United States v. Richard Lee Paine Sr ( 2005 )


Menu:
  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-1341
    ___________
    United States of America,              *
    *
    Plaintiff - Appellee,      *
    * Appeal from the United States
    v.                               * District Court for the Western
    * District of Missouri.
    Richard Lee Paine, Sr.,                *
    *
    Defendant - Appellant.     *
    ___________
    Submitted: October 29, 2004
    Filed: May 18, 2005
    ___________
    Before BYE, BEAM, and GRUENDER, Circuit Judges.
    ___________
    BYE, Circuit Judge.
    In this direct criminal appeal, Richard Lee Paine, Sr., appeals the district
    court's1 finding he "otherwise used" rather than "brandished" a firearm within the
    meaning of United States Sentencing Guidelines § 2B3.1(b)(2)(B) during a June 15,
    2002, bank robbery. He also appeals the district court's finding he "used or attempted
    to use" his sixteen-year-old son within the meaning of U.S.S.G. § 3B1.4 during the
    commission of the robbery. We affirm.
    1
    The Honorable Richard E. Dorr, United States District Judge for the Western
    District of Missouri.
    I
    On June 15, 2002, the O'Bannon Bank in Dallas County, Missouri, was robbed
    by two males wearing baseball caps and sunglasses. The FBI arrested Paine and
    charged him with robbery by force, violence and intimidation, and with committing
    the robbery by assaulting and putting in jeopardy the life of a bank employee by use
    of a handgun, in violation of 18 U.S.C. § 2113(a) and (d). On October 14, 2003, he
    pleaded guilty pursuant to a written plea agreement. On February 3, 2004, a
    sentencing hearing was held wherein he was sentenced to 70 months imprisonment.
    As part of the plea agreement, the parties stipulated to the following facts.
    Around 11:00 a.m. on Saturday, June 15, 2002, Defendant
    and his son (who at the time was sixteen years old) entered
    the O'Bannon Bank, Gem Center Branch, Old Highway 65
    South, Dallas County, Missouri wearing caps and
    sunglasses. The Gem Center Branch is located near Fair
    Grove, Missouri. Defendant and his son approached a
    teller, and Defendant pulled a handgun from his waistband
    and pointed the handgun at the teller. Defendant said
    words to the effect "This is a stick up. Hand me your large
    bills." After a short pause, Defendant said words to the
    effect "I mean it. This is a stick up. Give me your large
    bills." A short time later, Defendant asked the teller if she
    had hit any alarms. The teller removed currency from her
    teller drawer and placed the currency on the teller counter.
    Defendant took the currency and placed the currency in a
    plastic bag. Defendant and his son then left the bank with
    the currency. Defendant took $3,300 in the robbery.
    Defendant and his son were photographed by the bank's
    surveillance cameras.
    At the time of the robbery, O'Bannon Bank's deposits were
    insured by the Federal Deposit Insurance Corporation.
    -2-
    On Monday, September 15, 2003, Defendant, after being
    advised of his Miranda rights, stated in writing he and his
    son "entered the O'bannon [sic] Bank in Fair grove [sic]
    Mo., and I robbed the bank for $3,200. I used an unloaded
    Colt 45 pistol . . . . it [sic] was all my idea and not my sons
    [sic] idea, he had no idea that I was going to rob this bank
    . . . ." Defendant also identified himself in surveillance
    photographs of the robbery.
    Defendant agrees these facts are true except that Defendant
    states he did not remove and point the handgun at the teller
    until the teller paused after Defendant first stated "This is
    a stick up. Hand me your large bills."
    At sentencing, the following testimony was received,
    THE COURT: What are the facts of the – I think I read in
    the presentence investigation report that maybe Mr. Paine
    had said that he didn't point it at the teller till she didn't
    respond to his first command or something and then
    pointed it?
    MS. LEONARD: Yes, Your Honor, if you – actually, in
    the plea agreement there's a stipulation to the facts in
    Paragraph 2 and it's – it was his recollection that he did not
    remove and point the handgun at the teller until she paused
    after he first said, "This is a stick-up. Hand me your large
    bills."
