U.S. v. Stitman

• Citation: 472 F.3d 983
• Decision Date: 10 January 2007
• Docket Number: No. 05-2277.,05-2277.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick L. STITMAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

472 F.3d 983

UNITED STATES of America, Plaintiff-Appellee, v. Patrick L. STITMAN, Defendant-Appellant.

No. 05-2277.

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2006.

Decided January 10, 2007.

Daniel Collins (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Gerardo S. Gutierrez (argued), Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.

WOOD, Circuit Judge.

In the summer of 2003, Patrick Stitman went on a bank robbery spree, hitting three banks on three separate occasions. Each time, he threatened to shoot or kill the bank teller, even though he was actually unarmed. During one robbery, Stitman told the bank teller that he had a gun and pointed to his hip, where the teller observed a "bulge." Ultimately Stitman was caught and pleaded guilty to three counts of bank robbery in violation of 18 U.S.C. § 2113(a).

At sentencing, the district court applied a three-level sentencing enhancement based on U.S.S.G. § 2B3.1(b)(2)(E), after it found that Stitman created the appearance that he "brandished or possessed" a dangerous weapon. In reaching that conclusion, the court relied on U.S.S.G. § 2B3.1, cmt. n. 2, which in turn is informed by U.S.S.G. § 1B1.1, cmt. n. 1(D) (defining the term "dangerous weapon"). Additionally, the district court added two points to Stitman's criminal history calculation because of a prior conviction. Stitman was sentenced to 70 months in prison.

On appeal, Stitman argues that the district court clearly erred when it imposed the enhancement under § 2B3.1(b)(2)(E), because, rather than "brandishing or possessing" a dangerous weapon, he had merely concealed his hand in his pocket during the course of the bank robbery. Stitman also claims that the manner in which the district court calculated his sentence offends the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because we conclude that the district court did not err in sentencing Stitman, we affirm the district court's judgment.

I

Stitman's robberies began on July 23, 2003, at a TCF bank in Chicago. During the course of the robbery, he told the bank teller "I have a gun, give me $3,000, I'm going to count to ten." The teller gave him approximately $1,810. About a week later, on July 31, 2003, Stitman decided to rob another Chicago-area TCF bank. Again, he approached the bank teller and said something to the effect of "Give me all your money, I have a gun." This time, however, when Stitman told the teller that he had a gun, he waved at his side, where the teller observed a bulge by his hip. Another bank teller overheard Stitman say that he was armed and noticed that Stitman had one of his hands in his pocket as if he was concealing a weapon. After the teller gave Stitman some money, Stitman replied, "I want more. No funny money. You have 10 seconds or you are going to die." At that point, Stitman began counting to ten. The frightened teller complied with Stitman's request, giving him more of the bank's money; in total, Stitman recovered $4,349. (There is no question on appeal that both of these banks were insured by the Federal Deposit Insurance Corporation (FDIC) at the time Stitman committed these crimes).

Apparently satisfied with his success up until this point, Stitman decided to try his luck again by robbing the same TCF bank that he had robbed on July 31. On August 21, 2003, Stitman entered that bank, approached the teller, and told the teller "Give me all your hundreds, I have a gun." The teller gave him approximately $4,000. During the course of this robbery, however, a security guard overheard Stitman demanding money from the bank teller and recognized him as the July 31 bank robber. The security guard apprehended Stitman and recovered $3,990.

A grand jury indicted Stitman on three counts of bank robbery in violation of 18 U.S.C. § 2113(a); Stitman pleaded guilty to each count. Prior to sentencing, the government argued that, among other enhancements Stitman's offense level should be increased by three pursuant to U.S.S.G. § 2B3.1(b)(2)(E) because he created the appearance of brandishing a dangerous weapon. The government was referring to the July 31 robbery, during which Stitman told the bank teller that he had a gun and motioned to his hip where the teller observed a bulge in his pants pocket. Stitman countered with the argument that the three-level enhancement was not appropriate because he merely had his hand in his pants, as opposed to some object that he used to create the appearance of a gun. He argued that if any sentencing enhancement were to apply, he should receive only a two-level enhancement for making a threat of death. See U.S.S.G. § 2B3.1(b)(2)(F). Stitman also asked the district court to take into account his relationship with his six-year-old son in imposing a sentence.

