United States v. Brandon Sanders

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 2, 2024
• Docket: 22-4051
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0001n.06

Case No. 22-4051

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Jan 02, 2024 UNITED STATES OF AMERICA, ) KELLY L. STEPHENS, Clerk Plaintiff - Appellee, ) ) v. ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ) BRANDON SANDERS, NORTHERN DISTRICT OF OHIO ) Defendant - Appellant. ) OPINION ) )

Before: BATCHELDER, CLAY, and GIBBONS, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Brandon Sanders pled guilty to a four-count

indictment charging him with bank robbery in violation of 18 U.S.C. § 2113(a) and (f). At

sentencing, the district court imposed a within-Guidelines sentence of 120 months’ imprisonment.

Sanders now appeals that sentence as procedurally unreasonable, arguing that the district court

failed to consider a principal argument in his motion for a downward variance and erroneously

applied a two-point enhancement for threat of death. Because the record fails to support Sanders’s

arguments, we affirm.

I.

Brandon Keith Sanders pled guilty to four counts of bank robbery under 18 U.S.C.

§ 2113(a) and (f). In February 2022, three and a half months after being released from a nine-year

prison sentence for aggravated robbery, Sanders robbed four banks. Sanders committed each

robbery by showing the teller a note indicating he had a gun. The first note read, “Give me cash No. 22-4051, United States v. Sanders

now! Gotta gun not playing!” in all capital letters. DE 18, PSR, Page ID 69. The second note

read, “Give me the money and I have a gun.” Id. at 70. The third note directed the teller to “[g]ive

him all the money and that [he] may or may not have a gun.” Id. (second alteration in original).

The fourth note read, “Give me money, I have a gun.” Id. Sanders did not speak much or at all

during the robberies. In the first robbery, Sanders greeted the teller before reaching into his

sweatshirt pocket and displaying the note, and in the third robbery, Sanders said only the words

“come on.” Id. at 69, 70. Sanders did not shout or display a gun.

After Sanders pled guilty to the four-count indictment, the United States Probation

Department issued a presentence report. The presentence report applied a two-point enhancement

under U.S.S.G. § 2B3.1(b)(2)(F) to each count because Sanders made a threat of death during the

commission of each robbery—specifically, the report found that each of the notes’ statements that

Sanders had a gun would instill in a reasonable person a fear of death. The ultimate offense level,

plus Sanders’s criminal history, placed his Guidelines range at 100 to 125 months. Sanders

objected to the enhancement for threat of death, maintaining that he “did not possess, fire, or

display a weapon,” and that he “did not state he would use a weapon to kill anyone” nor “make

gestures indicating he would kill anyone.” DE 18, PSR, Page ID 88. The Probation Officer

rejected this argument, stating that U.S.S.G. § 2B3.1(b)(2)(F) hinges not on a precise statement of

an intent to kill, but rather on whether the offender’s conduct instills in a reasonable person a fear

of death. The officer further found that the language in Sanders’s notes achieved that.

In his presentence memorandum, Sanders advanced two arguments. First, he reiterated his

objection to the threat of death enhancement. Without the enhancement, Sanders noted that his

Guidelines range would be 84 to 105 months. Sanders then argued for a downward departure to

70 months as sufficient under the sentencing factors. This was because Sanders’s criminal history

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showed consistent offenses and incarceration since age 14. Sanders argued that this troubled

history demonstrated “institutionalization,” or the “negative psychological effects of

imprisonment,” entailing a dependence on the institutional structure to control behavior and a

decreased ability to refrain from harmful or self-destructive behavior. DE 20, Def. Sentencing

Mem., Page ID 99. Sanders requested reentry assistance and “a way to address the negative

psychological effects of imprisonment,” both of which would “reduce his risk of recidivism.” Id.

at 100 (citing 18 U.S.C. § 3553(a)(2)(B), (C)). Sanders’s fiancée, Cori Isom, also submitted a

letter of support containing similar arguments. See DE 21-1, Letter of Support, Page ID 102–03

(“Mr. Sanders was taken into the prison system early, so a lot of things that someone on the outside

would have the ability to learn he was limited”; “With Mr. Sanders being away for so long, not

around the people he cares about, also losing people in the process . . . [t]hat can do a lot to

someone’s mental and emotional state.”).

