United States v. Stitman, Patrick L. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2277
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PATRICK L. STITMAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. O3 CR 819—Rebecca R. Pallmeyer, Judge.
____________
ARGUED FEBRUARY 9, 2006—DECIDED JANUARY 10, 2007
____________
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 threat-
ened 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.
2 No. 05-2277
§ 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 “danger-
ous 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 con-
cealed 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 (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
No. 05-2277 3
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 com-
mitted 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 en-
4 No. 05-2277
hancement 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 govern-
ment 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 Guide-
lines. 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 com-
plied with the mandatory post-Booker sentencing proce-
dures 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
No. 05-2277 5
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 dan-
gerous 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 enhance-
ment 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 recogniz-
6 No. 05-2277
ing that a box is not a replica of a dangerous weapon, we
concluded that, for the purposes of the Guidelines, “ap-
pearances 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 incon-
sistent with, or a plainly erroneous reading of ’ that Guide-
line.” United States v. Dyer, 464 F.3d 741, 743 (7th Cir.
2006); quoting Stinson v. United States, 508 U.S. 36, 38
(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
defendant wrapped a hand in a towel during a bank
robbery to create the appearance of a gun).
See also U.S.S.G. § 1B1.1, cmt. n.1(D)(ii)(II) (defining the
term “dangerous weapon” for the Guidelines as a whole
and introducing the hand-in-towel example). Stitman’s
behavior, for all practical purposes, was identical to the
No. 05-2277 7
example given in the Application Notes. The difference
between wrapping a hand in a towel and concealing it in
a pocket is inconsequential.
For the purposes of this enhancement, therefore, the
type of object that the perpetrator uses to create the
appearance of a dangerous weapon is irrelevant; what is
important is whether the object creates an objectively
reasonable belief that the perpetrator is armed. See Hart,
226 F.3d at 608-9 (“[T]he appearance of dangerousness
is determined by viewing the object, not in isolation, but
in the context of the offense.”). Other circuits, following
the Application Notes, have explicitly held that a hand
can qualify as such an “object” for purposes of
§ 2B3.1(b)(2)(E). See, e.g., United States v. Dixon, 982 F.2d
116 (3d Cir. 1992) (holding that draping a towel over a
hand to create the appearance of a gun was sufficient for
the three-level enhancement to apply); United States v.
Vincent, 121 F.3d 1451, 1455 (11th Cir. 1997) (“[A] 3 level
enhancement is proper where a robber uses a finger or
some other hard object to cause the victim to believe that
it is a dangerous weapon.”).
Perhaps it is unwise, from the standpoint of marginal
deterrence, to treat concealing a hand in a pocket or
possessing a harmless object just as harshly as actually
possessing a dangerous weapon. There is, however, a
reasonable concern that using something to create the
impression that a perpetrator is carrying a dangerous
weapon runs the risk of inciting just as much violence as
if the robber actually possessed a gun. In Stitman’s case,
for example, a security guard, taking Stitman at his word
and observing the bulge in his pocket, could have drawn
her own weapon in an effort to prevent Stitman from using
his. We cannot say that the Sentencing Commission was
required to disregard this possibility.
It is the district court’s job to determine whether a
particular item objectively created this impression. The
8 No. 05-2277
district court here understood this and found that
“Stitman’s behavior was such as to generate belief on the
part of his observers, reasonable observers,” that he was
in possession of a weapon. On the record the district
court noted that it “[did not] think the mere fact that
Mr. Stitman had his hand in his pocket is enough,” but
that “the circumstances go beyond simply a hand in a
pocket.” As examples of the “specific circumstances” that
it was talking about, it noted that Stitman stipulated in
his plea agreement that he told a bank teller that he had
a gun and “when stating that he had a gun, [he] motioned
to his side where the teller observed a bulge.” The district
court also took into account the fact that the teller who
observed the bulge was not alone; another teller observed
that Stitman had his hand in his pocket as if he had a
weapon. We cannot say that the district court’s conclu-
sion that Stitman’s actions were enough to lead an objec-
tive observer to believe that he was in possession of a
gun was clear error.
III
Next, Stitman argues that the district court erred in
adding two points to his criminal history calculation
pursuant to U.S.S.G. § 4A1.1(b), which provides that two
points are added “for each prior sentence of imprison-
ment of at least sixty days. . ..” The sentence in question
was imposed in April 1996, when Stitman was convicted
in Pennsylvania of driving under the influence with a
suspended or revoked driver’s license. Upon his arrest,
Stitman was held in custody for five months (because the
offense was a violation of his parole), at which point he
pleaded guilty and was sentenced to serve an indetermi-
nate sentence of 30 days to six months’ imprisonment.
Because he had already served five months of his sen-
tence, the PSR indicates that he was immediately paroled
after pleading guilty.
No. 05-2277 9
At the sentencing hearing, his lawyer argued that “[h]ad
he been sentenced to time served under that very same
statute, he would have received one point instead of the
indeterminate sentence, which has him at two points.” See
U.S.S.G. § 4A1.1(c) (providing for a one-point addition, up
to four points, for any sentence that is not counted in
§ 4A1.1(a) or § 4A1.1(b)). Stitman now seems to be argu-
ing that the district court’s conclusion that the phrase
“term of imprisonment” means the maximum sentence
that could have been served under an indeterminate
sentence, as opposed to the time actually served, violates
the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), although he is not clear on this point.
