USA. v. Yelverton

• Decision Date: 10 December 1999
• Docket Number: No. 99-3032,99-3032
• Citation: 197 F.3d 531
• Parties: (D.C. Cir. 1999) United States of America, Appellee v. Willie L. Yelverton, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 531

197 F.3d 531 (D.C. Cir. 1999)

United States of America, Appellee v. Willie L. Yelverton, Appellant

No. 99-3032

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 1999

Decided December 10, 1999

Appeal from the United States District Court for the District of Columbia(No. 95cr00284-02)

Edward C. Sussman, appointed by the court, argued the cause and filed the briefs for appellant.

Barbara A. Grewe, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown, DeMaurice F. Smith and G. Bradley Weinsheimer, Assistant U.S. Attorneys.

Before: Silberman, Sentelle and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge:

Appellant Willie L. Yelverton appeals his conviction by a jury of kidnaping and related charges on four principal grounds.¹ Only two require more than brief discussion. Specifically, Yelverton contends that the district court erred by (1) enhancing his sentence under United States Sentencing Guidelines 2A4.1(b)(3) for "use" of a gun where he did no more than display or brandish the gun during the course of the kidnaping, and (2) denying his motion to dismiss the indictment for violation of his Sixth Amendment right to speedy sentencing. We hold that 2A4.1(b)(3) is properly applied where the gun is employed in a manner designed to coerce a third party so as to complete the kidnaping offense, that is, where a photograph of a person pointing a gun at the head of a kidnaping victim is shown to the victim's parent in tandem with a telephonic threat of further injury to the victim in order to coerce the parent into paying a ransom. Assuming that the Sixth Amendment right to a speedy trial extends to sentencing, see Pollard v. United States, 352 U.S. 354, 361 (1957), we hold that Yelverton fails to meet his burden under Barker v. Wingo, 407 U.S. 514 (1972). Although his sentencing was unnecessarily delayed for thirty-three months despite his repeated requests for prompt sentencing, he has demonstrated neither prosecutorial misconduct nor prejudice, key factors in the determination of whether a defendant has been deprived of his Sixth Amendment right. Concluding further that Yelverton's other challenges to his conviction are meritless, we affirm.

I.

Under the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G."), the punishment for kidnaping, abduction, and unlawful restraint is to be increased by two levels "[i]f a dangerous weapon was used." U.S.S.G. 2A4.1(b)(3) (1995). The Application Notes state that the phrase " '[a] dangerous weapon was used' means that a firearm was discharged, or a 'firearm' or 'dangerous weapon' was 'otherwise used.' " U.S.S.G. 2A4.1 comment, n.2. The U.S.S.G. commentary defines the term "otherwise used" to mean "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." U.S.S.G. 1B1.1 comment, n.1(g).Additionally, "brandished" is defined to mean that the weapon was "pointed or waved about, or displayed in a threatening manner." U.S.S.G. 1B1.1 comment, n.1(c).

The district court enhanced Yelverton's sentence based on evidence that he and his co-defendants informed the kidnaping victim's mother and a detective posing as his father that their son was in custody and would be tortured and killed unless they paid a ransom. During a subsequent telephone call, the mother and the detective were directed to a photograph that showed the son blindfolded and another person's arm holding a gun to his head.

Yelverton contends that the pointing of a gun at the son's head in a photograph seen by his mother, combined with threats to the son's safety directed at his mother in an effort to extract ransom money from her, cannot constitute "use" of a firearm under the Sentencing Guidelines. Specifically, Yelverton contends that the case law establishes that a firearm is "otherwise used" only where the firearm is pointed at a specific victim, and is accompanied by a specific command to the same victim to facilitate the underlying crime. Because the basis for enhancement here was the use of a gun pointed at the son in order to coerce his mother to pay a ransom, Yelverton contends that the district court erred; the gun was merely "brandished" or "displayed." Our review of the district court's application of a Sentencing Guideline is for clear error as to factual findings and with due deference to the district court's application of the guideline to a factual setting.See United States v. Becraft, 117 F.3d 1450, 1451 (D.C. Cir. 1997); United States v. Kim, 23 F.3d 513, 516-17 (D.C. Cir. 1994).