During the sentencing hearing, the district court first discussed Sanders’s objection to the

threat of death enhancement. After hearing argument from Sanders’s counsel on the “mitigating

circumstances,” specifically that Sanders did not make any movement or other indication that he

had a weapon, the district court found that the bank tellers could reasonably perceive that their life

was in danger, and thus found a threat of death by a preponderance of the evidence. The district

court then calculated the Guidelines range as 100 to 125 months, then heard from Sanders’s

counsel, Sanders himself, and the government. Sanders’s counsel explicitly referred to and then

reiterated Sanders’s second argument in his sentencing memorandum, noting that Sanders’s first

interaction with the law was at age 14, and that he had been involved in the criminal justice system

since then, but that Sanders recognized he needed help and positive programming to “transition

back into society” with “extra support.” DE 33, Sentencing Hr’g, Page ID 191–92. Then Sanders

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addressed the court, apologizing to those he hurt and explaining his belief that a long prison term

would not help him, specifically that it would “do nothing” and it was not “the type of help [he]

need[ed].” Id. at 194–95. The government then argued for a sentence within the Guidelines range,

also noting that Sanders’s state institution record showed 148 conduct reports for various rule

violations, 30 of them for obscene acts, during his previous terms of incarceration.

Before proceeding with sentencing, the district judge noted that he had “listened carefully

to both counsel and most significantly” to Sanders himself. Id. at 197. The district court then

weighed the 18 U.S.C. § 3553(a) factors and held that a sentence within the advisory range, but at

the high end—120 months—was sufficient but not longer than necessary to achieve the goals of

sentencing. Particularly relevant was the fact that Sanders had just been released from his nine-

year prison term for a similar crime, and that the previous sentence thus had not served as an

effective deterrent.

Finally, the district court asked whether there were any objections from either side.

Sanders’s counsel objected to the “procedural reasonableness, in particular, using the prior

sentence that [Sanders] served as a foundation for this one and not fully accounting for the

mitigating factors we developed.” Id. at 200. The district judge acknowledged that he understood

“most of the objections,” disagreed with Sanders’s counsel on the use of the prior sentence, and

adjourned. Id. Sanders timely appealed.

II.

On appeal, Sanders challenges his sentence on two grounds. First, Sanders claims that the

district court procedurally erred by failing to address his argument for a downward variance, which

he raised both at the sentencing hearing and in his sentencing memorandum. Second, Sanders

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claims the district court erred by applying the “threat of death” enhancement under U.S.S.G.

§ 2B3.1(b)(2)(F) to each of the four bank robbery counts.

III.

Sanders claims that the district court procedurally erred by failing to explicitly address his

argument for a downward variance of 70 months premised on Sanders’s psychological health and

“institutionalization” issues due to his history of incarceration. The parties agree that we review

