United States v. Bendtzen

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50249
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00214-CAS
FREDERICK BENDTZEN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
May 5, 2008—Pasadena, California
Filed September 5, 2008
Before: Kim McLane Wardlaw and Sandra S. Ikuta,
Circuit Judges, and Jeremy D. Fogel,* District Judge.
Opinion by Judge Wardlaw
*The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
12317
UNITED STATES v. BENDTZEN 12321
COUNSEL
Sean K. Kennedy, Gia Kim, Federal Public Defenders, Los
Angeles, California, for defendant-appellant Frederick Bendt-
zen.
Thomas P. O’Brien, Christine C. Ewell, Christopher K. Lui,
United States Attorneys, Los Angeles, California, for
plaintiff-appellee United States of America.
OPINION
WARDLAW, Circuit Judge:
Frederick Bendtzen pled guilty to bank robbery, in viola-
tion of 18 U.S.C. § 2113(a), and was sentenced to eighty-
months imprisonment, twelve months below the low-end
Guidelines range of ninety-two months, followed by three
years of supervised release. Bendtzen appeals the upward
adjustment to his offense level pursuant to U.S. SENTENCING
GUIDELINES MANUAL (“U.S.S.G.”) § 2B3.1(b)(2) (2005),
which provides for a four-level increase where “a dangerous
weapon was otherwise used,” arguing that because he used
only a fake bomb, he did not use a dangerous weapon within
the meaning of § 2B3.1. He also contends that his criminal
history score overrepresented his criminal past and that the
district court erred by placing him in category VI. Because we
conclude that the district court correctly calculated Bendt-
zen’s Guideline sentence and that the sentence imposed was
reasonable, we affirm.
12322 UNITED STATES v. BENDTZEN
I. BACKGROUND
On March 2, 2006, Bendtzen entered the Santa Barbara
Bank and Trust and handed one of the tellers a note, which
read: “This is a robbery. I have a bomb on me, hand over all
you have or boom. No exploding money! I have a friend out-
side with same trigger. Wait 3 minutes before doing anything
else or boom!!” The teller gave Bendtzen $3,475 from her
drawer. Bendtzen then placed what appeared to be a bomb on
the counter of the bank teller’s window. He pretended to press
the detonator. After instructing the teller to wait four minutes
before doing anything, Bendtzen fled the bank. The Santa
Barbara police responded to the bank’s alarm with a bomb
squad, which removed the device and destroyed a clock that
looked like a detonator. Bendtzen was readily identified
through the bank surveillance photos of the robbery and was
arrested shortly thereafter.
Bendtzen was indicted for bank robbery, in violation of 18
U.S.C. § 2113(a). On September 27, 2006, he entered a guilty
plea. The Probation Office recommended a Guideline sen-
tence of 92 to 115 months, based on a base offense level of
twenty, a two-level upward adjustment for robbing a financial
institution, a four-level upward adjustment for otherwise
using a dangerous weapon, and a three-level downward
adjustment for acceptance of responsibility. The Probation
Office also calculated sixteen criminal history points, placing
Bendtzen in criminal history category VI.
At sentencing, Bendtzen argued that the four-level adjust-
ment for otherwise using a dangerous weapon does not apply
to fake weapons, that the Guidelines language was at best
ambiguous and the rule of lenity should apply, and that his
criminal history calculation was unreasonable. The district
court concluded that by the plain language of the Guidelines,
the four-level enhancement applied to both real and fake
weapons. The court also found that, although the Probation
Office’s criminal history calculation did take into account
UNITED STATES v. BENDTZEN 12323
many minor crimes, it also failed to consider many serious
criminal convictions that were outside the ten-year window,
including probation violations; DUIs; possessing, manufactur-
ing, or selling a dangerous weapon; receipt of known stolen
property; burglary; battery; and others. Therefore, the court
determined, in light of the factors enumerated in 18 U.S.C.
§ 3553(a), that an eighty-month sentence was appropriate.
