United States v. Richmond Yarmai ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-1225
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UNITED STATES OF AMERICA
v.
RICHMOND YARMAI,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 2:19-cr-00427-001)
District Judge: Honorable Chad F. Kenney
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 17, 2020
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Before: GREENAWAY, JR., SHWARTZ and FUENTES, Circuit Judges.
(Opinion Filed: February 4, 2021)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
Appellant Richmond Yarmai challenges a guidelines enhancement of four levels for
the use of a dangerous weapon during the robbery of a Wells Fargo bank in Philadelphia.
The enhancement increased his guidelines calculation and his sentence. For the reasons
discussed below, we will affirm the District Court’s application of the enhancement.
I. BACKGROUND
On May 30, 2019, Yarmai entered a Wells Fargo bank located in Philadelphia.
Yarmai approached the teller’s window and handed a note to the teller which stated he
would shoot if he did not receive $15,000. Yarmai then pulled out a BB gun, which looked
like a black semi-automatic handgun. Yarmai placed the BB gun on the teller’s counter,
on its side, with the muzzle pointing directly towards the teller. Both of Yarmai’s hands
were laid on the weapon in an attempt to cover it from others while still aiming the weapon
at the teller. The teller handed Yarmai approximately $4,100. Yarmai took the money and
fled the bank.
An investigation led to Yarmai’s arrest and confession. Yarmai was charged by a
grand jury in the Eastern District of Pennsylvania with three counts of bank robbery, in
violation of 18 U.S.C. § 2113(a), and one count of armed bank robbery, in violation of 18
U.S.C. § 2113(d). Yarmai pleaded guilty to all four counts. The Presentence Investigation
Report recommended, inter alia, that the District Court impose a four-level enhancement
to the base offense level for a dangerous weapon “otherwise used,” pursuant to U.S.
2
Sentencing Guidelines Manual § 2B3.1(b)(2)(D) (U.S. Sent’g Comm’n 2018) [hereinafter
“U.S.S.G.”].1
At the sentencing hearing, Yarmai objected to the four-level enhancement.
However, the District Court concluded that Yarmai did not merely “brandish” the weapon,
but instead crossed the line into “otherwise using” the weapon in the course of the robbery.
The District Court applied the applicable four-level sentencing enhancement resulting in a
sentence of 70 months’ imprisonment.
This timely appealed followed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the District
Court’s factual findings relevant to the Sentencing Guidelines for clear error and exercise
plenary review over the District Court’s interpretation of the Sentencing Guidelines.
United States v. Bell, 947 F.3d 49, 54 (3d. Cir. 2020).
III. DISCUSSION
On appeal, Yarmai challenges the enhancement of his sentence for “otherwise
us[ing]” a dangerous weapon under U.S.S.G. § 2B3.1(b)(2)(D). Yarmai argues that during
the relevant robbery, he merely “brandished” the weapon, which justifies only a three-level
1
The armed bank robbery count is at issue on appeal.
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enhancement under § 2B3.1(b)(2)(E), rather than “otherwise used” the weapon, which
warrants a four-level enhancement under § 2B3.1(b)(2)(D).
We begin by examining the relevant guideline, U.S.S.G. § 2B3.1, which provides
the base offense level for robbery and enhancements for specific offense characteristics,
including:
(A) If a firearm was discharged, increase by 7 levels; (B) if a firearm was
otherwise used, increase by 6 levels; (C) if a firearm was brandished or
possessed, increase by 5 levels; (D) if a dangerous weapon was otherwise
used, increase by 4 levels; (E) if a dangerous weapon was brandished or
possessed, increase by 3 levels; or (F) if a threat of death was made, increase
by 2 levels.
§ 2B3.1(b)(2) (emphasis in original).
It is undisputed that Yarmai’s BB gun is a “dangerous weapon” for sentencing
purposes. Thus, we must determine whether the dangerous weapon was “brandished” or
“otherwise used.” The Sentencing Guidelines define the terms as follows:
“Brandished” . . . 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. . .
