U.S. v. Smith

• Decision Date: 12 June 1990
• Docket Number: 89-50367,Nos. 89-50321,s. 89-50321
• Citation: 905 F.2d 1296
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonis SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Karen Lynn WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1296

905 F.2d 1296

UNITED STATES of America, Plaintiff-Appellee, v. Leonis SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Karen Lynn WILLIAMS, Defendant-Appellant.

Nos. 89-50321, 89-50367.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 11, 1990.

Decided June 12, 1990.

Lynn H. Ball, Federal Defender, San Diego, Cal., for defendant-appellant Smith.

Judy Clarke, Federal Defender, San Diego, for defendant-appellant Williams.

Laura J. Birkmeyer, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before NELSON, NORRIS and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We consider whether the district court properly determined appellants' sentences under the federal Sentencing Guidelines.

I

On August 22, 1988, Karen Williams entered the San Diego Trust and Savings Bank, walked up to a teller window, reached into her jacket pocket, removed a handgun, and said: "This is a robbery. I want everything out of your first and second drawer. Hurry up. I want hundreds and thousands." ¹ The teller asked Williams where the bag for the money was and Williams responded by telling her to "hurry up." The teller took the money out of her cash drawer and threw it on the counter. Williams grabbed $1,162 and exited the bank through a door where co-defendant Marco Banks was waiting as a "lookout." Williams and Banks then entered a vehicle operated by co-defendant Leonis Smith, who drove them all away.

Subsequent investigation led Federal Bureau of Investigation ("FBI") agents to interview Smith on November 21, 1988 at the El Cajon jail, where he was incarcerated on unrelated charges. Smith admitted to being the "get-away driver" in the robbery and identified Banks as the "lookout" and Williams as the person who committed the robbery. Smith related that he observed Williams with a black revolver in a leather pouch as he drove himself, Williams, and Banks to the San Diego Trust and Savings Bank on the day of the robbery. Smith also confirmed that Williams entered the bank, Banks held the door, and Smith drove the vehicle. Smith also admitted that Banks gave him $100 after the robbery.

Banks gave a similar report to FBI agents on November 30, 1988. In addition to describing the incident in much the same manner that Smith had, Banks explained that Williams had acquired the black revolver used in the bank robbery from a person named "T." Banks described the revolver as not appearing to be real and as missing a hammer or a trigger. Banks admitted to having given "T" a piece of rock cocaine and stated that Williams may have given "T" twenty dollars for the weapon.

The FBI also interviewed Williams on November 30, 1988. Williams told agents that the bank robbery was Smith's idea and that he suggested that she be the actual robber and that Banks be the "lookout." Williams related a story similar to Banks' about having acquired the gun from a person named "T." Williams, however, stated that Smith had made Williams pay "T" twenty-five dollars for the gun. Williams also told the agents that she believed that the gun was a pellet pistol which did not have a firing pin. Williams finally admitted that it was she who had entered the bank and demanded the money from the teller.

On December 7, 1988, a federal grand jury returned a two-count indictment, charging Smith and Williams with one count of armed bank robbery and one count of conspiracy to commit the same. See 18 U.S.C. Secs. 2, 371, 2113(a).

On March 20, 1989, Smith entered a guilty plea to the armed bank robbery charge. Prior to sentencing, however, Smith filed objections to the presentence report. The district court overruled these objections at the sentencing hearing on May 26, 1989. The court imposed a sentence of 100 months to run concurrently to the state sentence Smith was then serving, and a five-year period of supervised release. The court also ordered that Smith pay restitution in the amount of $387.33, which represented one-third of the amount of the loss to the victim bank.

At Smith's sentencing hearing, the district court found, "by a preponderance of the evidence," that the gun which Williams had used to rob the bank was a broken .22 caliber revolver. Reporter's Transcript, May 26, 1989, at 8. However, the district court also found that "even if it were a pellet gun," it was still "an instrument capable of inflicting death or serious bodily injury." Id. This was because Williams "brandish[ed]" the weapon, id. at 8-9, and used it in a manner that "was designed to arouse fear in the person she was robbing." Id.

Furthermore, the district court found that Smith had not accepted responsibility for the crime. Smith gave "clearly self-serving statements to the FBI and further, clearly, self-serving statements to the probation officer." Id. at 16. Smith maintained that the bank robbery "was all Banks' and Williams' idea." Id. at 17.

