United States v. Warren, Dwight ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2022
UNITED STATES of AMERICA,
Plaintiff-Appellee,
v.
DWIGHT WARREN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 397-1--William T. Hart, Judge.
ARGUED DECEMBER 11, 2001--DECIDED February 8, 2002
Before BAUER, RIPPLE and ROVNER, Circuit
Judges.
RIPPLE, Circuit Judge. In January 2001,
Dwight "Scoop" Warren entered a guilty
plea to one count of armed bank robbery,
see 18 U.S.C. sec. 2113(a) & (d), and was
sentenced to 120 months of imprisonment,
three years of supervised release, he
received a $100 special assessment, and
was ordered to pay $66,684 in
restitution. On appeal, Mr. Warren
challenges the imposition of a four-point
upward adjustment under U.S.S.G. sec.
2B3.1(b)(2)(D) because he "otherwise
used" a dangerous weapon. For the reasons
set forth in the following opinion, we
affirm the judgment of the district
court.
I
BACKGROUND
Early one morning in November 1998, Mr.
Warren and an accomplice drove to a
branch of St. Paul Federal Bank in
Chicago. When they arrived at the bank,
Mr. Warren exited their van and entered
an enclosed ATM booth. As he waited there
for bank employees to arrive for work,
Mr. Warren placed a mask over his face
and donned a pair of gloves.
A bank teller soon arrived, and Mr.
Warren produced what appeared to be a
silver handgun and ordered her to enter
the bank. (Mr. Warren later stated that
he used a silver cigarette lighter shaped
like a gun rather than an actual firearm,
although no lighter was ever recovered.)
Once inside, Mr. Warren instructed the
teller to turn off the entry alarm. The
teller recalled that Mr. Warren then
grabbed her by the arm, placed the weapon
in her back, ordered her into the vault
room, and said that he didn’t want to
hurt her. After the teller opened the
cash drawer, Mr. Warren restrained her by
taping her wrists and ankles with duct
tape. He then emptied the cash drawer of
over $66,000 and placed the money in a
gym bag. Mr. Warren left the bank through
a rear exit and took off with his
accomplice in the waiting getaway van.
For almost two years this crime remained
unsolved, but a jailhouse informant’s tip
led investigators to Mr. Warren.
Eventually, he pleaded guilty to one
count of armed bank robbery, see 18
U.S.C. sec. 2113(a) & (d).
At sentencing, the district court
calculated Mr. Warren’s base offense
level to be 20, see U.S.S.G. sec.
2B3.1(a), with an additional two points
for taking the property of a financial
institution, see sec. 2B3.1(b)(1),
another two points for physical restraint
of the teller, see sec. 2B3.1(b)(4), and
yet another two points because the loss
was between $50,000 and $250,000, see
sec. 2B3.1(b)(7)(C). The district court
also assessed two points for obstruction
of justice, see U.S.S.G. sec. 3C1.1, but
reduced the adjusted offense level by
three for acceptance of responsibility
under U.S.S.G. sec. 3E1.1. Finally, the
district court added four points under
sec. 2B3.1(b)(2)(D) because Mr. Warren
"otherwise used" a dangerous weapon. Mr.
Warren’s total offense level was
therefore 29, which, combined with his
Category III criminal history, yielded a
guideline range of 108-135 months. The
district court sentenced Mr. Warren to a
term of 120 months of imprisonment.
II
DISCUSSION
Mr. Warren submits that he should not
have received a four-point upward
adjustment under sec. 2B3.1(b)(2)(D) for
otherwise using a dangerous weapon. He
contends that, at most, his conduct
constituted mere "brandishing" of a
dangerous weapon. Specifically, Mr.
Warren highlights that the parties
dispute whether his weapon actually made
contact with the teller’s back; he
describes his conduct as "holding the gun
in the vicinity of the teller’s back."
Appellant’s Br. at 9. We review the
application of sec. 2B3.1(b)(2) for clear
error. See United States v. Seavoy, 995
F.2d 1414, 1421-22 (7th Cir. 1993).
Whether Mr. Warren touched the teller’s
back with the gun or whether he simply
came close to touching her is not an
important distinction for purposes of
determining the applicability of the
enhancement. Although something more than
a general display of a weapon is
necessary to constitute use under
subsection (b)(2)(D), see Seavoy, 995
F.2d at 1422, physical contact between
the weapon and the victim is not a
prerequisite to finding that the
defendant "otherwise used" a dangerous
weapon, see, e.g., United States v.
Wooden, 169 F.3d 674, 676-77 (11th Cir.
1999) (weapon was "otherwise used" when
held one-half inch from victim’s head);
United States v. Johnson, 931 F.2d 238,
240-41 (3d Cir. 1991) (weapon was
"otherwise used" when held "at close
range").
Moreover, Mr. Warren admitted during his
plea colloquy that he intimidated his
victim with the weapon and also admitted
that he threatened her by warning that he
"didn’t want to hurt her." Tr.I at 14-15,
26. We have affirmed "otherwise used"
adjustments when pointing a weapon at a
specific victim created a personalized
threat of harm. See United States v.
Taylor, 135 F.3d 478, 483 (7th Cir.
1998); United States v. Hernandez, 106
F.3d 737, 741 (7th Cir. 1997). The
district court reasonably could have
found that Mr. Warren’s behavior did
constitute such a personalized threat.
Mr. Warren’s argument in his brief that
the factual situation here does "not
constitute an increased level of threat
beyond the level necessary to instill
fear in a reasonable person," Appellant’s
Br. at 9, is conclusory and does not
demonstrate why the district court was
clearly erroneous in assessing the facts
as it did.
In the alternative, Mr. Warren submits
that the district court erred in relying
on the presentence investigation report
("PSR"), which recounts that he "poked"
the teller with his gun. Mr. Warren
maintains that the PSR version of the
crime should be deemed unreliable because
the Government did not produce at
sentencing either the teller or the
investigating FBI agent. Both had given
statements that constitute a large
portion of the PSR. At sentencing, Mr.
Warren made clear that this reliability
argument centered on only one disputed
fact: whether or not he actually touched
the teller with the weapon. His counsel
stated: "Mr. Warren certainly
acknowledges that he intimidated her with
it, but he denies that he touched her
with it." Tr.I at 26. However, it is
irrelevant whether the district court
credited the teller’s story that there
was actual physical contact between the
gun and her back. The district court
could have imposed the "otherwise used"
points solely by relying on Mr. Warren’s
own admission, through counsel, that he
had intimidated the victim with a weapon,
id., in a situation in which such
intimidation clearly constituted a
personalized threat.
Conclusion
The district court did not commit clear
error in determining that the sentence
should include an enhancement because a
dangerous weapon was "otherwise used."
Accordingly, the judgment of the district
court is affirmed.
AFFIRMED