U.S. v. Dunigan

• Decision Date: 20 January 2009
• Docket Number: No. 07-10922.,07-10922.
• Citation: 555 F.3d 501
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jonas M. DUNIGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

555 F.3d 501

UNITED STATES of America, Plaintiff-Appellee, v. Jonas M. DUNIGAN, Defendant-Appellant.

No. 07-10922.

United States Court of Appeals, Fifth Circuit.

January 20, 2009.

Shawn Lee Smith, Bret E. Helmer, Fort Worth, TX, for U.S.

Kevin Joel Page, Dallas, TX, for Dunigan.

Appeal from the United States District Court for the Northern District of Texas.

Before SMITH and SOUTHWICK, Circuit Judges, and RODRIGUEZ,^* District Judge.

JERRY E. SMITH, Circuit Judge:

Jonas Dunigan was found guilty of bank robbery. He appeals his conviction and sentence, and we affirm.

I.

Shortly after a bank, located in a Kroger grocery store, opened for business, Dunigan entered it, jumped over the top of the counter, pointed a weapon at bank employee Erica Dennis's face, and demanded that she give him the money. Witnesses said Dunigan wore a gray sweatshirt, a hat with a white bill, a white bandana with a floral design, and athletic shoes. Dunigan got the money, put it into a black nylon bag, and fled. A witness saw a white Dodge Avenger with a license plate containing the letters "H" and "Q" leaving the area.

FBI Agent Kleinlein investigated the robbery. He searched the area surrounding the store for a white Dodge Avenger, locating one with the license plate H01XHM. Thinking the witness had misidentified the "Q," he contacted the Texas Department of Transportation ("TxDOT") and found out that there was no white Dodge Avenger registered in Texas with a "Q" in the license plate.

He then obtained a search warrant for the vehicle and the apartment of its registered owner, Samantha Mattingly, who was Dunigan's girlfriend. When Kleinlein searched the apartment, he found a BB gun, a white hat, a gray sweatshirt, a white bandana, a brown Kroger shopping bag, Nike athletic shoes, and two nylon bags, all similar to the items witnesses saw at the robbery. Dunigan's physical appearance was also similar to the descriptions given by witnesses.

Kleinlein testified about his investigation, including his call to TxDOT and the material he learned from the witnesses. Dunigan objected to some of that testimony as being hearsay, but the court overruled the objections. During the closing statements, the prosecutor made several arguments, including that Dunigan was a gambler and was gambling during the robbery. Dunigan was convicted and sentenced to seventy-eight months in prison.¹

II.

Dunigan alleges a procedural error occurred when the district court increased his punishment four levels under U.S.S.G. § 2B3.1(b)(2)(D) because he "otherwise used" a "dangerous weapon" during the robbery. He objects to the enhancement on two grounds. First, he argues that his use of a BB gun during the robbery was "brandish[ing]" a weapon rather than "otherwise us[ing]" a weapon.² Second, he contends the BB gun was not a "dangerous weapon."

This court reviews sentencing decisions for abuse of discretion. United States v. Rowan, 530 F.3d 379, 381 (5th Cir.2008). The process of review is bifurcated: First, we ensure that the district court did not commit a significant procedural error, and second, we consider the "substantive reasonableness" under an abuse of discretion standard. See Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597-98, 169 L.Ed.2d 445 (2007). A procedural error occurs where a court fails to calculate the guidelines properly, treats them as mandatory, fails to consider 18 U.S.C. § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence, including an explanation for any deviation from the guideline range. See id. at 597.

A.

We first examine whether the court abused its discretion when finding that Dunigan "otherwise used" his gun rather than "brandished" it.

"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.

U.S.S.G. § 1B1.1, cmt. n.1(c). "`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." Id. cmt. n.1(I).³

This court addressed the distinction between "brandished" and "otherwise used" in several cases, most notably United States v. Gonzales, 40 F.3d 735, 738-40 (5th Cir.1994).⁴ The current definitions in the guidelines, however, were changed in 2000.

The former version stated that "brandished" means the weapon was pointed or waved about or displayed in a threatening manner. U.S.S.G. § 1B1.1 cmt. n.1(c) (1998). "[U]nder the current Guidelines, the definition of `brandished' can mean as little as displaying part of a firearm or making the presence of the firearm known `in order to intimidate.'" United States v. Bolden, 479 F.3d 455, 463 (6th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 175, 169 L.Ed.2d 119 (2007) (citing U.S.S.G. § 1B1.1 cmt. b.1(c) (2002)). Since these changes were made, we have examined the issue of "brandished" versus "otherwise used" only once, in United States v. Williams, 520 F.3d 414, 423 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 111, 172 L.Ed.2d 89 (2008), in which we adopted the interpretation of U.S.S.G. § 2B3.1(b)(2) contained in United States v. Paine, 407 F.3d 958, 963-64 (8th Cir.2005), and United States v. Orr, 312 F.3d 141, 144-45 (3d Cir.2002).

