United States v. Beadion ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30197
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00181-JWS
JOE CHARLES BEAUDION,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted
February 18, 2005—Seattle, Washington
Filed July 19, 2005
Before: Betty Binns Fletcher and Ronald M. Gould,
Circuit Judges, and Samuel P. King,* District Judge.
Opinion by Judge Gould
*The Honorable Samuel P. King, Senior United States District Judge
for the District of Hawaii, sitting by designation.
8475
UNITED STATES v. BEAUDION 8477
COUNSEL
Kevin F. McCoy, Assistant Federal Defender, Anchorage,
Alaska, for the defendant-appellant.
8478 UNITED STATES v. BEAUDION
Mark A. Rosenbaum, Assistant U.S. Attorney, Anchorage,
Alaska, for the plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Joe Charles Beaudion appeals the sentence resulting from
his guilty plea to one count of bank robbery, in violation of
18 U.S.C. § 2113(a), and one count of use of a firearm in rela-
tion to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1). The district court sentenced Beaudion to 33
months for bank robbery and 84 months for “brandishing” the
firearm in the robbery, with the latter period determined in
accordance with the graduated scale of mandatory minimum
sentences in § 924(c)(1)(A)(i)-(iii). Beaudion challenges the
district court’s decision to apply the mandatory minimum sen-
tence for “brandishing” the firearm, rather than for simple
“use” of the firearm, which provides a lower minimum sen-
tence. Beaudion argues that the statutory terms “use” and
“brandish” are ambiguous, and that as a result the statutory
scheme provides two different sentences for the same con-
duct. Beaudion also argues that, under Blakely v. Washington,
124 S. Ct. 2531 (2004), and United States v. Booker, 125
S. Ct. 738 (2005), the factual determination of “brandishing”
for purposes of establishing a statutory minimum sentence
must be admitted by the defendant or proved by a jury beyond
a reasonable doubt. We have jurisdiction pursuant to 18
U.S.C. § 3742, and we affirm.
I
At about 11 a.m. on December 16, 2003, Joe Beaudion
entered the Wells Fargo Bank in Eagle River, Alaska wearing
a ski mask and carrying a sawed-off .22 caliber rifle and a
duffel bag.1 With the rifle in plain view, Beaudion approached
1
These facts are taken from Beaudion’s Presentence Report, which was
adopted expressly by the district court in its findings of fact.
UNITED STATES v. BEAUDION 8479
a bank teller window, saying, “No one has to get hurt. Just
hand over the large bills.” He removed a plastic grocery bag
from his duffel bag, placed the grocery bag on the teller’s
counter, and repeated, “Hand over the large bills.” Beaudion
also set his rifle in open view on the counter, without taking
his hand off it. Moving to the next teller window, Beaudion
again placed his rifle on the counter, took out another bag,
and repeated, “Give me all your money, give me the large
bills.”
Beaudion repeated this routine with the remaining three
tellers. During that time he left the rifle displayed on the sec-
ond teller’s counter and walked back and forth in front of all
the tellers, demanding, “Don’t give me the little stuff, give me
the big stuff, want the big stuff.” The tellers complied by
stuffing money in the grocery bags. When the tellers were fin-
ished, Beaudion collected the bags, retrieved his rifle, and left
the bank. He drove to a nearby bar where he was arrested sev-
eral hours later.
The grand jury returned a two-count indictment charging
Beaudion with bank robbery in violation of 18 U.S.C.
§ 2113(a) and (d) and with using a firearm in connection with
the robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
Count two charged that Beaudion “did knowingly use, carry,
and brandish” a firearm in connection with the robbery
charged in count one. Beaudion pleaded guilty to both counts.
He acknowledged carrying the rifle during the robbery, and
that everyone in the bank saw him with the rifle, but he dis-
puted that his conduct constituted brandishing. The district
court concluded that Beaudion brandished the weapon during
the bank robbery and sentenced him to the statutory seven-
year minimum for brandishing. The district court also sen-
tenced Beaudion to 33 months for the robbery pursuant to the
permissible sentencing range of the United States Sentencing
8480 UNITED STATES v. BEAUDION
Guidelines, for a total of 117 months. Beaudion timely
appealed.2
II
Beaudion argues that there is no distinction between “use”
and “brandish” under 18 U.S.C. § 924(c) because “one cannot
use a firearm without also brandishing it.” In his view, the
statutory scheme metes out two different punishments for the
same conduct. In light of this alleged ambiguity and in accor-
dance with the rule of lenity, see United States v. Jolibois, 294
F.3d 1110, 1113 (9th Cir. 2002),3 Beaudion requests we
vacate the seven-year portion of his sentence assessed pursu-
ant to the “brandishing” mandatory minimum sentence, and
remand for re-sentencing with the mandatory minimum sen-
tence established at five years for the “use” of a firearm.
[1] Our analysis begins with the plain language of § 924(c).