Ultimately, the district court agreed with the government that the three-point enhancement was applicable. On the criminal history side, the court added two points to Stitman's score based upon a prior conviction. With these adjustments, Stitman's guidelines range was 70-87 months. The court imposed a sentence of 70 months in prison.

II

In an appeal from a sentence, we review both findings of fact and applications of the Sentencing Guidelines for clear error. See, e.g., United States v. Hart, 226 F.3d 602, 604 (7th Cir.2000). We review de novo questions of law involving the interpretation of a provision of the Guidelines. Id. The latter standard also applies to Stitman's claim that the district court failed to appreciate the advisory nature of the Guidelines. See United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir.2005) ("Because defendant's argument is based on procedural errors and not on the application of the factors, it is not appropriate to consider defendant's arguments under the `reasonableness' framework. Instead, this Court should review the question of whether the district court complied with the mandatory post-Booker sentencing procedures under a non-deferential standard of review.") (internal citations omitted).

Stitman argues that the district court clearly erred in applying a three-level enhancement to his sentence under § 2B3.1(b)(2)(E) of the Sentencing Guidelines. Section 2B3.1(b)(2)(E) provides for this enhancement "if a dangerous weapon was brandished, or possessed" in connection with a robbery offense. The application notes for the 2003 Sentencing Guidelines explicitly indicate that an object will be considered a "dangerous weapon" for purposes of subsection (b)(2)(E) if "the object closely resembles an instrument capable of inflicting death or serious bodily injury" or "the defendant used the object in a manner that created the impression that the object was an instrument capable of inflicting death or serious bodily injury." U.S.S.G. § 2B3.1(b)(2)(E), cmt. n. 2. We have stressed that courts are to apply an "objective standard in determining whether a particular object appeared to be a dangerous weapon within the meaning of U.S.S.G. § 2B3.1(b)(2)(E)." Hart, 226 F.3d at 607 (7th Cir.2000). The test is whether "a reasonable person, under the circumstances of the robbery, would have regarded the object that the defendant brandished, displayed or possessed as a dangerous weapon...." Id.

Stitman concedes that he told the teller that he had a gun, and that the teller may have observed a bulge in his pocket, but he argues that he merely had his hand in his pocket and was not in possession of any type of object that a reasonable person could have perceived as a dangerous weapon. In effect, he is saying that as a matter of law his hand cannot be the type of object contemplated by the guidelines. In support of his argument, he relies heavily on Hart. In that case, during several different robberies, the defendant placed a lunch or shoe box on the bank counter and informed the teller that he had a bomb in the box. Id. at 603-04. In appealing the district court's application of the three-level sentencing enhancement for brandishing a weapon, Hart argued that the "dangerous weapon requirement" of U.S.S.G. § 2B3.1(b)(2)(E) could not be satisfied without the presence of either an actual weapon or the replica of an actual weapon (such as a toy gun or a plastic knife). Id. at 604. While recognizing that a box is not a replica of a dangerous weapon, we concluded that, for the purposes of the Guidelines, "appearances count as well as reality." Id. at 605 (quoting United States v. Koonce, 991 F.2d 693, 697 (11th Cir.1993)). We wrote that "the risk of a violent response that can flow from brandishing, displaying or possessing a dangerous weapon while perpetrating a robbery is just as real whether the object is an actual weapon or merely an object used by the defendant to create the illusion of a dangerous weapon." Id.

The most serious problem with Stitman's argument is that it disregards Application Note 2 to § 2B3.1 and Application Note 1(D) to § 1B1.1. It is well established that "[a]n application note is binding authority `unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of that Guideline." United States v. Dyer, 464 F.3d 741, 743 (7th Cir.2006); quoting Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); see also United States v. Mitchell, 353 F.3d 552, 556 (7th Cir.2003); United States v. LeBlanc, 45 F.3d 192, 194-95 (7th Cir. 1995). Application Note 2 to § 2B3.1 instructs that:

[A]n object shall be considered to be a dangerous weapon for purposes of subsection (b)(2)(E) if (A) the object closely resembles an instrument capable of inflicting death or serious bodily injury; or (B) the defendant used the object in a manner that created the impression that the object was an instrument capable of inflicting death or serious bodily injury (e.g., a...