United States v. Thomas George

• Court: Court of Appeals for the Third Circuit
• Decided: September 9, 2024
• Docket: 22-2391
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-2391 _______________

UNITED STATES OF AMERICA

v.

THOMAS GEORGE, Appellant _______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:19-cr-00220-001) Chief U.S. District Judge: Honorable Mark R. Hornak _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on June 11, 2024

Before: KRAUSE, BIBAS, and MATEY, Circuit Judges

(Filed: September 9, 2024) _______________

OPINION * _______________ BIBAS, Circuit Judge.

Thomas George robbed a bank. He pleaded guilty to armed bank robbery under 18

U.S.C. § 2113(d). The government argued that he had used a real pistol. George insisted

that it was a broken BB gun. The District Court found that the government had not met its

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. burden to prove that the gun was real, so it did not enhance his sentence six levels for using

a firearm. U.S.S.G. § 2B3.1(b)(2)(B). But it did add a four-level enhancement for using a

“dangerous weapon.” § 2B3.1(b)(2)(D).

George appeals, arguing that a broken BB gun is not a “dangerous weapon.” We review

the District Court’s reading of the Guideline de novo. United States v. Banks, 55 F.4th 246,

255 n.29 (3d Cir. 2022). Because George is still on supervised release and could get a credit

against his term of supervised release if he prevails, this case is not moot. United States v.

Prophet, 989 F.3d 231, 235–36 (3d Cir. 2021).

We recently considered and rejected the same argument in United States v. Chandler,

104 F.4th 445, 457 (3d Cir. 2024). Chandler is binding precedent and controls this case. †

We will thus affirm.

† Judges Bibas and Matey still think Chandler was mistaken. Id. at 461 (Bibas, J., dis- senting); No. 22-1786, 2024 WL 3894339, at *1, *2 (Aug. 22, 2024) (Bibas & Matey, JJ., dissenting from denial of reh’g en banc). 2