*1 I contravenes I also believe that But Craft and would Court decisions Supreme
recent that this case be
therefore recommend en banc.
visited America,
UNITED STATES
Plaintiff-Appellee, MOERMAN,
Eric Defendant- John
Appellant.
No. 99-1783. States Court of
Argued: Oct. and Filed: Nov. Decided briefed), (argued Daniel Y. Mekaru Attorney for
Office of the United States Michigan, District of Grand the Western MI, Rapids, Appellee. Tonya Stanley (argued), L.
Frank (briefed), The Krause Law Krause-Phelan MI, Firm, Appellant. Rapids, Grand NORRIS, Before: GUY and HOOD, Judge.* District Judges; JR., J., GUY, RALPH B. delivered HOOD, D.J., court, in which opinion of the (pp. 381- joined. ALAN E. J. 82), separate dissenting delivered opinion.
OPINION GUY, JR., Judge. RALPH B. Moerman, Defendant, waiving Eric John indictment, guilty plea entered counts of charging three information of 18 robbery violation armed bank * Hood, designation. lucky, sitting by Joseph M. The Honorable Judge Eastern District of Ken- District *2 presents purely legal it a single presented § 2113. The issue because U.S.C. Kushmaul, question. See United States v. appeal in this (6th Cir.1998). The a six-level enhancement correctly imposed Sentencing firearm in the com- using” a for “otherwise G u of those bank robberies. mission of two i d e only “brand- contends that he Defendant l i n and therefore should ished” the firearm only a s subject to five-level en- have been e (A) of the two counts. Our hancement on each in- discharged, If a firearm was only (B) convinces us that levels; de novo review by 7 if a crease firearm was (C) have been used, levels; enhancement should five-level by increase otherwise and remand for imposed, brandished, and we reverse if a firearm was resentencing. levels;.... possessed, by or increase Sentencing Guidelines Manual
I.
(U.S.S.G.)
2B3.1(b)(2)
The
guidelines define “brandished” and “other-
dispute
no
that the facts as set
in
wise used” U.S.S.G.
report accurately
in
presentence
forth
(n. 1).
guidelines
explain
The
that:
conduct in con-
describe the defendant’s
“
danger-
with reference to a
‘Brandished’
two
robberies at
nection with the
bank
firearm)
weapon (including
ous
a
means
in
II
III.
issue Counts
was
or waved
25, 1999,
January
defendant entered
On
about,
in
displayed
threatening
or
a
man-
Michigan National Bank armed with a
“
(n. 1(c)).
ner.” Id. at
‘Otherwise used’
approached
scope.
rifle that had a
He
(in-
dangerous weapon
with reference to a
was still at the
teller while
customer
cluding a
means
window. Defendant cut
front of the
discharge
did not amount to the
a fire-
the barrel
bank customer and used
of the
brandishing,
but was more than
dis-
in-
push
rifle to
him aside. Defendant
playing,
possessing a firearm or other
move,
him
stating:
structed
“Get out of
dangerous weapon.”
at
1(g)).
Id.
you.”
way,
this doesn’t concern
De-
Kushmaul,
As we noted
fendant then
the rifle at the teller
par
these definitions are “not
money.”
your
and demanded: “Give me
Nonetheless,
ticularly
useful ones.”
$1,272.
gave
The bank teller
defendant
and,
represent
starting point
in our
10, 1999,
February
On
defendant robbed
are as far as
we need to
Bank. He
wear-
the Standard Federal
resolving this issue.
It is clear that the
ing jacket
pulled
with the
over his
hood
sentencing guidelines
scheme of the
calls
head
the bot-
and a bandana
covered
degrees
for three different
of increase in
portion
During
tom
of his face.
this rob-
depending upon
the base offense level
bery,
possessed
shotgun.
defendant
He
during
nature of the use of the firearm
approached the teller while a customer
commission of the crime. While there was
was still at the window and shoved the
here,
discharge
of the firearm
there
away
with his hand or forearm.
clearly
brandishing
least
Defendant then
at the
Thus,
during
both robberies.
your
teller and demanded:
me all
“Give
question boils down to whether the use of
money-
give
it to me.” The
—all
it—
brand
firearm somehow went
$3,625.
gave
bank teller
ishing, as that
term is defined
guidelines. We conclude that it did not.