the district court’s determination for abuse of discretion.1

1 The government seems to lay the foundation for a finding that plain error, rather than abuse of discretion, applies because Sanders did not properly preserve his objection. But the government does not round out this argument. The government alleges that Sanders’s response to the district court’s United States v. Bostic question, in which he objected to the “procedural reasonableness, in particular . . . not fully accounting for the mitigating factors we developed[,]” lacked sufficient specificity concerning which mitigating factors he was referencing. DE 33, Sentencing Hr’g, Page ID 200. The Sixth Circuit requires a party’s Bostic objection to contain a “reasonable degree of specificity” that “adequately apprise[s] the trial court of the true basis for his objection.” United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004) (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir. 1980)). If a party answers the court’s Bostic question with “such a high degree of generality that the district court has no opportunity to correct its purported error,” plain error review applies. United States v. Simmons, 587 F.3d 348, 358 (6th Cir. 2009). In Simmons, the court held that defense counsel’s objection to the “procedural . . . aspect[]” of the sentence, without any specific allegation that the sentencing judge failed to address her policy argument, nor any specific objection to that purported failure, was too general and thus plain error review applied. Id. at 355–58 (ellipses and alteration in original). Here, although Sanders did not specifically object that the district court had failed to consider his “institutionalization” argument, his objection referenced “mitigating factors.” DE 33, Sentencing Hr’g, Page ID 200. True, considering that Sanders’s counsel and the district court discussed “mitigation” and “mitigating factors” in the context of the threat of death enhancement, it may not have been clear to the district judge that Sanders was then referring to the “institutionalization” argument, as opposed to the threat of death argument, and so Sanders’s statement may not have “adequately apprised the trial court of the true basis for his objection.” Bostic, 371 F.3d at 871 (quoting LeBlanc, 612 F.2d at 1014); see also United States v. Taylor, 800 F.3d 701, 715 (6th Cir. 2015). Even so, Sanders’s objection was more specific than those rejected in Simmons, 587 F.3d at 355 (“Your Honor, I object just for the record for the procedural, substantive aspects.”), United States v. Harmon, 607 F.3d 233, 237 (6th Cir. 2010) (“Only as to the concurrency, Your Honor.”), and United States v. McAllister, 491 F. App’x 569, 577 (6th Cir. 2012) (“[W]e would just reserve objections to the sentence.”). Abuse of discretion, rather than plain error review, applies. -5- No. 22-4051, United States v. Sanders

This court reviews procedural sentencing challenges under a “deferential abuse-of-

discretion standard.” Gall v. United States, 552 U.S. 38, 52 (2007). “A sentence is procedurally

reasonable if the district court did not commit any significant procedural errors,” United States v.

Zabel, 35 F.4th 493, 504 (6th Cir. 2022), such as “failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” United States v. Adkins, 729 F.3d 559, 563 (6th Cir. 2013) (alteration

in original) (quoting Gall, 552 U.S. at 51). Sentences within the applicable Guidelines range enjoy

a presumption of reasonableness, United States v. Vowell, 516 F.3d 503, 509 (6th Cir. 2008), and

to prevail under the abuse of discretion standard, a defendant’s argument must go beyond

“assert[ing] that the district court should have balanced the § 3553(a) factors differently.” United

States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008).

“When a defendant raises a particular[, nonfrivolous] argument in seeking a lower

sentence,” the sentence will be procedurally reasonable if the record reflects “both that the district

judge considered the defendant’s argument and that the judge explained the basis for rejecting it.”

United States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009) (alteration in original) (quoting United

States v. Lalonde, 509 F.3d 750, 770 (6th Cir. 2007)). But “the district court is not required to

‘give the reasons for rejecting any and all arguments [made] by’” the defendant for an alternative

sentence. Id. (alteration in original) (quoting United States v. Vonner, 516 F.3d 382, 387 (6th Cir.

2008) (en banc)); see also United States v. Judge, 649 F.3d 453, 457 (6th Cir. 2011) (“[I]t is well-

settled that [the district court] is not required to respond to every argument raised by the

defendant.”). And “within-Guidelines sentences need not be explained with the same level of

detail as non-Guidelines sentences.” Judge, 649 F.3d at 458. Rather, the inquiry “is whether the

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record makes clear that the sentencing judge listened to each argument, considered the supporting

evidence, was fully aware of the defendant’s circumstances and took them into account in

sentencing him.” United States v. Gunter, 620 F.3d 642, 646 (6th Cir. 2010) (quoting Gapinski,

561 F.3d at 474); see also United States v. Petrus, 588 F.3d 347, 352 (6th Cir. 2009) (explaining

that “‘a district court’s failure to address each argument [of the defendant] head-on will not lead

to automatic vacatur’ if the context and the record make the court’s reasoning clear” (alteration in

original) (quoting United States v. Smith, 505 F.3d 463, 468 (6th Cir. 2007)). Our review is a

“functional” one, determining “whether, based on the entirety of the sentencing transcript and

written opinion, . . . we are satisfied that the district court fulfilled this obligation.” Gunter, 620

F.3d at 646. The focus is not “on what the transcript reveals that the court said,” but “more on

what the transcript reveals that the court did.” Id.; see also United States v. Chiolo, 643 F.3d 177,

185 (6th Cir. 2011).

