a bag into the back seat and got into the car. The robbers then drove away from the mall.
Police later determined that the getaway car was a stolen gray Plymouth Diplomat. Police found the car abandoned and burned in Mississippi. According to First Tennessee Bank, a total of $922,803.88 was stolen, which included $704,161.13 in cash and $218,642.75 in checks.
On December 24, 2002, police received a tip that Chalmers and Goodwin were responsible for the robbery. Cotton then identified Chalmers in a photo lineup as one of the robbers.
On January 3, 2003, Bolden was questioned by the FBI about the robbery. Bolden, the lead security guard for the Wolfchase Galleria, said that he was not working on the day of the robbery because he had Mondays off, but was called in at 9:30 a.m. After first denying that he knew Chalmers or Goodwin, Bolden admitted that he grew up with Goodwin and used to “hang out” with Goodwin’s brother. Agents asked Bolden whether he would take a polygraph examination, but Bolden said that he wanted to contact an attorney first. Bridgette Jack, a companion of Goodwin, identified a photograph of Bol-den as Goodwin’s friend “Tony.”
On February 18, 2003, agents arrested Chalmers. Chalmers told agents that Bol-den approached him and Goodwin at Goodwin’s home with the idea of committing a robbery at the mall, something that Bol-den had been planning for two years. According to Chalmers, Bolden- suggested that the robbery take place around Christmas and on a Monday to maximize the amount of loot. Chalmers told agents that Bolden provided him and Goodwin with the date and times of the Loomis Fargo armored car pickups, information about secu
Chalmers also told FBI agents that after the robbery, Goodwin called Bolden from his cell phone and that they then met Bolden at an apartment complex. Chal-mers said that Bolden took the money out of the bag, placed it in the trunk of Bol-den’s car, and then drove to Goodwin’s residence where each man took $5,000 and agreed to split the rest of the money at a later date. The next night, Chalmers, Goodwin, and two friends went back for the getaway car, drove it to Mississippi, and burned it.
On January 22, 2003, a grand jury indicted Chalmers and Goodwin. On April 23, 2003, a grand jury returned a superseding indictment against Bolden, Chalmers, and Goodwin. The indictment charged Bolden with three counts: interference with commerce by threats or violence, aiding and abetting, in violation of 18 U.S.C. § 1951 (Count 1); carrying/use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 2); and conspiracy to interfere with commerce by threats or violence, in violation of 18 U.S.C. § 1951 (Count 3). Bol-den pleaded guilty to Count 1 and the Government agreed to drop Counts 2 and 3.
In a presentence report, the probation officer assigned to Bolden’s case recommended, pursuant to the 2002 Sentencing Guidelines, a base offense level of 20, a criminal history category of I, and the following enhancements: 6 levels under U.S.S.G. § 2B3.1(b)(2)(B) because a firearm was “otherwise used”; 4 levels under § 2B3.1(b)(7)(E) because the loss was greater than $800,000 but less than $1.5 million; 2 levels under § 2B3.1(b)(l) for taking property of a financial institution; 2 levels under § 2B3.1(b)(4)(B) because a person was physically restrained to facilitate commission of the offense; 2 levels under § 3Bl.l(c) because Bolden was an organizer, leader, manager, or supervisor of the robbery; and 2 levels under § 3B1.3 because Bolden abused a position of public or private trust. These enhancements would have resulted in an offense level of 38.
In a position paper filed with the district court, Bolden objected to each of these enhancements. Bolden also objected to the failure of the presentence report to include a recommendation of a 2- or 3-level reduction for acceptance of responsibility under § 3E1.1.
On March 4, 2005, the district court held a sentencing hearing. First, the district court concluded, as a matter of law, that “if the weapon was pointed, it was otherwise used for purposes of 2B3.1(b)(2).” Although Bolden disputed this legal conclusion, he admitted that a gun was pointed at a security guard during the robbery. The district court then held that a 6-level enhancement was appropriate because a firearm was “otherwise used” during the robbery.
Second, the district court applied a 4-level enhancement because the total loss exceeded $800,000, with the face value of the stolen checks included in that amount. Bolden argued that the checks were worth “no more than the value of the paper that they are written on” because the drawer of each check was still liable to the payee for the amount of each check. The district court rejected this reasoning:
The test isn’t did you recover some money, either from the robber, or because ... somebody knew the micker number.... That’s not the test. The test under the [application] note is the value of the property taken. It’s not who lost money. It’s not where the liability ultimately falls. What’s the value of the property taken? The value of the property, among the parties who were negotiating the instruments, the drawer, if you will, the payee, the depository bank,
... it’s the face amount of the check. That’s the amount the drawer wrote the check for. The amount the merchant accepted the check for. The amount that ... would have been credited to the bank account of the merchant had the robber not intervened and removed the money. I believe that’s a fair reading of what loss means under ... Application Note 3 to 2B3.1.
