*1 BLACK, Bеfore DUBINA and Circuit BECHTLE*, Judges, and Senior District Judge.
DUBINA, Judge: (“Bates”) Lyne pled Marvin guilty to bank in violation of 18 U.S.C. 2113(a). The district court sentenced imprisonment, Bates to 78 months and im- posed a three-level enhancement to his “brandishing], base offense level for dis- playing], possessing]” weapon, and a two-level enhance- ment for carjacking, pursuant contends applying distriсt court erred in the three- pos- level enhancement because he did not sess a when he commit- robbery. Although ted the bank * Bechtle, vania, sitting by designation. C. Honorable Louis Senior U.S. Dis- Judge trict Pennsyl- for the Eastern District of *2 the way plate police. car and its license to unarmed, possession the he simulated at a reaching nearby into discoverеd the car con- weapon by Police of a rob- he during the bank store and arrested Bates as venience pants his waist band unique backyard neighboring cir- of a ran into the bery. ¶ ease, (Id. 10). we affirm of this The resident of that cumstances home. imposition of the three-level proceeds district later found the entire of home enhancement, to U.S.S.G. pursuant in her and robbery backyard hidden 2B3.1(b)(2)(E). affirm the dis- also finding to the authorities. reported this two-level en- imposition of the trict court’s Charles Para- During investigation, hancement, to pursuant (“Parazine”) reported police to that on zine 2B3.1(b)(5), because, under the facts he sat day of the bank while case, to take a motor attempted Bates porсh, Bates ran onto his on his front by force and violence person from a vehicle (Id. keys. car and demanded his porch the case remand by intimidation. We ¶ 12). his Parazine told Bates that When however, court, to correct house, him grabbed in his Bates keys were to accord with written him Para- arm and forced inside. by the of sentence. oral out pulled Bates to a dresser and zine led ran out of the house. handgun. a Bates I. BACKGROUND (Id.). a branch of SouthTrust Bates entered plea, the Following guilty his Pensacola, Florida, to cash a blank Bank During the sen- Bates. court sentenced Bates teller informed check. When the imposed a three- tencing, the district check, was unable to cash the that she of dan- for a level еnhancement bag and gave yellow plastic her a Bates gerous weapon pursuant teller, said, “give your me according to the two- and an additional ¶ (PSI 5). began to The teller money.” carjacking pursuant level enhancement heard when she out her “bait bills” pull objected to both Bates with lady, don’t mess say, “Listen enhancements, over- the district cоurt but ¶ (Id. 6). me; you.” hurt don’t make me objections and sentenced ruled the reach then observed Bates The teller guideline range— upper end of the to the band into his waist right hand (Rl-20-15). 78 months. area, simulating and clearly implying teller stated of a The presence II. DISCUSSION was reach- fearful that Bates
that she was provide did not gun, for a so she ing 2B8.1(b)(2)(E) Enhance- A. Section handed Bates bills.” The teller “bait ment money and Bates amount of undisclosed (Id.). teller’s the bank. departed In- the Presentence objected to robbery, re- witnessed the supervisor, who (“PSI”) recommending vestigation Report at the victim that Bates looked ported enhancement a three-level said, crazy,” then “Lady, you are and teller during the commis- aof utterеd pocket reached into he robbery a sion ¶ 7). (Id. like, you.” “I’ll kill something a two- conceded that He the rob- video camera recorded The bank’s teller’s account bery and confirmed the appropriate be would crime. teller, but made a threat since he (E) apply did not argued that subsection Bates leav- saw supervisor The teller’s brаndish, display, or he did not geta- because description a reported ing (E) or an that could tence to subsection where the govern- as “victim of was intimidated responded ment that no difference exists placing of a hidden in her side.” simulating weapon between and simulat- 1452. We reached that conclu- ing because each sion though even the victim did not see the *3 creates the risk that law enforcement will object possessed by the defendant. See id. violence, respond thereby with increasing at 1455. In arriving decision, that we everyone the risk to involved. The district agreed with the Third Circuit’s rationale court objection, overruled Bates’s finding v. United States 982 122 F.2d that purpose “the of that enhancement is (3rd Cir.1992), “that dangеr of a vio- threat, the indication of a weapon.” response lent that can flow pretend- (R3-8). brandish, ing to display, or a sim- weapon ulated in perpetrating a