Bendtzen timely appeals.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 18 U.S.C. §§ 1291,
3742(a). We review de novo the district court’s interpretation
of the Sentencing Guidelines. United States v. Cantrell, 433
F.3d 1269, 1279 (9th Cir. 2006). We review the sentence
imposed for an abuse of discretion. Untied States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc). We will reverse
the sentence only where it was procedurally erroneous or sub-
stantively unreasonable. Id.III. ANALYSIS
A. The Sentencing Guidelines’ Definition of “Dangerous
Weapon”
[1] U.S.S.G. § 2B3.1(a) provides that the Base Offense
Level for Robbery is twenty. Subsection (b)(2) describes the
specific offense characteristics related to the use of a weapon
during the robbery:
(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 danger-
ous weapon was brandished or possessed, increase
by 3 levels; or (F) if a threat of death was made,
increase by 2 levels.
12324 UNITED STATES v. BENDTZEN
U.S.S.G. § 2B3.1(b)(2). The district court increased Bendt-
zen’s sentence under § 2B3.1(b)(2)(D), concluding that the
fake bomb used by Bendtzen falls within the Guidelines defi-
nition of “dangerous weapon.”
[2] The general definition of “dangerous weapon” is set
forth in the Commentary to U.S.S.G. § 1B1.1—the Applica-
tion Instructions. See U.S.S.G. § 2B3.1 cmt. n.1 (2005) (refer-
ring the reader to Application Note 1(D) of § 1B1.1 for the
definition of “dangerous weapon”). Before the year 2000, the
term “dangerous weapon” was defined as “an instrument
capable of inflicting death or serious bodily injury.” U.S.S.G.
§ 1B1.1 cmt. n.1(d) (1998). The Guidelines commentary
directly addressed the use of a weapon that appeared to be
dangerous, but in fact was not, instructing: “Where an object
that appeared to be a dangerous weapon was brandished, dis-
played, or possessed, treat the object as a dangerous weapon.”
Id. Thus, before the 2000 amendments to the definition of
“dangerous weapon,” a court could adjust the offense level by
only three levels and only where the fake weapon was bran-
dished, displayed, or possessed. “Otherwise using” a weapon
that appeared to be dangerous, but was not, could not serve
as the basis for a four-level adjustment.
[3] This was changed when the Sentencing Commission
amended the general definition of “dangerous weapon.” The
Sentencing Commission redefined “dangerous weapon” as
(i) an instrument capable of inflicting death or seri-
ous bodily injury; or (ii) an object that is not an
instrument capable of inflicting death or serious bod-
ily injury but (I) closely resembles such an instru-
ment; or (II) the defendant used the object in a
manner that created the impression that the object
was such an instrument (e.g., a defendant wrapped a
UNITED STATES v. BENDTZEN 12325
hand in a towel during a bank robbery to create the
appearance of a gun).[1]
U.S.S.G. § 1B1.1 cmt. n.1(D) (2005).
According to the Sentencing Commission, the purpose of
the amendment was
to clarify under what circumstances an object that is
not an actual, dangerous weapon should be treated as
one for the purposes of the guideline application.
The amendment is in accord with the decisions in
United States v. Shores, 966 F.2d 1383 (11th Cir.
1992) (toy gun carried but never used by a defendant
qualifies as a dangerous weapon because of its
potential, if it were used, to arouse fear in victims
and dangerous reactions by police or security per-
sonnel) and United States v. Dixon, 982 F.2d 116(3rd Cir. 1992) (hand wrapped in a towel qualifies as
a dangerous weapon if the defendant’s actions cre-
ated the impression that the defendant possessed a
dangerous weapon).
U.S.S.G. Supp., App. C, vol. II, amend. 601 (2002).
[4] The 2000 amendment, however, went beyond merely
clarifying the definition of “dangerous weapon.” In particular,
by building a direct reference to fake weapons into the general
definition, without any reference to brandishing or possession,
the 2000 amendment applies to both the three- and the four-
level adjustments. Therefore, whereas before the year 2000
1
“The [2000] amendment also delete[d] the term ‘displayed’ wherever
it appears in the Guidelines Manual in an enhancement with ‘brandished.’