Sanders’s argument for a downward variance of 70 months due to his institutionalization

was not frivolous, and thus was entitled to consideration by the district court. See Chiolo, 643

F.3d at 183 (treating Chiolo’s arguments regarding his lack of psychological counseling, his

mother’s dementia, and his need to undergo anger management as nonfrivolous sentencing

arguments); United States v. Montgomery, 787 F. App’x 272, 280 (6th Cir. 2019) (treating

defendant’s difficult childhood and resulting mental health issues as a nonfrivolous sentencing

argument); United States v. Campbell, 434 F. App’x 507, 512 (6th Cir. 2011) (treating the severity

of the defendant’s mental health issues as a nonfrivolous sentencing argument). The question then

is whether, based on a functional review of the record, it is clear that “the sentencing judge listened

to each argument, considered the supporting evidence, was fully aware of the defendant’s

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circumstances and took them into account in sentencing him.” Gunter, 620 F.3d at 646 (quoting

Gapinski, 561 F.3d at 474).

The principles set out in United States v. Chiolo resolve Sanders’s claim. Chiolo claimed

that his sentence was procedurally unreasonable because the district court did not address several

of his nonfrivolous arguments, some of which related to ongoing mental health issues, for a within-

or below-Guidelines sentence. Chiolo, 643 F.3d at 182. This court acknowledged that the district

court had not expressly addressed these arguments, but reasoned that the “detailed rationale” that

the district court gave for its sentencing decision was “logically responsive” to Chiolo’s

“conceptually simple” arguments for a lesser sentence. Id. The district court’s consideration of

and reasoning for rejecting those arguments was thus “apparent from the ‘context and the record,’”

and so it did not abuse its discretion. Id. (quoting Rita v. United States, 551 U.S. 338, 359 (2007)).

As in Chiolo, the district court’s imposition of a sentence at the high end of the Guidelines’

recommendation, given the seriousness of Sanders’s offense and the proximity to his release from

a nine-year sentence for a similar crime, implicitly rejected Sanders’s conceptually straightforward

argument for a lesser sentence due to psychological issues generated by his history of

incarceration. First, it is clear from the record that the district court listened to Sanders’s downward

variance argument. See Gunter, 620 F.3d at 646. In presenting his argument on the appropriate

sentence, Sanders’s counsel explicitly referenced both the sentencing memorandum and the

downward variance argument within it, highlighting Sanders’s consistent involvement in the

criminal justice system from a young age. Then Sanders himself, in less eloquent terms, made the

same argument, asserting that a longer sentence was not “the type of help [he] need[ed]” and that

it would “do nothing.” DE 33, Sentencing Hr’g, Page ID 195. The district judge explicitly

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acknowledged that he had “listened carefully” to Sanders’s counsel and “most significantly” to

Sanders himself. Id. at 197.

The record also shows that the district court considered the supporting evidence, especially

Isom’s letter of support, which contained similar arguments for leniency based on psychological

issues incurred from incarceration beginning at a young age. See Gunter, 620 F.3d at 646. The

record further demonstrates that the district court was fully aware of Sanders’s circumstances and

took them into account when sentencing him. Id. In making the sentencing determination, the

district court acknowledged its obligation to consider everything it had learned about Sanders,

along with the concurrent obligation to consider the four crimes, the advisory range, and the other

§ 3553(a) factors. The district court also demonstrated, by discussing Isom’s letter with Sanders,

that it had read and considered that information about Sanders’s history and characteristics.

Finally, the district court imposed the substance abuse treatment and testing condition of

supervised release, showing consideration for Sanders’s self-reported substance use in his PSR.

The record accordingly makes clear that the district court understood Sanders’s history and

circumstances and the nature of his downward variance argument. Cf. United States v. Wallace,

597 F.3d 794, 806 (6th Cir. 2010) (finding that no part of the record made clear that the district

judge understood the defendant’s nonfrivolous argument).