Third, the district court rejected a 2-level reduction in Bolden’s offense level for acceptance of responsibility under § 3El.l(a). Although Bolden pleaded guilty, the district court concluded that a decrease in offense level for acceptance of responsibility was inappropriate because Bolden did not “come forward and at least assist[] in an effort to locate the” stolen cash and checks and because Bolden waited until only days before his trial date to plead guilty.
Finally, the district court made a number of decisions which have not been challenged on appeal. The court concluded that a 2-level increase under § 2B3.1(b)(l) for taking property of a financial institution was appropriate. The court also accepted the presentence report recommendations of a 2-level increase under § 2B3.1(b)(4)(B) because a person was physically restrained to facilitate commission of the offense and a 2-level increase under § 3Bl.l(c) because Bolden was an organizer, leader, manager, or supervisor of the robbery. However, the court rejected a 2-level increase in Bolden’s offense level under § 3B1.3 for abusing a position of public or private trust.
Applying the Guidelines increases, the district court was left with an offense level of 36 and a criminal history category of I. This corresponded to a Guidelines range of 188 to 235 months. The district court considered whether a within-Guidelines sentence would be “reasonable” and concluded that it would. The court then decided to sentence Bolden in the middle of the Guidelines range after weighing the severity of the crime against Bolden’s lack of criminal history and willingness to plead guilty. The district court sentenced Bol-den to imprisonment for 205 months, supervised release for a term of 3 years, a total assessment of $100, and total restitution of $850,768.03 to be paid to Loomis Fargo and First Tennessee Bank.
On appeal, Bolden makes the following four arguments: (1) the district court erred by applying a 6-level enhancement under § 2B3.1(b)(2)(B) for otherwise using a firearm; (2) the district court erred by applying a 2-level enhancement under § 2B3.1(b)(7)(E) for the amount of loss; (3) the district court erred by not applying a 2-level decrease for acceptance of responsibility; and (4) Bolden’s sentence is unreasonable under
United States v. Booker,
II. ANALYSIS
Each of these arguments is without merit.
A. Offense-Level Enhancement for a Firearm Being “Otherwise Used”
The district court properly enhanced Bolden’s offense level by 6 levels because a firearm was “otherwise used” during the robbery and not merely brand
A firearm was more than merely brandished during the robbery when Bolden’s accomplices, Chalmers and Goodwin, pointed firearms at and threatened Barton, Ingram, and Cotton. Bolden argues that pointing a firearm at an individual is simply brandishing a firearm because it is one form of displaying a firearm. But such action is more than merely displaying a firearm with an intent to intimidate (i.e., brandishing) because by pointing a firearm at an individual and making a demand of that individual, a defendant communicates the implicit threat that if the individual does not comply with the defendant’s demands, the defendant will shoot the individual. In contrast, displaying a firearm with intent to intimidate implies a future act of the defendant — that the defendant has the capability to use the firearm in the future, but is not presently threatening to do so.
This is demonstrated by the facts of this case. When Chalmers and Goodwin encountered Barton, one of them, with a pistol pointed at Barton, yelled, “Get down. Where’s your gun?” and the other, with a gun pointed at Barton yelled, “Put your hands behind your head.” Both of these statements constitute implicit threats; Chalmers and Goodwin were communicating to Barton that if Barton did not follow their directions, he would be shot. Indeed, Barton testified at Bolden’s sentencing that “the events that happened the night of the robbery will be with me for a lifetime.” Similarly, when one of the robbers pointed a gun at Cotton and ordered him to “get back,” the robber was communicating to Cotton that if Cotton did not follow his order, he would shoot Cotton. In both cases, Chalmers and Goodwin more than merely made the presence of their firearms known to Barton and Cotton in order to intimidate them. See U.S.S.G. § 1B1.1 cmt n. 1(c). Instead, Chalmers and Goodwin threatened Barton and Cotton with the infliction of immediate and deadly force if Barton and Cotton did not comply with their demands.
