U.S. v. Dixon

• Decision Date: 23 September 1992
• Docket Number: 92-3127,Nos. 92-3124,s. 92-3124
• Citation: 982 F.2d 116
• Parties: UNITED STATES of America v. Terry D. DIXON, John A. Fletcher, Terry D. Dixon, Appellant. UNITED STATES of America v. Terry D. DIXON, John A. Fletcher, John A. Fletcher, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 116

982 F.2d 116

UNITED STATES of America v. Terry D. DIXON, John A. Fletcher, Terry D. Dixon, Appellant.

UNITED STATES of America v. Terry D. DIXON, John A. Fletcher, John A. Fletcher, Appellant.

Nos. 92-3124, 92-3127.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Sept. 23, 1992.

Decided Dec. 30, 1992.

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.

Present: HUTCHINSON and ALITO, Circuit Judges, FULLAM, District Judge. ^*

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellants, Terry D. Dixon (Dixon) and John A. Fletcher (Fletcher) appeal final judgments of conviction entered against them in a criminal case by the United States District Court for the Western District of Pennsylvania. They were convicted after a jury found them guilty of conspiracy to rob a federally insured bank in violation of 18 U.S.C.A. § 371 (West 1966) and bank robbery in violation of 18 U.S.C.A. § 2113(a) (West Supp.1992) and 18 U.S.C.A. § 2 (West 1969). On appeal, they raise many issues. Only the sentencing issue Dixon raises requires discussion. The other 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.

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.

On February 26, 1992, the district court increased Dixon's base offense level by three for brandishing, possessing or displaying a dangerous weapon, attributing to Dixon the actions of his co-conspirator, Stephanie Fletcher, who pretended she had a gun in her hand beneath a concealing towel. As a result of this and several other enhancements under the Guidelines, the district court sentenced Dixon to one hundred twenty-five months of imprisonment, three years of supervised release, and $100.00 in special assessments. On March 5, 1992, the district court sentenced Fletcher to concurrent sentences of sixty months of imprisonment on Count One and two hundred thirteen months of imprisonment on Count Two, three years of supervised release and a $100.00 special assessment.

Dixon filed a timely notice of appeal from his judgments of conviction and sentence on March 5, 1992. Fletcher filed a timely notice of appeal on March 10, 1992. Their appeals were consolidated on April 30, 1992.

II.

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.

In the course of FBI interrogation, Stephanie Fletcher named her half-brother, John Fletcher, and Dixon as participants in the robbery. Both Dixon and John Fletcher were later apprehended and Stephanie Fletcher cooperated in their prosecutions. According to Stephanie's testimony, Dixon masterminded the robbery and instructed John and her on how it could be accomplished. 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.

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.

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.

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).

Dixon first contends that the actions of Stephanie Fletcher cannot properly be attributed to him under section 1B1.3(a)(1) of the Guidelines. Even if her conduct could be attributed to him, he also contends that the district court could not increase his base offense level by three for brandishing a dangerous weapon pursuant to section 2B3.1(b)(2)(C) of the Guidelines because she had nothing in her hand underneath the towel.

On review, a district court's findings of fact underlying an upward adjustment in a Guidelines sentence can be set aside only if they are clearly erroneous. See United States v. Inigo, 925 F.2d 641, 658-59 (3d Cir.1991). The question whether Stephanie Fletcher possessed an object that constitutes a "dangerous weapon" involves construction of both that phrase and the term "object" in Guideline section 2B3.1(b)(2)(C). To that extent, it presents a legal issue subject to plenary review. United States v. Frierson, 945 F.2d 650, 653 (3d Cir.1991), cert. denied, --- 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.

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 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:

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.

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, we think a remand is unnecessary because the record shows that Dixon had a duty to anticipate or foresee that a...