The district court’s decision to impose a within-Guidelines sentence highlighted both the

fact that Sanders committed the four robberies only a few months after being released from a nine-

year term for a similar crime and the seriousness of the robberies, specifically the tellers’

reasonable belief that Sanders had a gun and that their lives were in danger. As in Chiolo, this

“detailed rationale” was “logically responsive” to Sanders’s “conceptually simple” arguments for

a lesser sentence. Chiolo, 643 F.3d at 182. Sanders’s request to vary downward to a sentence

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lower than the nine-year (108-month) sentence he had just served for a similar crime was

conceptually simple and straightforward. See Rita, 551 U.S. at 359; Chiolo, 643 F.3d at 182;

Judge, 649 F.3d at 457–58 (noting that a district court need not respond to straightforward

arguments). The imposition of a sentence on the high end of the Guidelines—120 months—

implicitly rejected Sanders’s argument that a lesser sentence would help him combat further

institutionalization effects. See Chiolo, 643 F.3d at 184. When a judge decides simply to apply

the Guidelines, doing so does not require a lengthy explanation. Taylor, 800 F.3d at 715 (quoting

Vonner, 516 F.3d at 387). While the judge here might have said more, “[w]here a matter is . . .

conceptually simple . . . and the record makes clear that the sentencing judge considered the

evidence and arguments,” the law does not require the judge to write—or say—more. Rita, 551

U.S. at 359. The district court here did not abuse its discretion in imposing a within-Guidelines

sentence where the record shows the court “listened carefully” to and considered, yet implicitly

rejected, Sanders’s nonfrivolous argument. See DE 33, Sentencing Hr’g, Page ID 197.

Sanders’s arguments to the contrary are unavailing. Sanders claims that there is an

incongruity in our case law between a more formalistic approach that would require the district

court to respond directly to the nonfrivolous argument and a more functional approach that focuses

on the overall sentencing record to determine whether the district court considered the nonfrivolous

argument. Sanders points to an unpublished case, United States v. Moore, 654 F. App’x 705 (6th

Cir. 2016), for this proposition. There are a few responses to this argument. First, Sanders

acknowledges that there are published cases in this circuit that definitively adopt the more

functional approach. Second, while Moore points out what it views to be some “imprecision” in

our case law between a requirement of a formalistic approach and a functional approach, Moore

itself clearly adopts the functional approach as the governing standard. See Moore, 654 F. App’x

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at 710–11 (holding that “the record must reflect both (1) that the district court considered a

defendant’s nonfrivolous argument for a particular sentence, and (2) why that argument was

rejected,” and noting that the court’s “consideration of the argument and its reasons for rejecting

the same need not, however, always be explicit or specific; the record might be sufficient for us to

extract this information implicitly and contextually”). Moore thus does not propose a hybrid

approach as Sanders asserts, but instead follows the functional approach of Gapinski, Gunter,

Vonner, and Chiolo, among others. True, Moore cautioned that “the better practice” for a district

court is “to give explicit reasons for rejecting all non-frivolous arguments.” Id. at 711 (quoting

Chiolo, 643 F.3d at 185). But “the better practice” is not the governing practice. And finally, the

cases that Sanders cites for the proposition that the district court failed to consider the nonfrivolous

argument, thus rendering the sentence procedurally unreasonable, do not refute the functional

approach.2

2 Wallace, 597 F.3d at 803–07 (acknowledging that “[i]t is well-settled that a district judge need not ‘give the reasons for rejecting any and all arguments by the parties for alternative sentences,’” and that a district judge must only “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing”) (first quoting Vonner, 516 F.3d at 387, then quoting Gall, 552 U.S. at 50); Gapinski, 561 F.3d at 474 (acknowledging that “the district court is not required to ‘give the reasons for rejecting any and all arguments [made] by the parties for alternative sentences,’” and only that “the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it” (alteration in original) (emphases added) (first quoting Vonner, 516 F.3d at 387, then quoting Lalonde, 509 F.3d at 770)); United States v. Peters, 512 F.3d 787, 788–89 (6th Cir. 2008); United States v. Jones, 489 F.3d 243, 251–52 (6th Cir. 2007) (holding that the “record reflect[ed] that the district court considered all of Jones’s arguments”); United States v. Davy, 433 F. App’x 343, 351– 52 (6th Cir. 2011) (acknowledging that a district judge can “implicitly” address a defendant’s argument); United States v. Robertson, 309 F. App’x 918, 923 (6th Cir. 2009) (engaging in a “[c]omplete review of the sentencing transcript” and merely finding that the sentencing transcript did not show that the district judge understood or considered the argument). - 11 - No. 22-4051, United States v. Sanders

IV.