This reading is supported by holdings in other circuits. This circuit has not addressed the issue of when displaying a firearm crosses the line from “brandished” to “otherwise used” under the current Guidelines definition of “brandished.” Other circuits have held that a firearm is “otherwise used” when a defendant points a firearm at an individual and accompanies
Our decision in
United States v. Moerman,
This court in Moerman concluded that “[t]he concept of brandishing includes both pointing the firearm and pointing it in a threatening manner.” Id. In that case, we held that a defendant merely brandished a firearm when, in two separate incidents, he pointed a rifle at a bank teller and demanded that the teller give him money. Id. at 380-81 (defendant told one teller, “Give me your money,” and told the other teller, “Give me all your money — all of it— give it to me”). The court distinguished cases from other circuits where “the defendant’s actions and/or statements directly threatened an individual with the use of the firearm if the person being threatened did not comply with the defendant’s demands.” Id. at 381. The court noted that there was “no claim” in the case “that the defendant threatened to use the firearm with regard to either of the tellers.” Id. The court admitted that it drew “no bright line, realizing that under our de novo review each of these cases must be decided on its own facts.” Id. 2
Moerman
is distinguishable because the application note defining “brandished” has since been amended. The old version stated that “brandished” “means that the weapon was pointed or waved about, or displayed in a threatening manner.” U.S.S.G. § 1B1.1 cmt. n. 1(c) (1998). We reasoned that “otherwise using” had to be more than brandishing, and accordingly had to “go beyond” waving about, or displaying in a threatening manner.
Moerman,
B. Offense-Level Enhancement for Loss from Checks
The district court properly applied the U.S.S.G. § 2B3.1(b)(7) enhancement for the amount of loss. 3 Guideline § 2B3.1(b)(7) requires a 4-level enhancement to the base offense level where the “loss” is more than $800,000 but less than $1.5 million. “ ‘Loss’ means the value of the property taken, damaged, or destroyed.” U.S.S.G. § 2B3.1 cmt. n. 3. In this case, Debbie Lee, Retail Support Manager for First Tennessee Bank, testified before the district court that of the total amount of cash and checks stolen ($926,570), the bank was only able to identify drawers for $75,799.55 worth of checks, leaving a deficiency of approximately $850,770. Loomis Fargo paid the bank $600,000 under a liability provision of their contract with the bank. The bank charged off a total of $250,768.03 in 2002 and 2003. Thus, Loomis Fargo suffered an actual loss of $600,000 and the bank suffered an actual loss of $250,768.03, for a total actual loss of $850,768.03. With respect to these out-of-pocket expenses, the stolen checks were no different than cash because neither the bank nor the merchants were able to identify the drawers of the checks and recover the value of the checks from those drawers. 4 Thus, the district court properly determined that the loss exceeded $800,000, although we do not adopt the district court’s broader rationale that the amount of loss included the face value of all the checks regardless of whether the bank was out the money.
C. Offense-Level Decrease for Acceptance of Responsibility
The district court properly denied Bol-den a 2-level decrease in his offense level for acceptance of responsibility. In making this determination we apply the overall deferential scope of review set forth in
Buford v. United States,
Indeed, with respect to purely factual components of the acceptance of responsibility determination, we reject such determinations only if they are clearly erroneous.
See United States v. Brown,
This leads to the purely legal question of whether the district court may con
In particular, contrary to the argument of defendant, a district court may take into account, in denying a downward adjustment for acceptance of responsibility, a defendant’s failure to reveal the location of stolen valuables. Under Sentencing Guideline § 3El.l(a), a defendant receives a 2-level decrease in his offense level if he “clearly demonstrates acceptance of responsibility for his offense.” It is true that the commentary for § 3E1.1 does not explicitly say that the district court can deny the 2-level decrease if a defendant pleads guilty but fails to cooperate with the authorities in recovering stolen money from a robbery. The commentary states that “[ejntry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct ... will constitute significant evidence of acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n. 3. The commentary also notes that “a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction” to receive the offense-level decrease and “may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a [§ 3El.l(a)] reduction.” Id. § 3E1.1 cmt. n. 1(a). On the other hand, the commentary provides that “appropriate considerations” in determining the offense-level decrease “include ... voluntary assistance to authorities in the recovery of the fruits and instrumen-talities of the offense.” Id. § 3E1.1 cmt. n. 1(e).
Permitting the court to take such noncooperation into account is supported by this court’s previous determination that a district court could consider a defendant’s failure to cooperate with authorities in deciding whether to grant the 2-level decrease under § 3E1.1. In
United States v. Jackson,
Although Jackson is not directly on point because the district court here did not suggest that Bolden has attempted to minimize his role in the robbery or otherwise failed to “own up” to his behavior, Jackson supports the conclusion that a district court may weigh heavily a defendant’s failure to assist the authorities in recovering unlawfully obtained properly. It was accordingly legally proper for the district court in this case to take into account Bolden’s failure to tell police the location of the stolen cash and checks.
Jackson
also forecloses Bolden’s argument that “[t]here are significant potential Fifth Amendment [privilege against self-incrimination] problems with conditioning a reduction in sentence based upon [a] duty of a defendant to speak about the disposition of stolen money in a robbery.” Furthermore, it is not even clear whether there are Fifth Amendment implications of requiring Bolden to disclose the location of the stolen money because such disclosure would not increase the penalty to which Bolden was already subject by pleading guilty to the underlying robbery.