Because ‘brandished’ applies in any case in which ‘all or part of the
weapon was displayed,’ the Commission determined that inclusion of ‘dis-
played’ in the[ ] enhancements is redundant. This part of the amendment
[was] not intended to make a substantive change to the guidelines.”
U.S.S.G. Supp., App. C, vol. II, amend. 601.
12326 UNITED STATES v. BENDTZEN
the use of a fake weapon could qualify only for a “brandish-
ing or possessing” adjustment, after the 2000 amendments it
qualifies for all “dangerous weapon” adjustments. Compare
U.S.S.G. § 1B1.1 cmt. n.1(d) (1998), with § 1B1.1 cmt. n.1(d)
(2000).
[5] Bendtzen makes an argument—which we agree with the
district court is interesting but ultimately unpersuasive—that
the distinction between “brandishing” and “otherwise using”
a dangerous weapon, where the use of a fake weapon can
qualify for the former but not the latter adjustment, survives
the 2000 amendments. In support of this argument, Bendtzen
points to the revised Commentary to § 2B3.1, which reads in
relevant part:
Consistent with Application Note 1(d)(ii) of § 1B1.1
(Application Instructions), an object shall be consid-
ered to be a dangerous weapon for purposes of [the
three-level “brandishing” adjustment] 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).
U.S.S.G. § 2B3.1 cmt. n.2 (2005). This definition is identical
to the general definition of “dangerous weapon,” but only ref-
erences the three-level “brandishing” adjustment. Thus,
Bendtzen argues that this narrower definition applies, and,
accordingly, the use of a fake weapon can qualify only for the
three-level adjustment.
[6] However, applying this narrower definition of “danger-
ous weapon” is prohibited by the Guidelines. The expansive
definition is “of general applicability . . . except to the extent
expressly modified in respect to a particular guideline or pol-
UNITED STATES v. BENDTZEN 12327
icy statement.” U.S.S.G. § 1B1.1 cmt. n.1 (emphasis added).
The narrower definition does not expressly modify the general
definition. See United States v. Orr, 312 F.3d 141, 144 (3d
Cir. 2002) (“An omission in the partial restatement of [Appli-
cation Note 1(d) to § 1B1.1’s definition of dangerous weapon]
in Application Note 2 to § 2B3.1 does not expressly circum-
scribe the general definition, especially in light of the recogni-
tion in Application Note 2 to § 1B1.1 that “[d]efinitions of
terms also may appear in other sections.”) (second alteration
in original). To the contrary, the narrow definition’s prefatory
clause states that it is “[c]onsistent with Application Note
1(d)(ii) of § 1B1.1”—the general definition of “dangerous
weapon.” U.S.S.G. § 2B3.1 cmt. n.2 (emphasis added). We
therefore decline to read the narrow definition of “dangerous
weapon” as overriding the general definition.
[7] Bendtzen points out that the prefatory clause to the
revised Commentary, which explicitly incorporates the gen-
eral definition, creates a redundancy. “It is a well-established
principle of statutory construction that ‘legislative enactments
should not be construed to render their provisions mere sur-
plusage.’ ” Am. Vantage Cos., Inc. v. Table Mountain Ran-
cheria, 292 F.3d 1091, 1098 (9th Cir. 2002) (quoting Dunn v.
Commodity Futures Trading Comm’n, 519 U.S. 465, 472
(1997)). Under Bendtzen’s view, to avoid construing the
revised definition as a mere redundancy, it must be read as
limiting the general definition of “dangerous weapon” as
applying only to the three-level “brandishing” adjustment.
[8] Like most rules of statutory interpretation, the canon of
statutory construction upon which Bendtzen relies is not an
absolute principle. An unnecessary provision within a statute,
“inserted out of an abundance of caution[, is] a drafting
imprecision venerable enough to have left its mark on legal
Latin (ex abundanti cautela).” Fort Stewart Sch. v. Fed.
Labor Relations Auth., 495 U.S. 641, 646 (1990). It is likely
that the narrow definition was inserted out of excess caution
to ensure that district courts would apply the new, general
12328 UNITED STATES v. BENDTZEN
definition of “dangerous weapon” when applying the three-
level “brandishing” adjustment. See Orr, 312 F.3d at 144 (“It
is . . . likely that Application Note 2 to § 2B3.1 focuses on
reminding district courts to apply the expansive definition of
“dangerous weapon” in § 1B1.1.”).