robbery is challenges the district court’s just as real toy whether is a ruling on arguing appeal, that the re- gun, Vincent, or a body part.” concealed quirement dangerous for the weapon en- 121 F.3d at 1455. we held that hancement cannot be satisfied without the a three-level justified enhancement was of an actual or an ob- “by the threat of a violent or deadly con- ject that can be as weapon. a frontation that can be precipitated by sim- disagree. ulating possession of a dangerous Section of the sentencing wеapon.” Id. guidelines provides that during the com- Similarly, in Shores, United States v. mission of a bank (11th 966 F.2d Cir.1992), 1383 we stated court should enhance the base offense level that possession toy gun of a during the “if brandished, a was commission of a bank constitutes displayed, or possessed.” The commen- “brandishfing], displaying], pos- tary provides that an “[w]hen that sessing]” a dangerous weapоn under the appeared dangerous to be a weapon was sentencing guidelines, long as as the toy brandished, displayed, possessed, treat “ gun ‘appears’ to be a dangerous weapon.” dangerous as a for the Id. at 1387. We stated that “possession of (b)(2)(E).” purposes subsection a gun, just toy as an unloaded comment, gun, is 2B3.1, (n.2); see considered оf a dangerous Miller, United States v. weapon because of its potential be dan- (11th Cir.2000) (“Based 1052 on plain gerous.” Id. If someone toy gun, detects a
language of commentary, we have rec- may he react to it deadly force. Id. ognized which appear to be Thus, Shores, as as in well Vincent and dangerous weapons should be treated for Woоds, we focused on appearance sentencing purposes as if they actually dangerous weapon as potential well as the were dangerous weapons.”).
dangerous consequences of such appear-
circuit,
ance.
the critical factor for
application
Applying
whether the
our precedents
defendant
ap
intended the
pearance
ease,
present
we
dangerous
a
conclude that the
weapon. See
Woods,
correctly
States v.
applied
F.3d
three-level en
(11th Cir.1997);
Vincent,
United States
hancement.
simulated
Cir.1997).
what
For
example, in
we
that a
concluded
When Bates
reached into his
waist
district court properly
band,
a sen-
enhanced
the victim teller perceived Bates to
statute,
Woods,
a federal
or is
127 Constitution or
reaching for
with,
(E)
plainly
inconsistent
or a
erroneous
en
(imposing subsection
F.3d at 993
of,
reading
guideline,”
argues
percep
on the victim’s
hancement based
authority
be-
lacks
gun
possessed
defendant
tion that
cause it is inconsistent with the federal
robbery).
during the commission
Therefore, he asserts that
never saw
the victim teller
though
Even
two-
imposing
district court erred
impo
object, the district
enhancement.2
three-level enhancement
sition of the
“possess”
definition of
because the
proper
2B3.1(b)(5)
guideline
At the time
section
to be visible
does not
written,
criminalizing
the statute
car-
Vincent, 121
possessed. See
order to be
jacking defined the crime as
John
F.3d at
*4
possessing a firearm as defined
[while]
Cir.1994)).
1352,
son,
1354
title,
by
tak[ing]
section 921 of this
Bates’s hand simulated
Because
transported,
that has
motor vehicle
been
dangerous weap
what
in interstate or for-
shipped, or received
on,
to
teller
Bates
and the victim
or
eign
person
pres-
commercе from the
weapon,
we affirm
possess dangerous
by
violence
ence of another
force and
or
imposition of the three-level
district court’s
intimidation,
by
attempting]
or
to do so.
to
(1992).
basis,
2B3.1(b)(2)(E).1
§
18
2119
With
U.S.C.
§
guidelines
carjacking
defined
as the
“taking
attempted taking of a motor
or
1(b)(5) Enhancement
B.
2BS.
Section
person
presence of
vehicle from the
оr
im
by
to the district court’s
intimi-
by
another
force and violence
comment,
2B3.1(b)(5),
§
dation.” U.S.S.G.
position of
two-level enhancement
(n.l).
1994, Congress
18
In
amended
of a rob
carjacking during the commission
by substituting
§
“with the
2119
U.S.C.
§
bery pursuant
to
bodily
to cause death or serious
intent
sentencing guideline
contends that
a firearm as defined
“possessing
harm” for
commentary
with the fed
“is inconsistent
in section 921 of this title.” Violent Crime
implement”
it
eral statute which
seeks
Act of
Law Enforcement
Control &
has
“guidelines
and that the
Commission
103-322,
60003(a)(14),
§
Pub.L. No.
commentary
neglected to amend
(1994).
Sentencing
Stat.
statutory
amendment
consistent
guide-
not amended the
Commission has
intent as an element.”
adding specific
carjacking to reflect the
definition of
line
22).
(Appellant’s
Relying
Brief at
on Stin
specific
intent
addition of the
States,
36, 38, 113
son United
U.S.
