Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
5-27-2004
USA v. Wilson Precedential or Non-Precedential: Precedential
Docket No. 03-2496
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Recommended Citation "USA v. Wilson" (2004). 2004 Decisions. Paper 638. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/638
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL George S. Leone Sabrina G. Comizzoli (Argued) UNITED STATES Office of United States Attorney COURT OF APPEALS 970 Broad Street, Room 700 FOR THE THIRD CIRCUIT Newark, NJ 07102 ____________ Attorneys for Appellee ____________ No. 03-2496 ____________ OPINION OF THE COURT ____________ UNITED STATES OF AMERICA FISHER, Circuit Judge. v. Defendant Walter W. Wilson, Jr. appeals from his judgment of sentence, WALTER W. WILSON, JR., arguing that the district court erred in holding that he “otherwise used” a fake Appellant bomb during a bank robbery rather than ____________ merely “brandishing” it, thus meriting a four-point offense level enhancement On Appeal from the under U.S.S.G. § 2B3.1(b)(2). Because United States District Court Wilson placed the bomb in close proximity for the District of New Jersey to a bank teller and made explicit threats to (D.C. Criminal No. 03-cr-00068) imminently detonate the bomb if the teller District Judge: did not comply with his demands, Wilson Honorable Jerome B. Simandle went be yond mere “brandishing.” ____________ Accordingly, Wilson “otherwise used” the fake bomb for purposes of U.S.S.G. § Argued February 25, 2004 2B3.1(b)(2). We will therefore affirm the judgment of the district court. Before: RENDELL, BARRY I. Background and FISHER, Circuit Judges. On October 21, 2002, Wilson (Filed: May 27, 2004) entered the Pennsville National Bank in Elmer, New Jersey. He was carrying a Richard Coughlin backpack and a duffle bag, and had what Lori M. Koch (Argued) he later claimed was a toy gun stuffed in Office of Federal Public Defender the waistband of his trousers. The 800-840 Cooper Street, Suite 350 backpack contained a fake bomb made out Camden, NJ 08102 of a two-liter bottle, PVC pipe, duct tape, Attorneys for Appellant and a toy cellular phone as a fake triggering device. Wilson approached a teller, saying “This is not a joke, give me your money.” He moved his jacket aside Investigators identified Wilson’s to display the handle of the toy gun. fingerprints on the demand note and he Wilson further stated, “I also have a bomb was later arrested. On January 29, 2003, that can be detonated by a cell phone, you Wilson pled guilty to bank robbery, 18 have 40 seconds.” He put the backpack on U.S.C. § 2113. The parties stated in a plea the counter, approximately 18 inches in agreement that they would stipulate at front of the teller. Although the teller sentencing that Wilson’s offense involved could not recall whether the backpack was a “dangerous weapon” or “dangerous open or shut, she believed that the weapons,” triggering the specific offense backpack contained a real bomb. characteristic enhancement under U.S.S.G. § 2B3.1(b)(2). The parties reserved the Wilson handed the teller a note that right to argue whether the enhancement read (emphasis and misspellings in would be three levels for “brandishing” or original): four levels for “otherwise using.” No Alarms! A l t h o u g h t h e p r o b a ti o n o f f ic e r r e c ommended only a thr e e- le v el You scream I shoot enhancement for “brandishing,” the I have a Gun and a bomb is hookup government requested a four-level to enhancement for “otherwise using.” a phone you have 40 sec To Fill At the sentencing hearing on May This bag up 16, 2003, the district court concluded that Wilson had not merely “brandished” the with untraceable money 100$. 50$. fake bomb: “A brandishing would be 20$ carrying the bomb in a gym bag in sight of NO REd DYES! IF anybody the teller and saying: You know what that TRYS TO STOP ME is?” Rather, there were “multiple threats contained in the note that this bomb would OR Follow ME I Push Redail And be used imminently and that it would be Bank Blows UP! used against this teller.” By “placing the NObody leves the Bank For 20 min bomb device on the counter, explaining its mechanism, which is that it would be I have pepole wAtching they will detonated by phone, the common sense Be shot! that the phone detonation would occur I have Nothing To Loose! almost instantaneously, and the fact that the bomb was in direct proximity of the The teller put approximately $2,250 teller and therefore was directed at her if in the duffle bag and Wilson left to join his she failed to comply, satisfies the test.” In wife and children, who were waiting in a addition, the court held that the presence car parked down the street.
