United States v. Eric John Moerman

233 F.3d 379, 2000 U.S. App. LEXIS 29587, 2000 WL 1732543

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 22, 2000
• Docket: 99-1783
• Status: Published

Opinions

RALPH B. GUY, JR., J., delivered the opinion of the court, in which HOOD, D.J., joined. ALAN E. NORRIS, J. (pp. 381-82), delivered a separate dissenting opinion.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendant, Eric John Moerman, waiving indictment, entered a guilty plea to an information charging three counts of armed bank robbery in violation of 18 . The single issue presented in this appeal is whether the district court correctly imposed a six-level enhancement for “otherwise using” a firearm in the commission of two of those bank robberies. Defendant contends that he only “brandished” the firearm and therefore should have been subject to only a five-level enhancement on each of the two counts. Our de novo review convinces us that only the five-level enhancement should have been imposed, and we reverse and remand for resentencing.

I.

There is no dispute that the facts as set forth in the presentence report accurately describe the defendant’s conduct in connection with the two bank robberies at issue in Counts II and III.

On January 25, 1999, defendant entered the Michigan National Bank armed with a rifle that had a scope. He approached a teller while a customer was still at the window. Defendant cut in front of the bank customer and used the barrel of the rifle to push him aside. Defendant instructed him to move, stating: “Get out of the way, this doesn’t concern you.” Defendant then pointed the rifle at the teller and demanded: “Give me your money.” The bank teller gave defendant $1,272.

On February 10, 1999, defendant robbed the Standard Federal Bank. He was wearing a jacket with the hood pulled over his head and a bandana that covered the bottom portion of his face. During this robbery, defendant possessed a shotgun. He approached the teller while a customer was still at the window and shoved the customer away with his hand or forearm. Defendant then pointed the shotgun at the teller and demanded: “Give me all your money- — all of it — give it to me.” The bank teller gave defendant $3,625.

II.

We review the district court’s application of the sentencing guidelines de novo because it presents a purely legal question. See United States v. Kushmaul, 147 F.3d 498, 500 (6th Cir.1998). The United States Sentencing Guidelines

(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;....

U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2B3.1(b)(2) (1998). The guidelines define “brandished” and “otherwise used” in U.S.S.G. § 1B1.1, comment, (n. 1). The guidelines explain that: “ ‘Brandished’ with reference to a dangerous weapon (including a firearm) means that the weapon was pointed or waved about, or displayed in a threatening manner.” Id. at (n. 1(c)). “ ‘Otherwise 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.” Id. at (n. 1(g)).

As we noted in Kushmaul, 147 F.3d at 500, these definitions are “not particularly useful ones.” Nonetheless, they represent our starting point and, in our view, are as far as we need to go in resolving this issue. It is clear that the scheme of the sentencing guidelines calls for three different degrees of increase in the base offense level depending upon the nature of the use of the firearm during the commission of the crime. While there was no discharge of the firearm here, there clearly was at least brandishing of the firearm during both robberies. Thus, the question boils down to whether the use of the firearm somehow went beyond brandishing, as that term is defined by the guidelines. We conclude that it did not. The concept of brandishing includes both pointing the firearm and pointing it in a threatening manner. That is precisely what was done in connection with the one bank robbery. With regard to the other bank robbery, defendant also moved a customer aside with the barrel of the firearm. This additional conduct by defendant was not accompanied by a threatening statement, however. Rather, defendant made a nonthreatening statement to the effect that the customer should move out of the way because this matter did not concern him.

Although the government cites to a number of cases in which an “otherwise used” enhancement was upheld, none of the cases support its position here. See, e.g., United States v. Rucker, 178 F.3d 1369, 1371 (10th Cir.), cert. denied, 528 U.S. 957, 120 S.Ct. 386, 145 L.Ed.2d 301 (1999); United States v. Wooden, 169 F.3d 674, 676 (11th Cir.1999); United States v. Gilkey, 118 F.3d 702, 705 (10th Cir.1997); United States v. Johnson, 931 F.2d 238, 240 (3d Cir.1991). In each of the eases relied upon by the government, the defendant’s actions and/or statements directly threatened an individual with the use of the firearm if the person being threatened did not comply with the defendant’s demands. There is no claim in this case that the defendant threatened to use the firearm with regard to either of the tellers or the customer.

We attempt to draw no bright line, realizing that under our de novo review each of these cases must be decided on its own facts. Here, we are comfortable with the conclusion that the conduct of the defendant did not go beyond brandishing the weapon.

REVERSED and REMANDED for the limited purpose of recalculating the sentence using the five-point increase, rather than the six-point increase, and for resen-tencing in accordance with the new guideline range.