See, e.g., Gwaltney of Smithfield, Inc. v. Chesapeake Bay
Found., Ltd., 484 U.S. 49, 56 (1987) (“It is well settled that
‘the starting point for interpreting a statute is the language of
the statute itself.’ ”); see also Wilderness Soc’y v. U.S. Fish
& Wildlife Service, 353 F.3d 1051, 1060 (9th Cir. 2003) (en
banc). 18 U.S.C. § 924(c)(1) provides a three-tier sentencing
framework, increasing the mandatory minimum sentence in
correlation to the severity of the firearm’s involvement with
the crime:
[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime . . . uses
2
We review de novo a district court’s interpretation of a federal statute.
May Trucking Co. v. Oregon Dep’t of Transp., 388 F.3d 1261, 1265 (9th
Cir. 2004). We also review de novo whether a sentence was imposed ille-
gally. United States v. Hanna, 49 F.3d 572, 576 (9th Cir. 1995).
3
The rule of lenity generally “requires the sentencing court to impose
the lesser of two penalties where there is an actual ambiguity over which
penalty should apply.” Jolibois, 294 F.3d at 1113.
UNITED STATES v. BEAUDION 8481
or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to
the punishment provided for such crime of violence
or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not
less than 5 years;
(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10 years.
“Brandish” is defined in subsection (D)(4):
For purposes of this subsection, the term “brandish”
means, with respect to a firearm, to display all or
part of the firearm, or otherwise make the presence
of the firearm known to another person, in order to
intimidate that person, regardless of whether the fire-
arm is directly visible to that person.
18 U.S.C. § 924(c)(1)(D)(4). To “brandish” a weapon for pur-
poses of § 924(c)(1), then, requires: 1) the open display of the
firearm, or knowledge of the firearm’s presence by another in
some manner, and 2) the purpose of intimidation.
[2] Next we must determine the statutory meaning of “use,”
which is not defined by § 924(c). First, the Supreme Court has
construed “use” in analyzing a previous version of § 924(c),
determining that “use” meant “active employment,” or some-
thing more than simple possession. See Bailey v. United
States, 516 U.S. 137, 149-51 (1995) (holding that defendants
who passively stored firearms for later use could not be con-
sidered “using” a firearm for the purposes of § 924(c)), super-
seded by statute as stated in United States v. Grace, 367 F.3d
29, 35 & n.4 (1st Cir. 2004). The Court in Bailey gave some
8482 UNITED STATES v. BEAUDION
examples: “The active-employment understanding of ‘use’
certainly includes brandishing, displaying, bartering, striking
with, and, most obviously, firing or attempting to fire a fire-
arm. . . . [E]ven an offender’s reference to a firearm in his
possession could satisfy § 924(c)(1).” Id. at 148. Under the
Court’s interpretation in Bailey, “use” would encompass other
actions besides “brandishing,” like the “bartering” of a fire-
arm, which belies Beaudion’s premise that the terms overlap
completely. Id.; see also Smith v. United States, 508 U.S. 223,
240-41 (1993) (holding that the exchange of a firearm for nar-
cotics constitutes “use” of a firearm under § 924(c)(1)).4
[3] Second, when terms are not otherwise defined, we must
interpret them “as taking their ordinary, contemporary, com-
mon meaning.” Perrin v. United States, 444 U.S. 37, 42
(1979). “Use” commonly has numerous meanings which,
unlike the statutory definition of “brandish,” are not limited
by intimidatory purpose nor knowledge of the firearm by
another. 2 THE NEW SHORTER OXFORD ENGLISH DICTIONARY
4
Subsequent congressional amendment of § 924(c)(1) superseded the
Court’s holding in Bailey that possession of a firearm was insufficient to
trigger the five-year mandatory minimum sentence. See 18 U.S.C.
§ 924(c)(1)(A), as amended by Pub. L. No. 105-386, 112 Stat. 3469
(1998) (adding possession of a firearm in furtherance of the crime as
action sufficient to apply the five-year mandatory minimum sentence).
Because “the meaning of statutory language, plain or not, depends on con-
text,” King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991), we must also
consider how the post-Bailey 1998 amendment of § 924(c)(1) altered the
meaning of “use.” Bailey, 516 U.S. at 143 (“ ‘Use’ draws meaning from
its context, and we will look not only to the word itself, but also to the
statute and the sentencing scheme, to determine the meaning Congress
intended.”).
The addition of “possess[ion] [of] a firearm” clearly broadens the realm
of possible conduct that qualifies for the five-year mandatory minimum
sentence. The 1998 amendments also added the definition of “brandish.”
See Pub. L. 105-386, 112 Stat. 3469 (1998). That Congress added a spe-
cific and narrow definition for “brandish” while simultaneously broaden-
ing the type of conduct grouped with “use” further supports the conclusion
that the two terms are distinct.