On March 27, 1989, Williams entered a guilty plea to the armed bank robbery charge. Prior to sentencing on June 19, 1989, Williams filed objections to the presentence report. The district court overruled these objections at the sentencing hearing. The court then imposed a sentence of seventy-nine months' imprisonment and a five-year period of supervised release. The court also ordered that Williams pay restitution in the amount of $387.33.

At Williams's sentencing hearing, the district court noted a number of inconsistent statements about the gun. The district court found, however, that the gun was "either a revolver ... or a revolver with no pin ... or a pellet pistol." Reporter's Transcript, June 19, 1989, at 5-6. In any case, the district court found that the gun was "capable of inflicting great bodily injury." Id.

Smith and Williams now appeal from the judgments and sentences of the district court.

II

Appellants contend that the district court erred by adding three points to their base offense levels under Guidelines section 2B3.1 on the ground that Williams brandished or displayed a "firearm" or "dangerous weapon" during the commission of the bank robbery. They contend that Williams used an inoperable pellet gun, not a "firearm" or "dangerous weapon" under the Guidelines. We disagree.

The district court made alternative, but not inconsistent, factual findings. At Smith's sentencing hearing, the district court found by a "preponderance of the evidence" that the gun was a broken .22 caliber revolver. ² Reporter's Transcript, May 26, 1989, at 8. The district court acknowledged, however, that even if the gun was a pellet gun, as had been argued, it was nonetheless capable of inflicting serious bodily injury. At Williams's sentencing hearing, however, the district court determined that the gun "was either a revolver ... or a revolver with no pin [i.e., a firing pin] ... or a pellet pistol." Reporter's Transcript, June 19, 1989, at 5-6.

Given the conflicting testimony, we hold that the district court's factual findings with respect to the nature of the gun were not clearly erroneous. See 18 U.S.C. Sec. 3742. In Williams' post-arrest statement, she said that "T," who had sold the weapon to her, told her that the weapon was a .22 caliber revolver. Yet Banks described the gun as missing a hammer or trigger. At her sentencing hearing, Williams suddenly became "more convinced that it was a pellet gun." Reporter's Transcript, May 26, 1989, at 8-9 (statement of district court). The district court was certainly entitled to give little weight to Williams's characterization of the gun at her own sentencing hearing. See United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989).

In any case, resolution of this issue does not vary according to which of the district court's findings we look to. Whether the gun was, in fact, a revolver, an inoperable revolver, or a pellet pistol makes no difference for the purposes of sentencing here. Guidelines section 2B3.1(b)(2)(C) provides for an increase of three points where "a dangerous weapon (including a firearm) was brandished, displayed, or possessed." United States Sentencing Commission, Guidelines Manual Sec. 2B3.1(b)(2)(C), at 2.24 (1989) [hereinafter "Guidelines Manual "]. A revolver certainly is a "firearm." A "firearm" is "any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive." Guidelines Manual Sec. 1B1.1, Application Note 1(e), at 1.14. Moreover, a pellet gun, while not a "firearm," "is a dangerous weapon." Id.

Furthermore, even an inoperable gun is a "dangerous weapon" when used in the commission of a bank robbery. See United States v. Laughy, 886 F.2d 28, 30 (2d Cir.1989). A "dangerous weapon" is "an instrument capable of inflicting death or serious bodily injury." Guidelines Manual Sec. 1B1.1, Application Note 1(d), at 1.14. The display of even an inoperable or unloaded gun instills fear in the average citizen and creates the possibility of immediate, violent response. Id.; McLaughlin v. United States, 476 U.S. 16, 17-18, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986). An inoperable gun can also cause harm when used as a bludgeon. McLaughlin, 476 U.S. at 18, 106 S.Ct. at 1678. In recognition of these facts, the new Commentary to the Guidelines makes it explicit that "[w]here an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon." Guidelines Manual Sec. 1B1.1, Application Note 1(d), at C.38 (effective Nov. 1, 1989) (emphasis added). ³

In short, the district court did not err by adding three points to both Smith's and Williams's base offense levels for the brandishing, display, or possession of the gun that was a "firearm" or "dangerous weapon."

III

The district court added one point to Williams's base offense level for robbing a "financial institution." Section 2B3.1(b)(1) of the Guidelines...