Virtually all of the circuits to address the question have held that where a dangerous weapon is pointed at a person and some further verbal threat or order accompanies the pointing of the weapon to facilitate commission of the underlying crime, an enhancement for the use of the weapon is justified. See, e.g., United States v. Wooden, 169 F.3d 674, 676-77 (11th Cir. 1999); United States v. Gilkey, 118 F.3d 702, 705 (10th Cir. 1997); United States v. Hernandez, 106 F.3d 737, 741 (7th Cir. 1997); United States v. Fuller, 99 F.3d 926, 927 (9th Cir. 1996); United States v. Elkins, 16 F.3d 952, 953-54 (8th Cir. 1994); United States v. Johnson, 931 F.2d 238, 240-41 (3d Cir. 1991); United States v. De La Rosa, 911 F.2d 985, 992 (5th Cir. 1990).² The underlying rationale of the majority view suggests that the key consideration is whether a gun (or other weapon) was pointed at a specific person in an effort to create fear so as to facilitate compliance with a demand, and ultimately to facilitate the commission of the crime. See, e.g., Hernandez, 106 F.3d at 741; Fuller, 99 F.3d at 927; Gordon, 19 F.3d at 1388. This is distinct from a rationale based on the fact that the gun was pointed at the same person in whom fear was sought to be instilled, or even that the person sought to be coerced was the victim of the crime, as opposed to a third party whose complicity the perpetrator sought to ensure. With regard to the latter, for example, courts have found "use" of a weapon where a knife was held to the throat of a third party (a bank patron) to facilitate commission of a bank robbery, see Elkins, 16 F.3d at 953-54, and where a gun was waved by a kidnaper during an argument with her accomplices, and she "warned that anyone going to the police would have to deal with her." De La Rosa, 911 F.2d at 993.

What distinguishes Yelverton's case from the other cases is the fact that the gun and the threats were directed at two different people in two different locations at two different times. While Yelverton conceded at oral argument that 2A4.1(b)(3) would apply where the gun holder did something that increased the inherent threat to those in his presence, he asserts that extension of the enhancement to a person who is not at the same location as the weapon carries the enhancement farther than was intended. We find nothing to suggest that the temporal and spatial elements he identifies are necessary, in contrast to sufficient, in order for 2A4.1(b)(3) to apply. While we have found no case directly on point, inasmuch as most of the cases involve the time and space elements that Yelverton posits, nothing in the language of the Guidelines or the case law suggests that a weapon can only be "otherwise used" in those circumstances. Instead, the rationale of the weight of authority focuses on the use of the gun or other dangerous weapon to instill fear to promote commission of the underlying crime. See, e.g., Hernandez, 106 F.3d at 741; Fuller, 99 F.3d at 927; Gordon, 19 F.3d at 1388. Splitting the "use" of the gun between two persons at different locations, so long as the pointing of the gun at one person is used to instill fear in the other person so as to coerce compliance, and hence facilitate commission of the underlying crime, does not diminish the culpable "use" at issue in the Guidelines.

Yelverton and his accomplices sought to coerce the mother's payment of a ransom by putting her in fear for her kidnaped son's life. That the mother learned of the gun at a different time and in a different place than when and where the gun actually was held to her son's head is irrelevant; the photograph to which the mother was directed, combined with explicit threats to her son's life and safety, and the fact that the son remained in custody at the time his mother's attention was directed to the photograph, make clear that the gun was used to suggest it would be used against her son if she did not pay the ransom. Given the approach of the Guidelines toward the use of dangerous weapons as increasing the coerciveness or dangerousness of criminal activity, cf., e.g., Hernandez, 106 F.3d at 741, it is entirely fitting that "use" of a dangerous weapon include situations where a gun is pointed at a victim in involuntary custody in an effort to frighten a family member to pay a ransom, thereby completing the kidnaping scheme by seeking "ransom or reward." 18 U.S.C. 1201(a). This is particularly so where the threat of potential torture or murder of the kidnaping victim should ransom not be paid is made explicit to the family member, as here by a telephone call to the mother that enhanced the significance of the dangerous situation portrayed in the photograph. Where, then, the deployment of the gun is accompanied by direct and explicit threats to a mother about her son's wellbeing in order to coerce her into paying a ransom, holding 2A4.1(b)(3) inapplicable would serve no purpose other than to undercut the purpose of the enhancement provision. Therefore, we hold that the district court did not err in enhancing Yelverton's sentence under 2A4.1(b)(3).³

II.

Yelverton contends that the thirty-three month delay between the return of the jury's verdict and the...