United States v. Albritton

622 F.3d 1104, 2010 U.S. App. LEXIS 19307, 2010 WL 3584033
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 16, 2010
Docket09-30436
StatusPublished
Cited by12 cases

This text of 622 F.3d 1104 (United States v. Albritton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Albritton, 622 F.3d 1104, 2010 U.S. App. LEXIS 19307, 2010 WL 3584033 (9th Cir. 2010).

Opinions

Opinion by Judge THOMPSON; Dissent by Judge BERZON.

[1105]*1105OPINION

THOMPSON, Senior Circuit Judge:

Jason Lee Albritton pleaded guilty to Credit Union (Bank) Robbery, in violation of 18 U.S.C. § 2113(a). Albritton was sentenced to 105 months of incarceration to run consecutive with any other undischarged term of imprisonment, followed by three years of supervised release.

On appeal, Albritton challenges three aspects of his sentence. First, he argues the court improperly determined that he “otherwise used” a dangerous weapon, rather than merely “brandished or possessed” the weapon, and, thus, his offense level was improperly increased by four (4). See U.S. Sentencing Guidelines Manual (hereinafter “U.S.S.G.”) § 2B3.1(b)(2)(D) (addressing an “otherwise used” dangerous weapon); § 2B3.1(b)(2)(E) (imposing an increase of three (3) offense levels for a “brandished or possessed” dangerous weapon). Second, he argues that, because there was no “sustained focus” on a victim, the court improperly increased his offense level by two (2) for “physically restrain[ing]” a victim. See U.S.S.G. § 2B3.1(b)(4)(B). Third, Albritton challenges the consecutive nature of his sentence, arguing that it should be concurrent, or at least partially concurrent, to another term he is serving.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

In his briefing to this court, Albritton admits that in committing the credit union robbery he held a BB pistol while advancing toward a teller who was on the phone. He had a black bag he placed on the counter. The teller stepped back and whispered into the phone, “We’re being robbed.” Albritton ordered the teller to put down the phone and shouted, “Down, Down!” Albritton then turned toward the front door and entered the office of Debi Zeiss, a loan officer. Upon his knocking, she turned around to see a gun pointed at her.1 Albritton said, “Money, hurry.” He followed Zeiss out of her office, holding the BB pistol.

Upon Albritton’s request, we watched a surveillance video of the robbery. The key image of the silent video shows the scene from over and behind the left back corner of the teller’s area, the lobby, the front door, and Zeiss’ office. A ski-masked man with a black bag enters and advances immediately to the teller and toward the camera, holding a gun at eye level pointed at the teller. He sets his bag on her counter, appears to gesture across the room, and then points the gun again at the teller, holding the gun above eye level extended out over the counter. He then lowers the gun, but still points it at the teller until she moves toward and under the camera, disappearing from view.

The man then turns around and moves away from the camera and toward Zeiss’ office. He walks about 10 to 20 feet across the lobby, and points the gun at Zeiss. She does not appear to notice the man until he gets within a few feet of her door, when she looks up. She gets up as he steps into her office, and he motions across the room with the gun. Zeiss leaves the office before him and, with him following closely behind her, she walks back across the lobby in the indicated direction, disappearing off the right side of the image. During this walk, the man does not appear to directly point the gun at Zeiss until about half-way across the scene.

[1106]*1106A few seconds later, in the foreground of the video behind the teller’s desk, the back of the teller’s raised hand briefly appears, and then Zeiss briefly reappears walking toward and under the camera, apparently joining the teller’s position. The man also reappears in the foreground of the video, but he does not again point the gun toward the women — he pulls money from two drawers, collects the cash in his black bag, and leaves the credit union.

The district court watched the surveillance video at Albritton’s sentencing hearing and imposed a within-guidelines sentence. Consistent with the presentence report’s recommendation, the district court sentenced Albritton to 105 months of incarceration to run consecutive with any other undischarged term of imprisonment, followed by three years of supervised release. At the time of sentencing, Albritton was already serving a 51-month term for an armed bank robbery conviction in another state. Albritton appeals his sentence.

DISCUSSION

1. “Otherwise Used” a Dangerous Weapon

We review de novo the district court’s interpretation of the Guidelines, and review for clear error the court’s factual findings. United States v. Alderman, 601 F.3d 949, 951(9th Cir.2010). We have not decided whether the application of the Sentencing Guidelines to the facts is reviewed de novo or for abuse of discretion. United States v. Laurienti, 611 F.3d 530, 552 (9th Cir.2010).

With regard to dangerous weapons, the Sentencing Guidelines’ Application Notes define “brandished” and “otherwise used” as follows:

• Brandished: “[A]ll 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 the dangerous weapon does not have to be directly visible, the weapon must be present.”2
• Otherwise Used: “[T]he 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 cmt. n.1(C) (defining “brandished”); id. § 1B1.1 cmt. n.1(I) (defining “otherwise used”).

In support of the contention that Albritton merely “brandished” the pistol, his attorney argues that the “entire robbery” lasted less than three minutes, the BB pistol was displayed for “no more than a minute-and-a-half,” and the pistol was brandished for “probably less than 10 or 15 seconds.” In addition, during his change of plea hearing in the district court, when asked if he pointed the BB pistol at anyone, Albritton stated: “I can’t recall actually pointing it. I didn’t — it wasn’t a real gun; so I didn’t want them to even look at it. I just ran in and yelled. And I think confusion just set in then.” This statement, however, is refuted by the surveillance video, which shows Albritton pointing the gun directly at each of the two credit union employees.

Albritton erroneously relies on United States v. Moerman for the proposition that a defendant “otherwise used” a weapon only when his or her “actions and/or statements directly threatened an individual with the use of the firearm if the person [1107]*1107being threatened did not comply with the defendant’s demands.” 233 F.3d 379, 381 (6th Cir.2000). Moerman

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Bluebook (online)
622 F.3d 1104, 2010 U.S. App. LEXIS 19307, 2010 WL 3584033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-albritton-ca9-2010.