United States v. Abbott

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 1 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-6234
(D.C. No. CR-02-38-C)
GREGORY W. ABBOTT, a/k/a (W.D. Okla.)
Christopher Derek Abbott, Greg W.
Abbott, Gregory Williard Abbott,
Gregory Willard Abbott, Michael
Kellogg and Greg Abbott,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, PORFILIO and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Gregory W. Abbott appeals the district court’s enhancement of
his sentence by three points for possessing or brandishing a dangerous weapon.
Because the district court did not err in applying the guidelines to increase
defendant’s sentence, we affirm.
In February 2002, defendant entered a bank in Oklahoma and handed the
teller a note stating “This is a robbery! Hand over all cash. Please don’t cause
anyone to be hurt!” See Defendant’s Motion to Show Cause, Ex. 2. During the
robbery, defendant kept his right hand at his waistband, partially obscured by his
jacket. At sentencing, the bank teller testified that defendant appeared to have his
hand on an object with a black handle, and that when she hesitated he indicated
that he had something at his waist. The bank security photos show defendant’s
hand at his waist, obscured by his jacket, throughout the robbery, and in one photo
he appears to emphasize his hand. See Anders Br., Ex. C.
Applying § 2B3.1(b)(2)(E) of the United States Sentencing Guidelines
Manual (USSG), the district court increased defendant’s offense level by three
levels for possessing or brandishing a dangerous weapon during the robbery. The
district court found that defendant’s conduct, coupled with his threat of harm in
the note, created the impression that he had a weapon capable of inflicting death or
serious bodily injury.
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Defendant challenges this ruling. His appointed counsel has filed an Anders
brief and a motion to withdraw from the case. See Anders v. California , 386 U.S.
738, 744 (1967) (permitting counsel who considers an appeal to be frivolous to
advise the court, request permission to withdraw, and submit a brief referring to
portions of the record that arguably support the appeal). As required, copies of the
Anders brief and the motion to withdraw were provided to defendant, who has
filed a response. See Defendant’s Motion to Show Cause. Pursuant to our duty
under Anders , we have conducted an independent review of the record and find no
arguable basis for reversing defendant’s sentence. Counsel is therefore granted
leave to withdraw, and we will not appoint a new attorney for defendant. See id.The district court’s legal interpretation and application of the guidelines are
reviewed de novo . United States v. Farrow , 277 F.3d 1260, 1262 (10th Cir. 2002).
“However, we review factual findings underlying upward adjustments with
deference, overturning them only upon a determination that the findings were
clearly erroneous or without factual support in the record such that our review
leaves us with the firm and definite conviction that a mistake has been made.” Id.(further quotation omitted).
Defendant argues that the district court erred in enhancing his sentence
because it is undisputed that he did not possess a “firearm” during the robbery.
Defendant’s Motion to Show Cause at 1-6. Defendant’s sentence was not
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enhanced, however, for possessing a “firearm,” which requires a five-level
enhancement. See USSG § 2B3.1(b)(2)(C). Instead, his offense level was
increased by three levels for possessing or brandishing a dangerous weapon. Id. at
§ 2B3.1(b)(2)(E). Application Note 2(B) to this section specifically states that a
“dangerous weapon” includes an object used by defendant “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)”.
In Farrow , we considered a similar situation and held that the defendant’s
“concealed hand may be an object which potentially triggers the three-level
enhancement under § 2B3.1(b)(2)(E).” 277 F.3d at 1267. There, defendant kept
his hand in his pocket and told a bank teller not to make a scene or he would do
something reckless. Although defendant did not actually have a gun, we approved
the court’s three-level increase to defendant’s sentence because his conduct and
threats created the impression that he had a dangerous weapon. See also United
States v. Dixon , 982 F.2d 116, 124 (3d Cir. 1992) (approving a three-level
enhancement for a defendant who covered her hand with a towel to simulate a
weapon); United States v. Souther , 221 F.3d 626, 629-30 (4th Cir. 2000) (holding
defendant’s hand appeared to be a dangerous weapon because it was concealed in
his coat pocket and because he told the teller via the note that he possessed a gun).
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The policy underlying these cases is that even the perception of a dangerous
weapon has the potential to add significantly to the danger of injury or death. As
explained in Farrow , “[d]uring the course of a robbery, people confronted with
what they believe to be a dangerous weapon often find their perception impaired
because of fear and the threat of violence. That perceived fear and threat can
itself trigger a violent and even deadly response.” 277 F.3d at 1267 (further
quotation omitted).
In this case, the record supports the district court’s factual finding that
defendant’s concealed hand and threatening note created the impression that he
had a dangerous weapon. Thus it cannot be argued that the district court
committed clear error in increasing defendant’s sentence by three levels under
§ 2B3.1(b)(2)(E) of the Sentencing Guidelines.
Defendant also argues that his attorney was ineffective both at trial and on
appeal. We have held that a direct criminal appeal is not the appropriate
proceeding in which to raise claims of ineffective assistance of counsel. See
United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). Such claims are
more appropriately raised in a 28 U.S.C. § 2255 proceeding, to permit full
development of the facts in the district court. See Massaro v. United States , 123
S. Ct. 1690, 1694-95 (2003); Galloway , 56 F.3d at 1240.
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Appointed counsel’s Motion to Withdraw is GRANTED. Defendant’s
Motion to Amend and Motion to Show Cause are DENIED. The judgment of the
district court is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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