We fail to see how Stitman’s argument makes any
practical difference in this case. The actual time that
Stitman served in prison for this offense was five months,
well beyond the 60 days mentioned in § 4A1.1(b). There
can be no doubt that the two-point addition is appropriate.
Moreover, nothing in Booker changed the way that crimi-
nal history is calculated under the Guidelines. See United
States v. Carpenter, 406 F.3d 915, 917 (7th Cir. 2005)
(“Booker phrased the constitutional rule this way: Any
fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury ver-
dict must be admitted by the defendant or proved to the
jury beyond a reasonable doubt. Criminal history is all
about prior convictions; its ascertainment therefore is an
issue of law excluded by Booker’s own formulation and
governed by Almendarez-Torres v. United States, 523 U.S.
224 (1998).”). We note as well that the sentence of 70
months that the district court chose was within the range
of 63 to 78 months that would have applied if Stitman had
prevailed on his criminal history argument. We have no
facts on this record to indicate how much, if at all, the
district court’s discretion in choosing a reasonable sen-
10 No. 05-2277
tence was affected by the calculation of the range, but it
is possible that the judge might have chosen 70 months
no matter what. See United States v. Mount, 966 F.2d
262 (7th Cir. 1992). We need not resolve that issue here,
since it is so clear that the court did not err in its calcu-
lation of Stitman’s criminal history.
IV
Last, Stitman accuses the district court of failing to
appreciate the advisory nature of the Sentencing Guide-
lines. At sentencing, Stitman presented testimony from
Tracy Reasonover, a case manager at Beatrice Caffrey
Youth Services (a private contractor through the Depart-
ment of Child and Family Services). Reasonover was the
case manager for Stitman’s biological son, Patrick
Stitman, Jr., who was six years old at the time of sentenc-
ing. The case worker testified regarding this child’s sad
history—he was born to a mother who used drugs through-
out her pregnancy, was subsequently abandoned by his
mother, and was a victim of abuse. She also noted that
Patrick, Jr., had a particularly strong bond with Stitman;
she tried a “substitute mentor” for him, but indicated that
it was “not working too well.” She testified that if Stitman
went to jail for more than four and a half years, the child
probably would not be able to see his father again (appar-
ently the grandparents that are caring for him indicate
that they will not take him to see Stitman) and that the
separation from his father will be extremely detrimental
for him.
On appeal, Stitman complains that the sentencing
judge did not indicate on the record whether she felt
obligated to follow the Sentencing Guidelines such “that
she was free to disregard Stitman’s appeal for judicial
clemency on behalf of his son.” Furthermore, Stitman
argues that the fact that the district court “impose[d] a
No. 05-2277 11
sentence at the bottom end of the applicable guideline
range, [ ] is indicative that she felt constrained by the
interpretation of the guidelines.”
In United States v. Rodriguez-Alvarez, 425 F.3d 1041,
1046 (7th Cir. 2005), this court laid out the procedures
that sentencing courts must follow in imposing a sen-
tence post-Booker. First, the sentencing court must
calculate the applicable Guidelines range, even though the
Guidelines are now advisory. See United States v. Alburay,
415 F.3d 782, 786 (“[T]he guidelines must still be con-
sulted and taken into account when sentencing.”). In
addition, the court must give the defendant the “opportu-
nity to draw the judge’s attention to any factor listed in
section 3553(a) that might warrant a sentence different
from the guidelines sentence,” which Stitman attempted
to do by making a rather passionate argument about the
effect his imprisonment would have on his minor child.
United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005).
Additionally, in entering the sentence, the judge must
consider the sentencing factors in § 3553(a), see United
States v. Re, 419 F.3d 582, 583 (7th Cir. 2005), and
“articulate the factors that determined the sentence that
he has decided to impose,” Dean, 414 F.3d at 729.
We are satisfied that the district court followed these
procedures. First, she properly calculated the applicable
Guidelines range. Second, she gave Stitman the opportu-
nity to present his mitigating circumstances. The sen-
tencing transcript reveals that Stitman’s relationship
with his son was discussed extensively at the hearing—not
only by the attorneys and Reasonover, but by Stitman
himself. Additionally, the sentencing judge considered
Stitman’s relationship with his son in calculating his
sentence and imposing a sentence at the low end of the
Guidelines range. In response to Stitman’s argument that
his sentence should be even shorter so that he could spend
time with his son, the judge indicated that if she were “to
12 No. 05-2277
reduce Mr. Stitman’s sentence for some period of time, it
still isn’t the case that [she] could send Mr. Stitman home
to his son.” This statement illustrates that the judge
understood that she had the authority to impose a sen-
tence lower than the minimum Guidelines sentence.
Additionally, the judge observed that “[w]hen [Stitman]
had every opportunity to forge a relationship and be a
father, he was instead . . . into drugs with the mom.”
While sympathetic to Stitman’s relationship with his son,
the district court ultimately determined that “the prob-
lems that [your son] is facing right now are, in part, the
result of your own conduct.”
The sentence that the district court chose was a rea-
sonable one, and we have no doubt that the judge under-
stood her discretion to take the full range of the § 3553
factors into account. Finding no error in either the Guide-
lines calculations that produced Stitman’s advisory range
or the district court’s ultimate decision, we AFFIRM the
judgment.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-10-07