[9] We conclude that the general definition of “dangerous
weapon,” which includes objects that appear to be dangerous
weapons, applies to both the three-level “brandishing” adjust-
ment as well as the four-level “otherwise used” adjustment.
The district court correctly found that Bendtzen “otherwise
used” a fake bomb. The parties do not—indeed they cannot—
dispute that Bendtzen’s conduct was more culpable than mere
“brandishing.” His use of the fake bomb was intended to and
did have a coercive effect and aroused fear and panic in the
bank. He threatened to kill the bank teller by pretending to
press a detonator and leaving the fake bomb on the teller’s
counter. The use of the fake bomb required the resources of
the city to ensure the public safety exactly as a real bomb
would have required. Indeed, to ensure the safety of the
bank’s employees and others, the Santa Barbara Police bomb
squad evacuated the bank and used a robot to remove the
device, which was then destroyed. Bendtzen’s conduct is vir-
tually indistinguishable from that of the defendant’s in United
States v. Miller, 206 F.3d 1051, 1052 (11th Cir. 2000), who
used a fake bomb to rob a bank. In Miller, the Eleventh Cir-
cuit held that “lighting the fuse [of a fake bomb] is like the
cocking of a handgun,” and thus it constitutes “otherwise
us[ing]” a fake bomb. Id. at 1054. Because Bendtzen “other-
wise used” an object that closely resembled an instrument
capable of inflicting death or serious bodily injury—a fake
bomb—when he robbed the Santa Barbara Bank and Trust,
the district court did not err in applying the four-level adjust-
ment to his offense level.
[10] We also reject Bendtzen’s argument that, because
these Guidelines provisions create an ambiguity, the rule of
lenity should apply. See United States v. Fuentes-Barahona,
UNITED STATES v. BENDTZEN 12329
111 F.3d 651, 653 (9th Cir. 1997) (per curiam) (holding that
the rule of lenity applies to the Sentencing Guidelines as well
as to penal statutes). The rule of lenity is applicable only
where “there is a grievous ambiguity or uncertainty in the lan-
guage and structure of [an] Act, such that even after a court
has seize[d] every thing from which aid can be derived, it is
still left with an ambiguous statute.” Chapman v. United
States, 500 U.S. 453, 463 (1991) (second alteration in origi-
nal, internal quotation marks and citations omitted); see also
United States v. Technic Servs., Inc., 314 F.3d 1031, 1052
(9th Cir. 2002) (noting that application of the rule of lenity is
appropriate only if the Guidelines are “truly ambiguous”).
Here, although Bendtzen advanced an argument that, if
accepted, might create an ambiguity where none otherwise
exists, it remains the case that, simply read, the definition of
“dangerous weapon” uniformly applies to both the “brandish-
ing” and “otherwise using” adjustments. Because the plain
meaning of these Guidelines provisions is clear, the rule of
lenity is inapplicable.
B. Reasonableness of Bentdzen’s Sentence
Bendtzen argues that the sentence imposed by the district
court was unreasonable because it did not take into account
the overstated nature of his criminal history score. Bendtzen
points out that three of his convictions were a month shy of
falling beyond the ten-year window at the time he committed
the instant offense and that they were each of a minor nature.
The Government responds that a below-Guidelines sentence
should be presumed reasonable and that even without the pre-
sumption, Bendtzen’s sentence is reasonable.
[11] In Carty, we clarified that “[o]n appeal, we first con-
sider whether the district court committed significant proce-
dural error, then we consider the substantive reasonableness
of the sentence.” 520 F.3d at 993. We explicitly rejected any
presumption of reasonableness for within-Guidelines sen-
tences. Id. at 988.
12330 UNITED STATES v. BENDTZEN
[12] “It would be procedural error for a district court to fail
to calculate—or to calculate incorrectly—the Guidelines
range; to treat the Guidelines as mandatory instead of advi-
sory; to fail to consider the § 3553(a) factors; to choose a sen-
tence based on clearly erroneous facts; or to fail adequately to
explain the sentence selected . . . .”2 Carty, 520 F.3d at 993.