    Her recollection, I believe, was that he pulled the handgun
    from his waistband and pointed the handgun at her and said
    words to the effect, "This is a stick-up," and then when she
    didn't believe him, said, "I mean it. This is a stick-up." So
    those are the facts that were stipulated to in the plea
    agreement.
    -3-
    THE COURT: But the defendant is agreeing that after she
    didn't respond at first, he then removed, I guess from his,
    what, waist –
    DEFENDANT PAINE: Yes.
    THE COURT: – I'm not sure of the picture, but – and
    pointed the handgun at the teller with further direction. Is
    that what I'm reading here in the set of facts?
    MS. LEONARD: Yes. His recollection was he pulled it
    out after she did not believe him that it was a stick-up, yes.
    Additionally, the government offered into evidence four photographs taken by
    surveillance cameras showing Paine and his son during the robbery. The photographs
    show Paine and his son standing at the teller window wearing baseball caps and
    sunglasses. The photographs show him holding the gun and pointing it at the teller
    with his finger on the trigger. Finally, they show he and his son standing only a few
    feet from the teller - across the teller window - during the course of the robbery.
    Paine stipulated the photographs were taken during the course of the robbery and he
    identified himself in the photographs.
    Paine admitted his actions amounted to brandishing a firearm (a five-level
    enhancement) but argued the evidence was insufficient to prove he otherwise used
    the weapon (a six-level enhancement) during the robbery. Based on the evidence, the
    district court concluded,
    THE COURT: Well, I admit, the cases probably leave us
    with not a lot of guidance there, but based on what I
    understand the facts to be, in looking at these pictures, it's
    clearly shown, Mr. Paine, with your hand on the gun and
    looks like finger on the trigger. And if it was pulled out
    and pointed at the teller after she didn't respond the first
    time, that seems like it's a pretty fair inference that that was
    -4-
    meant to convey a threat if something didn't – if she didn't
    respond in the way you wanted to.
    So I find it's otherwise used. I find it's something more
    than just showing that you happened to have a gun in your
    pocket or in your belt when you pulled it out and pointed
    it to [sic] her to get her to give you the money.
    Next, Paine argued his offense level should not be enhanced an additional two
    levels because the evidence was insufficient to show he "used or attempted to use his
    [sixteen-year-old son] to commit the offense or assist in avoiding detection of, or
    apprehension for, the offense." To rebut his arguments, the government focused on
    the photographs, and offered this additional stipulation,
    THE COURT: All right. What's the government say?
    MR. BUNCH: Your Honor, by way of evidence, one other
    fact that I believe the parties are prepared to stipulate to is
    that Mr. Paine informed FBI special agent David Burlew at
    the time he was arrested that the reason he had asked his
    son to go with him is although his son did not know,
    according to Mr. Paine, that he was going to rob the bank,
    that he wasn't brave enough to commit the robbery by
    himself and so he wanted his son to go in order to give him
    the courage to commit the robbery.
    Is that something that Mr. Paine can stipulate to or would
    you like for me to call Agent Burlew?
    MS. LEONARD: I think that that's in the reports, that you
    told the FBI that in the initial interview?
    DEFENDANT PAINE: Yeah.
    Based on this evidence, the district court concluded,
    -5-
    THE COURT: Well, again, I've got these four pictures
    here, and it – I have to do my own evaluation of it. When
    I look at these pictures, the son does not look to me like
    he's surprised that his dad is standing there with a gun. In
    fact, he looks very calm standing at the teller window as if
    he's a participant in this robbery. It's clear that the father
    got his son there by directing him, encouraging him,
    recruiting, soliciting, however you want to label it. The
    son didn't just happen to show up there as a coincidence.
    And it appears clear to me that the defendant did use his
    son. And whether or not that was to commit the offense or
    to avoid apprehension because of numbers, all I can say is
    that judging the pictures and the statement that was made,
    I find that it's proper to enhance by the two levels for using
    a minor to commit the crime.
    On appeal, Paine argues there were insufficient facts to support the district
    court's application of the six-level enhancement for "otherwise using" a firearm
    instead of a five-level enhancement for "brandishing" a firearm. He also argues there
    were insufficient facts for the district court to apply a two-level enhancement for
    using his son in connection with the robbery. Finally, for the first time on appeal
    Paine argues his Sixth Amendment rights were violated because the factual bases for
    the enhancements were not submitted to a jury.