See, e.g., Lefkowitz v. Turley,
Finally, the district court also considered the last-minute nature of Bolden’s plea. This was an appropriate consideration. The Guidelines Commentary states that an “appropriate consideration[ ]” in determining the offense level decrease is “the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.” See U.S.S.G. § 3E1.1 cmt. n. 1(h).
Thus in denying Bolden the 2-level decrease for acceptance of responsibility, the district court found no clearly erroneous facts, and made no legal error. The determination must be upheld in light of the deferential standard of review and the discretion that the Sentencing Guidelines afford a district judge in balancing the factors discussed in the commentary to § 3E1.1.
D. Reasonableness of Sentence under Booker
Finally, Bolden’s sentence is reasonable under Booker, both procedurally and substantively.
Bolden’s sentence is procedurally reasonable because the record demonstrates that the district court appropriately considered the § 3553(a) factors. First, the court considered “the nature and circumstances of the offense.” See 18 U.S.C. § 3553(a)(1). The court stated the following:
Mr. Bolden was the mastermind of this crime. It’s a horrible crime. It involved risk of life. It involved weapons. It involved the possibility—anyone easily could have been killed under this circumstance .... Certainly the management of the Mall was put at risk of death or injury. Mr. Bolden’s co-workers, the people he worked with every day, were at risk of death or serious injury_Mr. Barton, the Guard, was placed on the ground with a gun to him. He easily could have been killed. He was certainly traumatized. The risk of life, it’s a miracle someone wasn’t killed during the course of this thing.
The district court also commented on the amount of loss and the fact that Bolden “thought of the crime, he initiated it, he
Second, the district court considered “the history and characteristics of the defendant.” See 18 U.S.C. § 3553(a)(1). The court noted that Bolden had in his favor “a criminal history of zero” and had “never committed a crime that produced a criminal history point in his life.”
Third, the district court considered “the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, ... to provide just punishment for the offense[,] to afford adequate deterrence to criminal conducts and] to protect the public from further crimes of the defendant.” See 18 U.S.C. § 3553(a)(2)(A)-(C). The court stated the following:
This was an extremely serious offense. It was an offense that because it was in a highly public area could have been much more serious than it was. And one does have to state the seriousness of that offense, promote respect for the law, and provide for just punishment. And I have already said that I think a non Guideline sentence would not and could not do that. Nor would it afford adequate deterrence for criminal conduct. If 50 months [Bolden’s counsel asked for a 60 month sentence] is adequate for putting human life at stake, terrorizing people, stealing a million dollars, you might as well give away the bank keys. So, I also need to protect the public. I am not convinced that a non Guideline sentence would protect the public under these circumstances.
Finally, the district court considered “the kinds of sentence and the sentencing range established” by the Sentencing Guidelines and “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(4) & (6). The court agreed with the Government that the appropriate Guidelines range was 188 to 235 months, which corresponded to an offense level of 36 and a criminal history category of I. The court also noted that a within-Guidelines sentence took into account the facts and circumstances of this case and promoted uniformity.
Bolden objects to the procedural reasonableness of his sentence because the district court imposed what it thought to be a “reasonable” sentence, instead of complying with the requirement of 18 U.S.C. § 3553(a) to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in” § 3553(a)(2). True, this court has made clear that “a district court’s job is not to impose a ‘reasonable’ sentence. Rather, a district court’s mandate is to impose ‘a sentence sufficient, but not greater than necessary, to comply with the purposes’ of section 3553(a)(2). Reasonableness is the
appellate
standard of review in judging whether a district court has accomplished its task.”
United States v. Foreman,
Bolden’s sentence is also substantively reasonable. This court applies a rebuttable presumption of reasonableness to within-Guidelines sentences.
See, e.g., Davis,
III. CONCLUSION
For the foregoing reasons, we AFFIRM Bolden’s sentence.
Notes
. It is appropriate in this case to review de novo the determination of whether the firearm was "otherwise used.” The issue as presented to us is one of the meaning of the words.
See United States v. Moerman,
. Judge Norris dissented in
Moerman.
He argued that "other circuits have found that pointing firearms in a threatening manner can constitute 'otherwise using’ based upon the proximity of the weapon to the victim.”
Id.
(Norris, J., dissenting). Quoting from a District of Columbia Circuit case, Judge Norris noted that " '[t]he underlying rationale of the majority [of the circuits] view suggests that 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.' "
Id.
(quoting
United States v. Yelverton,
. Again, with facts not in dispute, we review de novo.
See United States v. Rothwell,
. The Government does not rely on this argument, although the Government does state that “the bank from whom the checks were taken certainly suffered a loss in having to reimburse the mall merchants.’’ However, the district court heard testimony as to the amount of liability loss that Loomis Fargo suffered and the amount of actual loss that the bank suffered, so this court may affirm on these alternative grounds.