“Otherwise used” . . . 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.
U.S.S.G. § 1B1.1, cmt. 1(C) & 1(J).
Therefore, the question is whether holding the BB gun on its side with the muzzle
facing the teller amounts to “otherwise using” the weapon. Our precedent suggests it does.
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In United States v. Johnson, we found that the defendant had “otherwise used” a
firearm when the defendant pointed a gun at the victim, threatened to shoot, and demanded
money. 931 F.2d 238, 240–41 (3d Cir. 1991). In an identically named case a few years
later, we agreed with the First Circuit’s holding that:
a person may “brandish” a weapon to “advise” those concerned that he
possesses the general ability to do violence, and that violence is imminently
or immediately available . . . . Altering this general display of weaponry
by [for instance] specifically leveling a cocked firearm at the head or body
of a bank teller or customer, ordering them to move or be quiet according
to one’s direction, is a cessation of “brandishing” and the commencement
of “otherwise used.”
United States v. Johnson, 199 F.3d 123, 127 (3d Cir. 1999) (quoting United States
v. LaFortune, 192 F.3d 157, 161–62 (1st Cir. 1999)) (alteration and ellipsis in
original).
We have affirmed that the “otherwise used” enhancement applied when a defendant
“put a gun to the employee’s head,” id. at 125; “pointed a weapon at the store employee’s
neck, ordered to him to the ground, and then struck him with the weapon,” Bell, 947 F.3d
at 62; and “point[ed] a gun at the head of the assistant manager and order[ed] her to empty
money into a garbage bag,” United States v. Orr, 312 F.3d 141, 145 (3d Cir. 2002).
Here, Yarmai argues that he merely displayed the weapon, and that, due to the height
of the teller’s counter, he was forced to place the weapon on top of the counter in order to
do so. Appellant claims that, under our 1999 Johnson decision, he did not go beyond
generally displaying the weapon by, for example, levelling a cocked firearm at the teller.
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See 199 F.3d at 127. However, the surveillance video leaves no doubt that the Yarmai
held the weapon pointed directly at the teller.2
We have said that “[p]ointing a weapon at a specific person or group of people, in a
manner that is explicitly threatening, is sufficient to make out ‘otherwise use’ of that
weapon.” Johnson, 199 F.3d at 127. The pointing of the muzzle directly at the teller in a
way that is explicitly threatening surely also suffices to constitute “otherwise use” of the
weapon. Additionally, Yarmai did not simply point the weapon, but he also made a specific
threat to shoot in the note that he passed to the teller moments before doing so.
Accordingly, in this instance, there was “a cessation of ‘brandishing’ and the
commencement of ‘otherwise us[ing].’” Id. (quoting LaFortune, 192 F.3d at 161–62).
Therefore, consistent with our precedent, the District Court correctly found that
Yarmai’s actions are precisely the type of conduct which satisfies “otherwise used” the
weapon.
2
Appellant argues that the enhancement should not be dependent merely upon the
angle at which the weapon is displayed. In doing so, the Appellant points to the District
Court’s comment that if the “muzzle was pointed at a different direction . . . [the District
Court might have] come up with a different conclusion.” App. 128; We have said,
however, that the “otherwise used” enhancement applies when a weapon is pointed “in a
manner that is explicitly threatening.” Johnson, 199 F.3d at 127. If the muzzle had been
pointed in another direction, it may not have been explicitly threatening; however, because
the weapon was pointed clearly and directly at the body of the teller, whether intentionally
or not, after an explicit threat, Appellant’s action became threatening and coercive. These
actions crossed the line into “otherwise us[ing]” the weapon. See Johnson, 931 F.2d at 240(affirming enhancement where defendant “did not simply point . . . a firearm, but actually
leveled the gun at the head of the victim at close range and verbalized a threat to discharge
the weapon”).
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IV. CONCLUSION
We will affirm the District Court’s imposition of the guidelines enhancement for
otherwise using a dangerous weapon.
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