    II
    We review the district court's application of the Sentencing Guidelines de
    novo, United States v. Smotherman, 
    285 F.3d 1115
    , 1116 (8th Cir. 2002), and its
    findings of fact for clear error, United States v. Hart, 
    324 F.3d 575
    , 579 (8th Cir.
    2003) (citation omitted). We need not, however, review the district court's
    independent findings of fact if the factual predicate necessary to justify a sentencing
    enhancement is derived from a defendant's factual admissions. In other words, if the
    facts admitted by Paine are sufficient to support the enhancement, any additional fact
    -6-
    findings by the district court are superfluous. United States v. Gomez, 
    271 F.3d 779
    ,
    781 (8th Cir. 2001). Similarly, his Sixth Amendment claim fails if he admitted the
    facts necessary to support the sentence imposed. United States v. Booker, 543 U.S.
    — , 
    125 S. Ct. 738
    , 756 (2005) ("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 verdict must be admitted by the defendant or
    proved to a jury beyond a reasonable doubt.") (emphasis supplied). Thus, we must
    determine whether his admissions provide an adequate factual basis to support the
    enhancements and to overcome his Sixth Amendment claim.
    A.     U.S.S.G. § 2B3.1(b)(2)(B) - "Otherwise Used" or "Brandished"
    Section 2B3.1(b)(2) of the United States Sentencing Guidelines provides,
    (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.
    Application Note 1 to § 2B3.1 states "otherwise used" and "brandished" are
    defined in the Commentary to U.S.S.G. § 1B1.1. Application Note 1 to § 1B1.1
    provides,
    (C) "Brandished" with reference to a dangerous weapon
    (including a firearm) 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
    -7-
    the dangerous weapon does not have to be directly visible,
    the weapon must be present.2
    (I) "Otherwise used" with reference to a dangerous weapon
    (including a firearm) 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.
    In United States v. Hoelzer, 
    183 F.3d 880
    , 883 (8th Cir. 1999), this court
    upheld an "otherwise used" enhancement where the defendant used a gun to strike the
    victim in the head. In United States v. Elkins, 
    16 F.3d 952
    , 953-54 (8th Cir. 1994),
    we upheld an "otherwise used" enhancement where the defendant held a knife against
    the throat of a victim. We have not, however, had an opportunity to apply
    § 2B3.1(b)(2) in a factual scenario similar to this case since the November 1, 2000,
    amendment to Application Note 1(c) to § 1B1.1.
    Other circuits, however, have directly faced this issue. In United States v.
    Cover, 
    199 F.3d 1270
    , 1278-79 (11th Cir. 2000), the court stated "[w]e agree with
    this definition and, like the majority of courts that have considered the question, find
    that the use of a firearm to make an explicit or implicit threat against a specific person
    constitutes 'otherwise use' of the firearm." Similarly, in United States v. Orr, 
    312 F.3d 141
    , 144-45 (3d Cir. 2002), the court addressed the difference between
    "brandishing" and "otherwise using" and concluded "pointing a gun at the head of the
    assistant manager and ordering her to empty money into a garbage bag was a 'specific
    threat' directed at her and was precisely the type of conduct which satisfies the
    'otherwise used' requirement." In United States v. Warren, 
    279 F.3d 561
    , 563 (7th
    2
    Prior to November 1, 2000, Application Note 1(c) to § 1B1.1 stated
    "'[b]randished' with reference to a dangerous weapon (including a firearm) means that
    the weapon was pointed or waved about, or displayed in a threatening manner."
    (emphasis supplied).
    -8-
    Cir. 2002), the court indicated "[w]e have affirmed 'otherwise used' adjustments when
    pointing a weapon at a specific victim created a personalized threat of harm." See
    also United States v. LaFortune, 
    192 F.3d 157
    , 161 (1st Cir. 1999) ("[I]t was the
    specific rather than the general pointing of the gun that elevated its use from mere
    'brandishment' to 'otherwise used'"); United States v. Gilkey, 
    118 F.3d 702
    , 706 (10th
    Cir. 1997) (emphasizing the specific over the general threats to the victim); United
    States v. De La Rosa, 
    911 F.2d 985
    , 993 (5th Cir. 1990) (brandishing plus specific
    threats constitute otherwise using a weapon).