Sanders also contends the district court erred in applying the two-level enhancement for

threat of death. Specifically, he alleges its analysis of the threat of death enhancement failed to

engage in a full review of mitigating factors per United States v. Wooten, 689 F.3d 570 (6th Cir.

2012). This court reviews de novo the district court’s application of the Guidelines to a particular

set of facts, including whether the facts warrant the sentencing enhancement under U.S.S.G.

§ 2B3.1(b)(2)(F). United States v. Winbush, 296 F.3d 442, 443 (6th Cir. 2002).

The Guidelines application note for the threat of death enhancement clarifies the threat may

be either oral or written, and the defendant need not state expressly his intent to kill the victim for

the enhancement to apply. U.S.S.G. § 2B3.1(b)(2)(F), comment. n.6. The enhancement turns on

whether the offender engaged in conduct that would instill in a reasonable person a fear of death.

Id. United States v. Clark, 294 F.3d 791 (6th Cir. 2002), and United States v. Winbush both held

that a note in a bank robbery stating some variation of “I have a gun,” even without any threatening

gestures or display of a weapon, would instill in a reasonable bank teller a fear of death. Clark,

294 F.3d at 795; Winbush, 296 F.3d at 443. Wooten acknowledged that the statement “I have a

gun” can be sufficient on its own to warrant the threat of death enhancement, but cautioned this is

not a per se rule. Wooten, 689 F.3d at 574–75. Wooten further directed courts to consider any

mitigating factors, if present, such as “the robber’s statements, body language and overall

demeanor, tone of voice, . . . mode of communication,” and the “teller’s impression of the events.”

Id. at 574–77. Wooten does not command a different outcome here for a number of reasons. First,

and most significantly, Sanders used demand notes in each robbery, a “hallmark[] of experienced

bank robbers” that can reasonably “contribute to the intimidating nature of an encounter.” See id.

at 579 (citing United States v. Pacheco, 466 F. App’x 517, 523 (6th Cir. 2012)). Wooten used no

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such demand notes. Id. The use of the notes here thus differentiates this case from Wooten. See,

e.g., United States v. Manley, 618 F. App’x 276, 281 (6th Cir. 2015). And second, unlike in

Wooten, there is no testimony from any of the tellers as to Sanders’s demeanor that would show

he was nonaggressive or nonthreatening. See Wooten, 689 F.3d at 579; see also Manley, 618 F.

App’x at 281. Sanders’s claims that he was “non-aggressive” and “calm and friendly” appear to

be based only on his own contentions, and thus are unpersuasive. See CA6 R. 30, Appellant Br.,

at 25. Nor does the fact that Sanders began the first robbery by greeting the teller mitigate the

teller’s reasonable fear of death, because (1) that greeting occurred before Sanders passed the

demand note, and (2) a reasonable teller would view the purpose of the casual greeting, in light of

the note, as an attempt to avoid drawing attention and allowing for a more likely escape. As in

Clark and Winbush, Sanders’s notes demanding the tellers to give him money and that he had a

gun3 created a reasonable fear of death in each of the tellers, and there were no mitigating

circumstances to counteract that reasonable fear. Clark, 294 F.3d at 795; Winbush, 296 F.3d at

443.

V.

For the foregoing reasons, we affirm Sanders’s sentence.

3 True, Sanders’s note in his third robbery stated that he “may or may not have a gun.” DE 18, PSR, Page ID 70. But no reasonable person would take that statement to mean he does not have a gun, or even that it was likely he did not have a gun. The only reason to threaten that you “may or may not have a gun” is to create in a reasonable person a fear that you do have a gun, and that you will use it if they do not comply. This statement would instill a fear of death in a reasonable teller. See Wooten, 688 F.3d at 580 (Sutton, J., dissenting). - 13 -