United States v. LaFortune

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 99-1059



                          UNITED STATES,



                            Appellee,



                                v.



                      DAVID HOLIS LAFORTUNE,

                          A/K/A LUCKIE,



                      Defendant, Appellant.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. Morton A. Brody, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



                   Hill, Senior Circuit Judge,



                    and Boudin, Circuit Judge.



                      _____________________



    Joseph S. Berman, by appointment of the Court, with whom

Berman & Dowell was on brief, for appellant.

    Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, was on brief, for

appellee.





                       ____________________



                       September 15, 1999

                       ____________________         HILL, Senior Circuit Judge.  Appellant David Hollis

"Luckie" LaFortune is an admitted bank robber.  In calculating

LaFortune's sentence, the district court added a six-level weapons

enhancement, finding that LaFortune had "otherwise used," U.S.S.G.

§ 2B3.1(b)(2)(B), rather than "brandished, displayed, or

possessed," U.S.S.G. § 2B3.1(b)(2)(C), a firearm during the robbery

which would have warranted only a five-level enhancement.  We

affirm.

                                I.

         On February 4, 1998, LaFortune and co-defendant Michael

Kenneth Morganstern stole a teal-colored minivan parked outside a

convenience store.  The next morning, LaFortune and Morganstern

drove to the residence of a woman and her eleven-year-old son.

They asked the woman to stitch closed the mouth openings of two

black ski masks.  Obtaining needle and thread from a neighbor, the

woman complied.  Morganstern then told the boy that "he was going

to do something really stupid, [so] if he got shot, don't cry; he

was going to rob a bank, [but] don't tell [anybody]."  The two men

then left the woman's house.

         That same morning, February 5, two young white males

entered a branch of the Bangor Savings Bank wearing black ski

masks, ski-type gloves and dark parkas.  According to a teller, one

robber announced the robbery, carried a silver-colored revolver

with a thin barrel, and stayed on the customer side of the counter.

The other robber climbed or jumped over the teller counter, and

began removing money from the cash drawers, filling a brown duffle

bag with bank currency stacks.

         Pointing the silver gun at tellers and customers, the

armed robber then shoved or pushed one customer to the floor,

telling her to "get down" and "don't talk."  The customer saw the

silver flash of (what she perceived as) a gun in his hand.  A bank

employee heard the armed robber yell for everyone to get down and

"saw him wave the small handgun at people in the bank."  Another

bank employee reported that the armed robber pointed the handgun

directly at her and told her to get down.  After the armed robber

yelled at the robber behind the teller counter to hurry up, the two

ran from the bank, removing their ski masks as they fled.  Running

down the street to the teal-colored minivan, they sped away, but

not before a citizen recorded its Maine license plate number.

         LaFortune and Morganstern returned to the woman's house

later that same morning, February 5.  This time they were carrying

a plain brown duffle bag.  The bag contained money, ski-type

gloves, the ski masks and the mini-revolver.  The two men asked the

woman's child to dispose of the ski masks and gloves, and also

their sneakers, pants and shirts.  The child obeyed by placing the

items in a dumpster outside.  They also asked the boy to get rid of

the keys to the teal-colored minivan.  He threw them into a nearby

yard.  At their direction, the child also bought the men two pair

of new sneakers at the Bangor Mall.

         As the boy watched, Morganstern spread the cash out on a

sibling's bed in denominated piles and split the proceeds equally.

The boy learned that LaFortune was the armed robber that had "held

the gun, cocked, at the head of a female at the bank."  It was

Morganstern who had jumped over the teller counter and gathered

cash.

         The two men left the woman's house, taking the revolver

and duffle bag with them.  Within the next five days, LaFortune and

Morganstern would both be arrested and a two-count indictment

returned against them by a federal grand jury.

                               II.

         LaFortune pleaded guilty to bank robbery by force in

violation of 18 U.S.C. §§ 2113(a) and (d), and conspiracy to commit

armed bank robbery in violation of 18 U.S.C. § 371.  On the record,

at sentencing, the parties stipulated as to the factual statement

set forth in the PSR.

         At the sentencing hearing, the district court heard

testimony from the bank's human resources director as to the trauma

inflicted upon bank employees, customers and their families by

LaFortune's conduct.  According to the bank representative,

LaFortune's use of the silver revolver "gave the victims no reason

to expect that they would emerge from this robbery without becoming

another statistic on the nightly news."

         The PSR recommended a six-level weapons enhancement of

LaFortune's sentence, U.S.S.G. § 2B3.1(b)(2), warranted as he had

"otherwise used" a firearm during the bank robbery, rather than a

five-level weapons enhancement, U.S.S.G. § 2B3.1(b)(3), for

"brandishing" it.  The district court agreed with the

recommendation, finding itself particularly struck by the statement

of the one victim that "all she remembered of the robbery was

staring down the barrel of a gun and wondering when she would be

shot."  Based upon a total offense level of twenty-eight, and a

Criminal History Category I, with a Sentencing Guideline range of

78 to 97 months' imprisonment, the district court sentenced

LaFortune to the maximum 97 months.  He now appeals.