    Notwithstanding these cases, Paine asks us to adopt the position advocated by
    the Second Circuit in United States v. Matthews, 
    20 F.3d 538
    , 554 (2d Cir. 1994),
    where the court held brandishing and pointing firearms at a victim while uttering
    explicit threats did not trigger the "otherwise used" enhancement. In light of the
    November 1, 2000, amendment to the application note, we conclude the precedential
    value of United States v. Matthews is greatly diminished. It is apparent the
    amendment was intended to include at least some instances involving pointing a
    weapon within the definition of "otherwise used."
    Here, Paine was standing only two or three feet from the teller when he drew
    the weapon and pointed it directly at her. Paine admits he drew the weapon because
    the teller did not immediately respond when he told her: "This is a stick up. Hand me
    your large bills." After drawing the weapon, Paine, with his finger on the trigger of
    the gun, emphasized the threat saying: "I mean it." In doing so, he did more than
    display the gun. He employed the gun to convey a threat directed at this specific
    teller which was intended to intimidate her into complying with his demands.
    We conclude Paine's admissions satisfy the factual predicate necessary to
    establish the gun was "otherwise used" in committing the robbery.
    -9-
    B.     U.S.S.G. § 3B1.4 - Paine's Use of His Son
    Section 3B1.4 states: "If the defendant used or attempted to use a person less
    than eighteen years of age to commit the offense or assist in avoiding detection of, or
    apprehension for, the offense, increase by 2 levels." Application Note 1 states: "'Used
    or attempted to use' includes directing, commanding, encouraging, intimidating,
    counseling, training, procuring, recruiting, or soliciting." § 3B1.4, cmt. n.1.
    Both Application Note 1 and cases applying § 3B1.4 make clear the "used or
    attempted to use" language requires the defendant to affirmatively involve or
    incorporate a minor into the commission of the offense. "Pursuant to the sentencing
    guidelines, the two-level § 3B1.4 increase is only applicable if a defendant directs,
    trains, or in some way affirmatively engages the minor participant in the crime of
    conviction." United States v. Suitor, 
    253 F.3d 1206
    , 1210 (10th Cir. 2001); United
    States v. Jimenez, 
    300 F.2d 1166
    , 1169 (9th Cir. 2002) ("The evidence must show
    that 'the defendant acted affirmatively to involve the minor' in the crime") (quoting
    United States v. Parker, 
    241 F.3d 1114
    , 1120 (8th Cir. 2001)); United States v.
    Castro-Hernandez, 
    258 F.3d 1057
    , 1060 (9th Cir. 2001) ("It is sufficient that the
    defendant took affirmative steps to involve the minor in a manner that furthered or
    was intended to further the commission of the offense."); United States v. Rivera, 
    248 F.3d 677
    , 682 (7th Cir. 2001) (same); United States v. Butler, 
    207 F.3d 839
    , 847 (6th
    Cir. 2000) (same).
    Under § 3B1.4, "used or attempted to use" does not, however, require active
    involvement on behalf of the minor. 
    Castro-Hernandez, 258 F.3d at 1060
    (citing
    United States v. Warner, 
    204 F.3d 799
    , 801 n.2 (8th Cir. 2000) ("We agree that a
    minor's own participation in a federal crime is not a prerequisite to the application of
    § 3B1.4.")); see also 
    Warner, 204 F.3d at 801
    n.2 (finding no plain error in district
    court's application of § 3B1.4 where defendant "acted irresponsibly in bringing his
    young child on this nefarious junket. His offer to leave her in what might well have
    -10-
    been a dangerous situation to facilitate his criminal activity warrants a sentence
    enhancement.").
    Here, Paine admitted he asked his son to accompany him on the robbery to
    provide moral support. He stated without his son present he would not have been
    able to follow through with his plan. Paine, however, contends the enhancement was
    unjustified because his son had nothing to do with nor did he know about the
    robbery.3
    As noted above, Paine's son's knowledge of the robbery plan and his
    participation in the plan are not germane to our inquiry. "[T]he relevant inquiry is
    whether [Paine] took affirmative acts to involve [his son] in the commission of the
    offense. 