Bendtzen’s sentence was correctly calculated. The district
court properly counted “[a]ny . . . prior sentence that was
imposed within ten years of the defendant’s commencement
of the instant offense.” U.S.S.G. § 4A1.2(e)(2) (2005). In
addition, the district court did not treat the Guidelines as man-
datory; indeed, it imposed a sentence below the Guidelines
range. Further, the district court carefully considered the
§ 3553(a) factors, and imposed a sentence that was sufficient,
but not greater than necessary, to achieve the goals of sentenc-
ing.3 Finally, the court’s explanation for the sentence is more
than adequate. Following arguments from counsel, the court
explained that Bendtzen had “a serious criminal history situa-
tion,” but had “suffered from extreme childhood abuse,” was
“extremely remorseful,” had drug and alcohol problems that
contributed to the offense, and had “very supportive parents.”
The district court also reasoned on the record that an eighty-
month sentence would serve as much of a deterrent as a sen-
tence within the Guidelines range. Finally, the court rejected
Bendtzen’s argument that his criminal history was overrepre-
sented because he had committed several serious crimes that
were not counted, balancing out the aged and minor nature of
some of the counted convictions. See Rita v. United States,
2
Bendtzen does not challenge any of the district court’s findings as
clearly erroneous.
3
At Bendtzen’s sentencing hearing, the district court stated:
[I]n this case it seems to me that the question that I have to
answer when I evaluate the 3553(a) factors is . . . whether the
sentence imposed is a sufficient deterrent. And I have to say after
looking at this file that I think 80 months in custody is a suffi-
cient deterrent and 92 months in custody would not make any dif-
ference under the 3553(a) factors.
UNITED STATES v. BENDTZEN 12331
127 S.Ct. 2456, 2469 (2007) (holding that there was no proce-
dural error when a district court simply stated that defendant’s
reasons for a below-Guidelines sentence were “insufficient,”
and that a sentence at the bottom of the Guidelines range was
“appropriate”); Carty, 520 F.3d at 995 (upholding a sentence
in a case that was not complex, even though the district court
“gave no explicit reasons” for the sentence imposed).
[13] Bendtzen nevertheless argues that the sentence is sub-
stantively unreasonable given the nature of his criminal his-
tory. Although we do not presume a sentence is reasonable
because it is within or below the Guidelines range, “we recog-
nize that a correctly calculated Guidelines sentence will nor-
mally not be found unreasonable on appeal.” Carty, 520 F.3d
at 988. “For a non-Guidelines sentence, we are to ‘give due
deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.’ ” Id. at
993 (quoting Gall v. United States, 128 S.Ct. 586, 597
(2007)).
Because “a Guidelines sentence ‘will usually be reason-
able,’ ” id. at 994 (quoting Rita, 127 S.Ct. at 2465), Bendt-
zen’s below-Guidelines sentence, supported by the district
court’s specific reasoning, is reasonable. See United States v.
Perez-Perez, 512 F.3d 514, 515-16 (9th Cir. 2008) (holding
that a within-Guidelines sentence based in part on the defen-
dant’s extensive criminal history was reasonable despite the
defendant’s argument that his prior drug conviction was de
minimis).
CONCLUSION
[14] The Sentencing Guidelines provide a four-level adjust-
ment for “otherwise us[ing]” a dangerous weapon in connec-
tion with a robbery. U.S.S.G. § 2B3.1(b)(2)(D). For purposes
of this adjustment, the definition of “dangerous weapon”
includes objects that appear to be instruments capable of
inflicting death or serious bodily injury. U.S.S.G. § 1B1.1
12332 UNITED STATES v. BENDTZEN
cmt. n.1(D). Bendtzen’s use of the fake bomb constituted
“otherwise us[ing] a dangerous weapon.” Further, the district
court did not err by considering Bendtzen’s past crimes and
thereby arriving at a category VI criminal history. Accord-
ingly, Bendtzen’s eighty-month sentence is substantively rea-
sonable.
AFFIRMED.