The use of weapons in Williams, Paine, and Orr is similar to Dunigan's use of his BB gun. In Williams, the defendant pointed and swung a "shank" at a police officer. Williams, 520 F.3d at 423. The court noted that the defendant did "more than just display the shank or make its presence known in order to intimidate," which would have been brandishing. Id. Instead, the defendant had "otherwise used" the shank under U.S.S.G. § 2B3.1.⁵ Id. In Paine, the defendant drew a weapon, pointed it at his target, put his finger on the trigger, and said, "I mean it." Paine, 407 F.3d at 964. The court held that the weapon had been "otherwise used" instead of "brandished," court noting that the 2000 amendment "was intended to include at least some instances involving pointing a weapon within the definition of `otherwise used.'" Id. Finally, in Orr, the defendant pointed his gun at an assistant manager's head and ordered her to empty money into a bag. Orr, 312 F.3d at 145. The court found that this constituted a "specific threat" and thus fell under "otherwise used" rather than "brandished." Id.

Examining Williams, Paine, and Orr, we can determine when it is appropriate to utilize "otherwise used" instead of "brandished." The threat to the victim must be specific rather than general. See Williams, 520 F.3d at 423; Paine, 407 F.3d at 964. Displaying a weapon without pointing or targeting should be classified as "brandished," but pointing the weapon at any individual or group of individuals in a specific manner should be "otherwise used."⁶ To the extent that this new framework conflicts with our previous distinction between an "implicit" and "explicit" threat,⁷ that framework no longer governs, in light of the amended guideline and the caselaw interpreting it.

When Dunigan robbed the bank, he jumped over the counter, pointed the BB gun in Dennis's face, and shouted "shut the f*** up, b****" and "give me all your money." By pointing the gun at Dennis's face, as opposed to merely displaying it for intimidation purposes, Dunigan "otherwise used" the gun rather than "brandished" it. The district court properly enhanced the sentence.

B.

We examine whether the court committed plain error in finding that Dunigan qualified for § 2B3.1(b)(2)(D) enhancement by using a "dangerous weapon." Under Gall, 128 S.Ct. at 597-98, if a defendant challenges the reasonableness of his sentence, we review for abuse of discretion. If the defendant does not challenge the reasonableness in district court, however, we review for plain error.⁸

Although Dunigan challenged reasonableness in district court, he did not do so on this specific ground. "Where the defendant has failed to object on specific grounds to the reasonableness of his sentence, thereby denying the court the opportunity to identify and correct any errors, we review for plain error." United States v. Casper, 536 F.3d 409, 416 (5th Cir.2008) (citation omitted), petition for cert. filed (Nov. 10, 2008) (No. 08-7228). "An error is considered plain, or obvious, for purposes of this court's plain error inquiry only if the error is clear under existing law." United States v. Maturin, 488 F.3d 657, 663 (5th Cir.2007) (citation omitted).

Under Dunigan's reading of U.S.S.G. § 2B3.1, a BB gun would be considered a dangerous weapon under § 2B3.1(b)(2)(E) but not § 2B3.1(b)(2)(D). He claims that the commentary—specifically note 2— shows a distinction between the application of "dangerous weapon" to each provision. See § 2B3.1 cmt. n.2 (discussing dangerous weapon definition for (b)(2)(E) but not for (b)(2)(D)). Dunigan argues that because comment note 2 defines "dangerous weapon" for only "brandished," the same definition cannot be used for "otherwise used."

Dunigan's reading is flawed, however, because he ignores the previous note in the commentary, which states that a variety of terms—including dangerous weapon—are "defined in the Commentary to § 1B1.1." U.S.S.G. § 2B3.1 cmt. n.1. This note makes no distinction between subsections (b)(2)(E) and (b)(2)(D), and we follow this definition to determine whether Dunigan's BB gun is a dangerous weapon.⁹

The Commentary defines a dangerous weapon as

(i) an instrument capable of inflicting death or serious bodily injury; or (ii) an object that is not an instrument capable of inflicting...