                               III.

                                A.

         LaFortune's appeal presents an issue of first impression

to this circuit.  Here we must draw the line as to whether a weapon

was "otherwise used" or "brandished, displayed, or possessed"

during a robbery in the context of the Sentencing Guidelines.  We

review de novo the interpretation by the district court of the

language and meaning of words used in the Sentencing Guidelines.

See United States v. Núñez-Rodríguez, 92 F.3d 14, 19 (1st Cir.

1996).  Its findings of fact are reviewable for clear error.  Id.

                                B.

         The crime of robbery garners a base offense of 20 under

U.S.S.G. § 2B3.1(a).  Subsection (b)(2) of U.S.S.G. § 2B3.1

outlines varying enhancements to the base offense of 20 depending

on the type of weapon used in the robbery and the degree of its

involvement:

                  (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, displayed, 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, displayed, or

         possessed, increase by 3 levels; or (F) if a

         threat of death was made, increase by 2

         levels.



U.S.S.G. §§ 2B3.1(b)(2)(A)-(F).

         The terms "otherwise used" and "brandished" are defined

in the Commentary to U.S.S.G. § 1B1.1.  See U.S.S.G. § 2B3.1,

comment.  (n.1).  The application notes provide that

"'[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."  U.S.S.G. § 1B1.1, comment.

(n.1(c)).  They further explain that "'[o]therwise 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."  U.S.S.G. § 1B1.1, comment. (n.1(g)).

                                C.

         While the circuits are split on this issue, they are not

evenly divided.  Our decision falls in line with the weight of the

majority.

         In United States v. Wooden, 169 F.3d 674 (11th Cir.

1999), the Eleventh Circuit held that, during the course of a

robbery at a Miami automatic teller machine, when the defendant

pointed a .9 millimeter semi-automatic handgun approximately one-

half inch from the victim's forehead, this constituted "otherwise

used" and not "brandishing."  The Eleventh Circuit held that

although the case did not involve an explicit threat, Wooden's

conduct was equally coercive and threatening.  Id. at 676.

         In United States v. Gilkey, 118 F.3d 702 (10th Cir.

1997), the defendant robbed a diner at gunpoint.  The Tenth Circuit

held that, although the district court's findings did not

specifically reveal whether there was any physical contact between

the gun and the victims, or that the defendant explicitly

verbalized a threat to kill, his use of the gun to directly

threaten the victims and to force them to move according to his

directions was more culpable than brandishing.  Id. at 705.  They

found that it was the specific rather than the general pointing of

the gun that elevated its use from mere "brandishment" to

"otherwise used."  Id. at 706; see also United States v. Roberts,

898 F.2d 1465 (10th Cir. 1990) (where "otherwise used" obtained

when the defendant walked up behind the victim, put his arm around

her, held a knife next to her face and neck, and demanded money);

United States v. Elkins, 16 F.3d 952 (8th Cir. 1994) (where

"otherwise used" obtained when defendant, after receiving money

from a bank teller, forced a bank customer at knife-point out of

the bank and into the parking lot where he demanded keys to the

customer's car).

         By contrast, the Second Circuit in United States v.

Matthews, 20 F.3d 538 (2d Cir. 1994), held that bank robbers who

ordered employees and customers to lie on the floor, pointed their

weapons at these victims, and threatened to kill anyone who

disobeyed ("Get down or I will blow your head off."; "Move and you

are dead."; "If you don't keep your head down, you are going to get

shot."), id. at 554, were merely brandishing their firearms.  We

decline to follow this rationale.

                                D.

         In this case, LaFortune contends that his waving and

pointing of the silver revolver at bank tellers and customers,

together with his instruction that persons in the bank "get down,"

without an explicit threat to any person, constitute brandishing,

and that therefore the district court holding must be reversed.

Matthews, 20 F.3d at 553; United States v. González, 40 F.3d 735,

740 (5th Cir. 1994), cert. denied, 115 S. Ct. 1716 (1995).  He

claims that to hold otherwise would render the definition of

brandishing superfluous.  See U.S.S.G. § 1B1.1, comment. (n.1(c)),

supra.

         The government contends, and the district court held,

that when LaFortune pointed a cocked gun at the head of female

teller, held the gun in his hand while shoving a customer to the

floor, ordering (by yelling at) her to get down, don't talk, and

aimed the weapon directly at another bank employee while giving

orders, it constituted "otherwise used."  Wooden, 169 F.3d at 676;

Gilkey, 118 F.3d at 705.

         We agree.  LaFortune's conduct amounted to more than

brandishing, the general pointing or waving the weapon about in a

threatening manner.  As we view it, a person may "brandish" a

weapon to "advise" those concerned that he possesses the general

ability to do violence, and that violence is imminently and

immediately available.  A general, or even pompous, showing of

weapons, involving what one would consider an arrogant

demonstration of their presence, constitutes the generalized

warning that these weapons may be, in the future, used and not

merely brandished.  Altering this general display of weaponry by

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."  Gilkey, 118 F.3d at 706.

                               IV.

         The judgment of the district court is AFFIRMED.