    Rivera, 248 F.3d at 682
    (citation omitted). It is, therefore, enough he
    admitted to asking his son to accompany him on the robbery because he would not
    otherwise have had the courage to commit the crime. In concluding the facts
    admitted by him are sufficient to support the district court's application of § 3B1.4,
    we are mindful "[t]he unambiguous legislative design of section 3B1.4 is to protect
    minors as a class from being 'solicited, procured, recruited, counseled, encouraged,
    trained, directed, commanded, intimidated, or otherwise used' to commit crime."
    United States v. McClain, 
    252 F.3d 1279
    , 1286 (11th Cir. 2001) (citing Violent Crime
    Control and Law Enforcement Act of 1994 § 140008(a); § 3B1.4, cmt. n.1 (2000)).
    As in Warner, we are convinced, by Paine's own admissions, his irresponsible act of
    3
    Both Paine and his son donned baseball caps and sunglasses before entering
    the bank in an apparent attempt to conceal their identities. The photographs show
    Paine's son standing next to him as the pair huddled in front of the teller window.
    They also show Paine's son was in a position to see his father draw the weapon and
    hear him threaten the teller. Thus, we find Paine's claim his son was unaware of the
    robbery plan dubious. Nevertheless, we need not rely on any such inferences, no
    matter how reasonable, to conclude the district court's application of the sentencing
    enhancement was justified.
    -11-
    involving his son in a potentially life-threatening crime warrants this sentencing
    
    enhancement. 204 F.3d at 801
    .
    Finally, we consider whether Paine's sentence, imposed under a mandatory
    sentencing scheme, is erroneous. See United States v. Pirani, No. 03-2871, slip op.
    at 6 (8th Cir. April 29, 2005) (en banc) (citing United States v. Antonakopoulos, 
    399 F.3d 68
    , 76 (1st Cir. 2005) ("The argument that a Booker error occurred is preserved
    if the defendant below argued Apprendi or Blakely error or that the Guidelines were
    unconstitutional.")). Here, Paine first raised Blakely in proceedings before this court.
    Thus, we review his sentence for plain error. Pirani, slip op. at 6.
    Plain error review is governed by the four-part test of United States v. Olano,
    
    507 U.S. 725
    , 732-36 (1993):
    before an appellate court can correct an error not raised at trial, there
    must be (1) error, (2) that is plain, and (3) that affects substantial rights.
    If all three conditions are met, an appellate court may then exercise its
    discretion to notice a forfeited error, but only if (4) the error seriously
    affects the fairness, integrity, or public reputation of judicial
    proceedings.
    Pirani, slip op. at 7 (quoting Johnson v. United States, 
    520 U.S. 461
    , 466-67 (1997)).
    Paine has the burden of proving plain error. 
    Olano, 507 U.S. at 734-35
    .
    "Appellate review under the plain-error doctrine, of course, is circumscribed and we
    exercise our power under Rule 52(b) sparingly." Jones v. United States, 
    527 U.S. 373
    , 389 (1999).
    The first two Olano factors are satisfied here - the district court erred by
    applying the guidelines as mandatory and the error is plain. Pirani, slip op. at 8.
    "[W]here the law at the time of trial was settled and clearly contrary to the law at the
    -12-
    time of appeal – it is enough that an error be 'plain' at the time of appellate
    consideration." 
    Johnson, 520 U.S. at 468
    . As for the third factor, Paine must show
    a "reasonable probability that he would have received a more favorable sentence with
    the Booker error eliminated by making the Guidelines advisory." Pirani, slip op. at
    10.
    We have reviewed the record on appeal and conclude there is no reasonable
    probability Paine can demonstrate the district court would have imposed a more
    favorable sentence but for the Booker error. The district court sentenced him at the
    low end of the applicable guideline range but standing alone that fact is "insufficient
    . . . to demonstrate a reasonable probability that the court would have imposed a
    lesser sentence absent the Booker error." Pirani, slip op. at 12. Thus, we find no
    plain error.
    III
    The order and judgment of the district court are affirmed.
    ______________________________
    -13-