UNITED STATES v. BEAUDION 8483
3531-32 (1993); cf. Taylor v. United States, 495 U.S. 575, 596
(1990) (instructing that the rule of lenity “cannot dictate an
implausible interpretation of a statute, nor one at odds with
the generally accepted contemporary meaning of a term”).
Many concealed uses of a weapon are prime examples of
“uses” that do not constitute “brandishing.” For example, if
Beaudion had used the butt of his rifle to break the bank’s
padlock, or had snuck up on a guard and used the firearm to
knock him unconscious, he would have used his rifle in the
robbery without brandishing it. That each instance of “bran-
dishing” will necessarily include the “use” of a firearm is
unsurprising because § 924(c) creates a tiered framework,
with both of the more serious tiers, discharge of a firearm or
brandishing a firearm, naturally a subset of the most general
level of use of a firearm. Use can occur without brandishing,
and brandishing can occur without discharge, notwithstanding
that brandishing and discharge are each a type of use. The
terms at issue here, brandishing and use, are not ambiguous
because, as illustrated by the above examples, “use” fre-
quently may occur without an instance of “brandishing,” as
will be the case where a firearm is used without displaying it
to anyone.
III
[4] Beaudion next argues that, after Blakely and Booker, the
Sixth Amendment requires that the determination of whether
he “brandished” the firearm be decided by a jury and not by
the district court.5 See Blakely, 124 S. Ct. at 2537 (“[T]he rel-
evant ‘statutory maximum’ is not the maximum sentence a
5
We review for plain error because Beaudion did not raise his Sixth
Amendment challenge below. United States v. Ameline, 409 F.3d 1073,
1078 (9th Cir. 2005) (en banc); Fed. R. Crim. P. 52(b). Plain error
requires: (1) “error,” (2) that is “plain,” and (3) that “affects substantial
rights.” United States v. Olano, 507 U.S. 725, 732 (1993). An error not
plain to the district court but which becomes plain by the time of appeal
qualifies as plain error. Johnson v. United States, 520 U.S. 461, 468
(1997).
8484 UNITED STATES v. BEAUDION
judge may impose after finding additional facts, but the maxi-
mum he may impose without any additional findings.”). The
Supreme Court addressed the constitutionality of the manda-
tory minimum sentences of § 924(c) in Harris v. United
States, holding that a judicial finding that a defendant bran-
dished a firearm under 18 U.S.C. § 924(c)(1) was constitu-
tionally sufficient to impose a mandatory minimum sentence.
536 U.S. 545, 567-68 (2002) (“That factor [brandishing] need
not be alleged in the indictment, submitted to the jury, or
proved beyond a reasonable doubt.”).
[5] Beaudion argues that Harris is no longer good law in
light of the Court’s subsequent decisions in Blakely and
Booker. That question is not properly before us because the
District Judge in this case did not have to make any factual
findings to conclude that Beaudion brandished the rifle. Count
two of Beaudion’s indictment, to which he pleaded guilty,
charged that he “did knowingly use, carry, and brandish” the
rifle in connection with the bank robbery in violation of
§ 924(c)(1)(A)(ii). Beaudion admitted that he walked into the
bank holding the rifle in plain view and laid it on the counter
as he demanded the tellers give him cash. Beaudion merely
denied that these facts legally amounted to brandishing.6 That
the district court disagreed with his legal argument does not
raise a Sixth Amendment issue.
IV
[6] We hold that “use” and “brandish” have distinct mean-
ings within the statutory framework of 18 U.S.C. § 924(c).
We affirm Beaudion’s sentence under 18 U.S.C. § 924(c) for
brandishing a firearm in the robbery.
[7] Although Beaudion does not raise the issue on appeal,
6
Beaudion objected to the testimony alleging that he pointed the rifle at
the tellers, but this fact is unnecessary to conclude that he brandished the
rifle for purposes of § 924(c)(1)(A)(ii).
UNITED STATES v. BEAUDION 8485
the district court sentenced Beaudion under the premise that
the United States Sentencing Guidelines were mandatory. We
now know the Guidelines are advisory. Booker, 125 S. Ct. at
755-56. Pursuant to Ameline, 409 F.3d 1073, 1084 (9th Cir.
2005) (en banc), we ordered the parties to file supplemental
briefs indicating whether either party wished to pursue a
remand. See also United States v. Moreno-Hernandez, No.
03-30387, 2005 WL 1560269, *9 (9th Cir. July 5, 2005).
Beaudion responded affirmatively. Ameline, 409 F.3d at 1084
(“If an eligible party seeks resentencing under Booker/Fanfan,
we will then engage in the plain error analysis described in
this opinion.”). We conclude from the district court’s com-
ments at Beaudion’s sentencing hearing that there is “a rea-
sonable probability that [Beaudion] would have received a
different sentence had the district judge known that the sen-
tencing guidelines were advisory.” Id. at 1078. Accordingly,
we VACATE Beaudion’s sentence and REMAND for resen-
tencing.
AFFIRMED in part, VACATED and REMANDED in
part.