II.
concept
brandishing
includes both
ap
We review the district court’s
the firearm and
plication
sentencing guidelines
precisely
manner. That
case, they
differences.
without
the one
in connection
was done
what
distinguish
seek
to the other
regard
robbery. With
bank
un-
The latter term
using.”
a cus-
moved
defendant also
robbery,
bank
“more than
something
as
defined
helpfully
firearm.
barrel
aside with
tomer
discharging
yet short of
brandishing”
by defendant
conduct
additional
*3
question.
threatening state-
aby
accompanied
majority
theAs
1(g))
Rather,
made
ment, however.
observes,
*4
fear
as to facilitate
part
means that all or
weapon
with a
and ultimately
presence
or the
of the to facilitate the commission of the
crime.”
otherwise made known to another
application note not in effect at the time of
sentencing controls the resolution of this
issue, it does lend support to the less
expansive reading of “brandishing” as
summarized in Yelverton. JAHN, Deborah Plaintiff-Appellant, my
In helpful test for determin- ing when use of a progresses “brandishing” to using” can be EQUINE SERVICES, PSC; Scott D. found in the common law definition of Bennett, Mary D.V.M.; Walling Beth criminal assault: ford, D.V.M.; Griffin, and Richard [Tjhere must be the commencement of D.V.M., Defendants-Appellees. act, which, if prevented, would
produce battery; and there must No. be 99-5647.
such an attempt or offer ... as will Court of convey to the mind as- saulted a well apprehension of personal injury, and within such distance Argued: 4,May harm may it if follow carried out. Decided and Filed: Nov. 6A Attempt C.J.S. Offer case, that, it is undisputed in both robberies discussed majority, defen- his at a teller and money.
demanded I respectfully disagree
with the majority’s statement, “There is no
claim in this case that
threatened to use the firearm with regard
to either of the tellers or the customer.”
Surely, by pointing the
the Notes
Application
effect
the
the
to
statement
nonthreatening
case
the
this
out of
used
move
version
Guidelines
should
that the
pointing
not concern
to include
matter did
define
this
way because
init
a threaten-
displaying
and
the firearm
him.
ing manner.
cites to
government
Although the
“otherwise
an
in which
of cases
number
have found
However,
circuits
other
none of
upheld,
enhancement
used”
in a
manner
firearms
See,
here.
position
its
support
the cases
using” based
“otherwise
constitute
can
Rucker, 178 F.3d
v.
States
e.g., United
the
weapon to
proximity
the
upon
denied,
(10th Cir.),
528
cert.
1369,
Wooden,
1371
See,
v.
States
e.g., United
victim.
386,
301
L.Ed.2d
145
957, 120 S.Ct.
Cir.1999)
U.S.
(11th
held
(gun
674, 676
F.3d
169
Wooden, 169 F.3d
v.
(1999); United States
forehead
victim’s
the
a half-inch
v.
(11th Cir.1999);
States
674,
United
cases).
676
(collecting
brandishing)
more than
(10th Cir.1997);
702, 705
F.3d
Gilkey, 118
has
Columbia
The District of
238,
Johnson,
F.2d
931
States v.
United
of
majority view
the
cently summarized
Cir.1991).
of the eases
(3d
In each
240
terms:
using” in these
the defen
government,
upon
the
relied
[Wjheré
statements
actions
dant’s
and/or
verbal
further
and some
person
at a
of
the use
with
an individual
threatened
the
accompanies
or order
threat
being threatened
person
if the
the firearm
of
commission
facilitate
to
the
of
de
defendant’s
the
comply with
did not
crime,
enhancement
underlying
the
case that
this
no claim in
mands.
justified.
weapon is
the
use of
for
fire
to use
threatened
Wooden, 169
v.
See,
States
e.g., United
either
regard to
with
Cir.1999);
(11th
Unit
674, 676-77
F.3d
the customer.
F.3d
Gilkey, 118
v.
States
ed
line, real-
bright
draw
attempt to
We
v. Her
Cir.1997);
(10th
States
United
each
review
(7th Cir.1997);
that under
izing
737,
nandez,
741
106 F.3d
on its own
decided
926,
cases
of these
927
Fuller,
F.3d
v.
States
United
with
Here,
are comfortable
Elkins,
we
facts.
v.
(9th Cir.1996); United States
the defen-
of
Cir.1994);
(8th
conclusion
952, 953-54
F.3d
brandishing the
238,
Johnson,
did
931 F.2d
v.
States
United
v.
weapon.
Cir.1991);
(3d
States
United
240-41
(5th
985,
Rosa,
911 F.2d
De La
REMANDED
and
REVERSED
of
Cir.1990).
rationale
underlying
the sen-
recalculating
of
purpose
limited
key
that the
suggests
majority view
increase,
rather
five-point
using the
tence
(or other
increase,
consideration
and
resen-
six-point
than
specific
at a
weapon) was
guide-
the new
with
tencing
accordance
facili
so as to
create fear
an effort
range.
line
ulti
tate
Judge,
ALAN
commission
mately to facilitate
Hernandez, 106
dissenting.
See, e.g.,
crime.
927;
Fuller,
741;
F.3d
the Sentenc-
how
appeal illustrates
Gordon,
at 1388.
19 F.3d
distinctions
frequently draw
ing Guidelines
Yelverton,
531,
and demanding money, defendant intended
-
(D.C.Cir.1999),
denied,
cert.
convey
consequences
threat of dire
-,
1255,
120 S.Ct.