United States v. Miles

362 F. App'x 314
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 28, 2010
DocketNo. 09-1953
StatusPublished

This text of 362 F. App'x 314 (United States v. Miles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Miles, 362 F. App'x 314 (3d Cir. 2010).

Opinion

OPINION

BARRY, Circuit Judge.

Appellant David Miles appeals his sentence of imprisonment following his plea of guilty to a three-count superceding information charging him with three acts of bank robbery, in violation of 18 U.S.C. § 2113(a). Arguing that the sentence is both proeedurally and substantively unreasonable, Miles asks us to remand to the District Court for re-sentencing. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and will affirm.

BACKGROUND

Because the parties are familiar with the pertinent facts and issues, we include only those necessary to resolve this appeal. During a nine-day period from late November through December 2007, Miles robbed three federally insured banks located in Pennsylvania. Most relevant to this appeal is his robbery on December 4, 2007 of the Wachovia Bank in York, Pennsylvania.

On June 10, 2008, Miles pled guilty to three counts of bank robbery. The Probation Office prepared a presentence report [316]*316(“PSR”) and calculated a total offense level of twenty-seven. With Miles’s criminal history category of VI, the Sentencing Guidelines (U.S.S.G.) range was 130-162 months’ imprisonment. Miles objected to the recommended four-level enhancement under U.S.S.G. § 2B3.1(b)(2)(D) for “otherwise using” a dangerous weapon in connection with his robbery of the Wachovia Bank (Count 1). Instead, Miles argued, he merely “brandished” his weapon, which would result in a three-level enhancement under U.S.S.G. § 2B3.1(b)(2)(E).

The District Court held a hearing to address Miles’s objection. The government called Lori Wagner, who was working at the Wachovia Bank on the date of the robbery. Wagner testified that Miles, with his face covered, walked toward her and “said something like this is no joke, this is the real deal.” (App. at 75-76.) She remembered that “he pointed his hand at me and told me to stand against the wall.” (Id.) Although she could not recall if Miles was holding anything, she read into evidence a statement she made to the police on the day of the robbery, which stated in part as follows:

I was walking across the lobby. A guy came in wearing a black ski mask and jacket. Said this was for real. I heard a click, looked at him. He pointed a gun my way and said get to the corner against the wall, told everyone to put money at one teller station, told them to hurry up.

(Id. at 78.) The government then called another Wachovia employee, Angel Montgomery, who was also present during the robbery. Montgomery recalled seeing Miles enter the bank, “holding a gun up in the air.” (Id. at 88.) She explained that Miles “pointed at [Wagner] with the gun as she was moving and told her to stand back.” (Id.) Although Montgomery could not recall Miles’s exact words, she testified that he did point what was later found to be a toy gun “in [Wagner’s] direction.” (Id.)

In a March 4, 2009 opinion and order, the District Court rejected Miles’s objection to the application of the four-level enhancement. (Id. at 14.) At sentencing on March 24, 2009, Miles and his attorney explained the progress that Miles had made while in prison in dealing with his drug addiction. They also stressed the troubling circumstances that led him to commit his crimes. The Court imposed a sentence of 120 months’ imprisonment, which was ten months below the bottom of the applicable Guideline range, but not as low as Miles had requested.

STANDARD OF REVIEW

We review the District Court’s interpretation of the Guidelines de novo. United States v. Orr, 312 F.3d 141, 143 (3d Cir. 2002). The District Court’s findings of fact underlying the four-level enhancement for “otherwise using” a dangerous weapon are reviewed under the clearly erroneous standard. See United States v. Grier, 585 F.3d 138, 141 (3d Cir.2009); United States v. Dixon, 982 F.2d 116, 119 (3d Cir.1992). After reviewing a sentence for procedural error, we then “review the substantive reasonableness of the sentence under an abuse-of-discretion standard.” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008).

DISCUSSION

Miles raises two arguments in this appeal. First, he argues that the District Court “erroneously interpreted the Sentencing Guidelines” when it applied the four-level enhancement for having “otherwise used” a dangerous weapon. Second, he characterizes the sentence as substantively unreasonable because the Court “did [317]*317not grant a sufficiently substantial downward departure.” (Appellant’s Br. at 4.)

A. Application of the Four-Level Enhancement

As noted above, Miles argues that during the December 4, 2007 robbery, he merely “brandished” rather than “otherwise used” a dangerous weapon and, therefore, his offense level should have been increased by three levels, rather than four.1

The Guidelines define the terms as follows:

“Brandished” ... means that all 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.
“Otherwise used” ... 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.

U.S.S.G. § 1B1.1, cmt. 1(C), (I). Finding a workable distinction between “brandished” and “otherwise used” is not a new venture. As we explained in United States v. Orr, “[t]he question, then, which must be answered is this: when does conduct constituting brandishing become sufficiently threatening such that the weapon was ‘otherwise used’?” 312 F.3d at 144. In United States v. Johnson, we cited with approval a workable distinction articulated by the Court of Appeals for the First Circuit:

[A] person may “brandish” a weapon to “advise” those concerned that he possesses the general ability to do violence, and that violence is imminently or immediately available-Altering this general display of weaponry by [for instance] specifically leveling a cocked firearm at the head or body of a bank teller or customer, ordering them to move or be quiet according to one’s direction, is a cessation of “brandishing” and the commencement of “otherwise used.”

199 F.3d 123, 127 (3d Cir.1999) (quoting United States v. LaFortune, 192 F.3d 157, 161-62 (1st Cir.1999)). Similarly, in Orr,

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Related

Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. LaFortune
192 F.3d 157 (First Circuit, 1999)
United States v. Darryl Johnson
931 F.2d 238 (Third Circuit, 1991)
United States v. Kenneth Johnson
199 F.3d 123 (Third Circuit, 1999)
United States v. Randy Orr
312 F.3d 141 (Third Circuit, 2002)
United States v. Grier
585 F.3d 138 (Third Circuit, 2009)
United States v. Tomko
562 F.3d 558 (Third Circuit, 2009)
United States v. Wise
515 F.3d 207 (Third Circuit, 2008)

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Bluebook (online)
362 F. App'x 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-miles-ca3-2010.