United States v. Terrence Roberson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 11, 2021
• Docket: 20-13190
• Status: Unpublished

Opinion

USCA11 Case: 20-13190 Date Filed: 06/11/2021 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13190 Non-Argument Calendar ________________________

D.C. Docket No. 1:20-cr-20072-CMA-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERRENCE ROBERSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(June 11, 2021)

Before JILL PRYOR, LAGOA and BRASHER, Circuit Judges.

PER CURIAM: USCA11 Case: 20-13190 Date Filed: 06/11/2021 Page: 2 of 6

Terrence Roberson pled guilty to conspiracy to commit Hobbs Act robbery

and was sentenced to 51 months’ imprisonment. On appeal, he contends that the

district court miscalculated his Sentencing Guidelines range by erroneously

applying a three-level enhancement for brandishing a dangerous weapon during the

robbery. See U.S.S.G. § 2B3.1(b)(2)(E). He does not dispute that the district court

correctly followed this Court’s binding precedent when it applied the enhancement.

Instead, he argues that our precedent is wrong. As a panel of this Court, we have

no power to depart from our squarely-controlling precedent; thus, we affirm.

I. BACKGROUND

Roberson committed a robbery in a supermarket parking lot. 1 When a truck

driver for a tobacco distributor arrived at the supermarket to deliver cigars, among

other products, Roberson and a co-conspirator approached the driver. Roberson

was unarmed but “had his hand in his jacket pocket as if he were holding a gun.”

Doc. 30 at 1. 2 Believing that Roberson had a gun, the driver, in fear for his life,

fled into the supermarket. Roberson and his co-conspirator made off with three

boxes of tobacco products that were in the truck.

1 These facts are unchallenged on appeal. They were established by Roberson’s admissions and undisputed testimony elicited at his sentencing hearing. 2 “Doc.” numbers refer to the district court’s docket entries.

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Roberson was indicted for conspiracy to commit Hobbs Act robbery (Count

One) and Hobbs Act robbery (Count Two) under 18 U.S.C. § 1951(a). He pled

guilty to the first count, and the government dismissed the second count. After the

district court accepted his plea, a probation officer prepared a presentence

investigation report (“PSI”).

The PSI assigned Roberson a total offense level of 20, which included a

three-level enhancement for brandishing a dangerous weapon during the robbery.

See U.S.S.G. § 2B3.1(b)(2)(E). Based on that total offense level and Roberson’s

criminal history category of IV, the PSI calculated his guidelines range as 51 to 63

months’ imprisonment.

Roberson objected to the three-level enhancement for brandishing a

dangerous weapon during the offense. He argued that even though he pretended to

wield a gun in his jacket pocket, the enhancement was inapplicable because he did

not in fact brandish or possess a weapon during the offense. The district court

disagreed. Relying on our caselaw, the court concluded that Roberson had

brandished a dangerous weapon within the meaning of the guideline provision.

The district court adopted the PSI’s guidelines calculation and sentenced Roberson

to 51 months’ imprisonment—the bottom of the guidelines range.

This is Roberson’s appeal.

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II. STANDARD OF REVIEW

We review de novo the district court’s interpretation and application of the

Guidelines. United States v. Tejas, 868 F.3d 1242, 1244 (11th Cir. 2017). We

review the district court’s factual findings for clear error. Id.

III. DISCUSSION

The sole issue on appeal is whether the district court erred in applying the

dangerous weapon enhancement. It did not.

Under § 2B3.1(b)(2)(E), a defendant’s offense level is increased by three

levels if he brandished or possessed a dangerous weapon during a criminal offense.

The defendant need not have possessed a dangerous weapon if he “used [an] object

in a manner that created the impression that the object was an instrument capable

of inflicting death or serious bodily injury,” as is the case when, for example, a

defendant “wrap[s] a hand in a towel during a bank robbery to create the

appearance of a gun.” U.S.S.G. § 2B3.1 cmt. n.2. The “critical” inquiry is

“whether the defendant intended the appearance of a dangerous weapon.” United

States v. Bates, 213 F.3d 1336, 1337, 1338–39 (11th Cir. 2000) (holding that the

dangerous weapon enhancement applied when the defendant “reach[ed] with his

right hand into his pants waist band area” to “simulat[e] the presence of a

weapon”).

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Roberson makes no attempt to distinguish Bates, for good reason. In Bates,

the dangerous weapon enhancement applied even though the defendant was

unarmed because the defendant’s “hand simulated possession of what appeared to

be a dangerous weapon” and the victim “perceived [the defendant] to possess a

dangerous weapon.” Id. at 1339. So too here. When Roberson and his co-

conspirator confronted the truck driver, Roberson “had his hand in his jacket

pocket as if he were holding a gun.” Doc. 30 at 1. And the driver was left with the

firm impression that Roberson wielded a gun under his jacket, so much so that he

fled into the store. Because Bates controls, the district court did not err in applying

the enhancement when calculating Roberson’s guidelines range.

Roberson resists this conclusion, arguing that we should depart from Bates’s

holding because it contravenes “the plain and unambiguous language of the

guideline[s].” Appellant’s Br. at 16; see also U.S.S.G. § 2B3.1(b)(2)(E) (providing

that the enhancement applies “if a dangerous weapon was brandished or

possessed”) (emphasis added). He further argues that the commentary to the

guideline should be ignored because it contradicts the plain language of the

guideline. The merits of his argument are of no moment. Under our prior

precedent rule, we are bound by Bates “even if convinced it is wrong.” Andrews v.

Biggers, 996 F.3d 1235, 1236 (11th Cir. 2021) (alteration adopted) (internal

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quotation marks omitted). We therefore decline Roberson’s invitation to disregard

or overturn Bates, and we affirm his sentence.

AFFIRMED.