United States v. Robert Joseph Souther

221 F.3d 626, 2000 U.S. App. LEXIS 16981, 2000 WL 992230
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 18, 2000
Docket99-4582
StatusPublished
Cited by21 cases

This text of 221 F.3d 626 (United States v. Robert Joseph Souther) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Robert Joseph Souther, 221 F.3d 626, 2000 U.S. App. LEXIS 16981, 2000 WL 992230 (4th Cir. 2000).

Opinions

OPINION

HERLONG, District Judge.

Robert Joseph Souther (“Souther”) appeals the 108-month sentence he received after pleading guilty to two counts of bank robbery in violation of 18 U.S.C.A. § 2113(a) (West Supp.2000). He claims that the district court improperly enhanced his base offense level by three levels for brandishing, displaying, or possessing a dangerous weapon pursuant to section 2B3.1(b)(2)(E) of the United States Sentencing Commission, Guidelines Manual (“Sentencing Guidelines”). Souther also claims that the district court failed to resolve a controverted fact in accordance with Rule 32 of the Federal Rules of Criminal Procedure and that the evidence did not support a finding that Souther possessed a dangerous weapon or an object that appeared to be a dangerous weapon. For the reasons below, we affirm Souther’s sentence.

I.

Souther was indicted for the two counts of bank robbery on November 2, 1998. The first robbery occurred on October 9, 1998, at a branch of Clyde Savings Bank in Skyland, North Carolina. The second robbery occurred on October 13, 1998, at a branch of Centura Bank in Arden, North Carolina. Souther pled guilty to both counts, and he was sentenced on August 4, [628]*6281999, to a term of 108 months’ imprisonment.

Souther’s sentence was based upon a three-level enhancement pursuant to section 2B3.1(b)(2)(E) of the Sentencing Guidelines for “brandishing, displaying, or possessing” a “dangerous weapon” during the course of the robberies. U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(E) (1998). In both robberies, Souther handed the bank teller a note that stated: “I have a gun. Be quiet.” Also, Souther kept his hands in his coat pockets during the majority of both robberies. It is undisputed that Souther did not actually possess a weapon or any other inanimate object that might be mistaken for a weapon. It also is undisputed that Souther did not simulate the presence of a weapon with his hands, fingers, or other object, beyond the simple placement of his hands into his coat pockets.

II.

Souther first contends that the district court erred in its interpretation of section 2B3.1(b)(2)(E) of the Sentencing Guidelines. Because the issue “turns primarily on the legal interpretation of a guideline term,” we review it de novo. See United States v. Jones, 31 F.3d 1304, 1315 (4th Cir.1994).

Section 2B3.1(b)(2)(E) provides that the base offense level for robbery should be increased by three levels “if a dangerous weapon was brandished, displayed, or possessed.” U.S.S.G. § 2B3.1(b)(2)(E). This three-level enhancement applies when the robber brandishes, displays, or possesses an object that appears to be a dangerous weapon but in fact is not a dangerous weapon. See id. § 2B3.1 application note 2 (“When an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon for the purposes of subsection (b)(2)(E).”); see also id. § 1B1.1 application note 1(d) (defining “dangerous weapon” and providing that “[wjhere an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon”).

Because it is undisputed that Souther did not possess a dangerous weapon or any inanimate object that could be perceived as a dangerous weapon, the issue before us is whether a robber’s hand

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Bluebook (online)
221 F.3d 626, 2000 U.S. App. LEXIS 16981, 2000 WL 992230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-joseph-souther-ca4-2000.