2B3.1(b)(5),
§
to the statute. See U.S.S.G.
(1993),
which
actual the guidelines but commen- tary purpose controls for the of determin- BECHTLE, Judge, Senior District sentence).
ing guideline dissenting: Therefore, it is irrelevant whether As set forth in the opinion, specific necessary intent Bates was impris- sentenced to 78 months support because the facts both the guide onment pleading guilty аfter to bank rob- lines statutory definition and the definition 2113(a). bery, § in violation of 18 U.S.C. carjacking. By demanding the car join my colleagues in affirming the keys, grabbing arm, Parazine’s and forcing imposition court’s of the two level enhance- house, him into the Bates attempted to ment of Bates’s sentence take by Parazine’s car using force and 2B3.1(b)(5) § U.S.S.G. dur- by violence or intimidatiоn. This satisfies ing the commission of a and in both Accordingly, definitions. for these remanding the case to the district court to reasons, we affirm the district im court’s correct written to accord position of the two-level pur with the oral of sentence. § suant to U.S.S.G. However, myself I find having to disagree my colleagues regarding the feature C. Supervised Release аppeal of this that addresses the district imposition aof three level enhance- At the sentencing hearing, dis ment of Bates’s sentence trict court unambiguously announced 2B3.1(b)(2)(E). § U.S.S.G. Bates’s term of supervised release as five (R3-13). years. The written judgment, undisputed It is that Bates should have however, states the supervised term of received at least a two level enhancement 1992) (affirming enhancement where de of his sentence possessed toy a threat fendant gun); because he made (3d Cir.1992) undisputed It is also 982 F.2d to the bank teller. (affirming that Bates did not have enhancement where defendant his control which was covered ap or under used hand towel which “brandished, displayed, pos peared gun). Recently, either this circuit restated primary importance sessed.” U.S.S.G. of an ob 2B3.1(b)(2)(E) view, ject my imposing U.S.S.G. an enhancement under 2B3.1(b)(2)(E): “[bjased this section interpreting decisions U.S.S.G. on the plain language that can be [to Guideline], recognized as a See United States we have (11th appear Cir. which weapons 1997) (“[W]e a 3 enhance sentencing they hold that should be treated for as if proper actually when a robber uses a fin dangerous weapons.” ment were Unit Miller, ger other hard to cause or some States v. (11th Cir.2000) added)
victim to believe that it is a (emphasis added). cases). weapon.”) (emphasis upon by legislature
All the decisions relied
the ma
drew the line for the
jority
application
imposition
are cohesive
their
the enhancement under
in that the de
point
employed
an inanimate
fendant
where
evidence demonstrated that the
commission of the crime.
possessed weapon
See United
or an ob-
Woods,
ject.
spoken
States v.
or not the vantage determined
should of the victim subjective belief
point of of an vantage point from the than
rather evidence asso-
objective assessment See, e.g., Unit- the defendant.3
ciated with Woodard, 24 F.3d States
(6th Cir.1994) objective standard (applying ap- whether defendant determining dangerous weapon).
peared nor of the statute language
Neither support the the decisions reasoning of respectfully dissent.
majority’s view. America, STATES UNITED FL, Jr., Clearwater, E. Lykes, Charles Plaintiff-Appellee, Plaintiff-Appellant. Hollis Rothstein- Phipps, Tamra Susan Kel, SMITHEN, a.k.a. a.k.a. Elwin Youakim, FL, Plaintiff-Appel- Tampa, Keith, Mambo, Raga, a.k.a. a.k.a. lee. Plaintiff-Appellant. No. 99-12723
Non-Argument Calender. Appeals, States Court ANDERSON, Judge, Before Chief *7 Eleventh Circuit. DUBINA, Judges. TJOFLAT 6, 2000.
June
PER CURIAM: decide in we are asked to sole issue 2114(a) this case is 18 U.S.C. whether seriously that in majority 3. It could not be contended agree that where a with the vic- to stand level enhancement order for two dangerous object, a three saw a 1im never U.S.S.G. under threat may imposed still be be- level enhancement death, subjective that the victim’s belief ‘possess’ does cause "the definition not fact, made, when in such a threat was visible in order made, no evidence threat shows possessed." F.3d at 1455 support A such an enhancement. would Johnson, three enhancement (9th Cir.1994)). disagreement My be no A should different. or not the whether perception by victim that the victim, actually perceived sup- possessed a should not requires still if, fact, the evidence port an objec- object which has the no perpetrator had shows that' the dangerous weapon. appearance tive object.