2 of the gun in Wilson’s pants made the is no doubt that the teller knew she would bomb threat more credible. be blown up by this device within seconds, and that what she saw made the threats Thus, stated the court, “[i]t’s the concrete.” The court thus concluded that equivalent of pointing a bomb at the teller” Wilson had “otherwise used” the bomb, or “the equivalent of taking the toy gun out and applied a four-level enhancement. and pointing it at the teller saying ‘I’ll pull Wilson was sentenced to fifty-one months this trigger if you don’t comply.’” The of imprisonment, three years of supervised defendant was essentially saying “‘I’ll release, restitution of $2,254, and a special detonate this bomb through the use of this cell phone if you don’t comply.’” Although the teller could not recall whether the backpack was open or shut, the court concluded that a picture of the conceded the government, the photograph crime scene showing an open backpack at question showed the contents of the bag proved that it was “possible to see inside not from the teller’s perspective, but from the bag” and that the open bag was “what the perspective of Wilson. Thus, it cannot the teller saw.” 1 The court found “[t]here be said that this particular photograph proves whether the teller saw the contents of the backpack. 1 The teller never actually testified. Recognizing this, in a post-brief Rather, the U.S. Attorney described the submission, the government included other testimony that the teller would have photographs that had been put in evidence provided had she testified. Although the before the district judge. Some of these teller could not recall whether the photographs show the backpack open from backpack was open or shut, the the teller’s apparent point of view, with government entered into evidence this opening due to an open zipper rather photographs that it said had been taken than to the cut made by the detective. The before the bomb was disturbed. After government argues that these other filing its brief in this appeal, the photographs support the district court’s government discovered that the crime conclusion that the teller saw the contents scene had in fact been disturbed. The of the backpack. For his part, Wilson backpack had been cut open by a detective objects to the district court’s use of the from the New Jersey State Police photographs to determine what the teller Arson/Bomb Unit to reveal its contents saw because the teller could not remember before at least some of the pictures were whether the backpack was open or shut. taken. Thus, the photograph relied upon We need not resolve this dispute. by the district court did not show an As discussed infra, we base our conclusion undisturbed crime scene, but instead on other undisputed evidence of record, showed the backpack with a cut made after and need not consider whether the teller the crime was completed. Moreover, saw the backpack’s contents.
3 assessment of $100. This timely appeal We begin by examining the relevant followed. guideline, U.S.S.G. § 2B3.1, which provides the base offense level for II. Discussion robbery. Of particular relevance is the The issue before the Court is spec ific offense characteristic for narrow – whether Wilson “brandished” or dangerous weapons: “otherwise used” the fake bomb in (A) If a firearm was discharged, connection with the bank robbery. increase by 7 levels; (B) if a “Brandishing” merits a three-level firearm was otherwise used, enhancement, whereas “otherwise using” increase by 6 levels; (C) if a merits four. U.S.S.G. § 2B3.1(b)(2). f ir e arm was brandished or Wilson argues that in order to conclude possessed, increase by 5 levels; that he “otherwise used” a fake bomb, the (D) if a dangerous weapon was district court was required to find that he otherwise used, increase by 4 “pointed the bomb at the victim while levels; (E) if a dangerous weapon issuing a specific threat or order.” The was brandished or possessed, government counters that Wilson made increase by 3 levels; or (F) if a specific verbal and written threats to the threat of death was made, increase teller, which along with the positioning of by 2 levels. his backpack, constituted “otherwise use” of the fake bomb. Id. § 2B3.1(b)(2) (emphasis in original). 2 The district court had subject matter It is undisputed that Wilson’s fake jurisdiction pursuant to 18 U.S.C. § 3231. bomb was a “dangerous weapon” for We have jurisdiction of this timely appeal sentencing purposes.3 Thus, we must pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Our review of the district court’s interpretation of the Sentencing 2 Wilson was sentenced on May 16, Guidelines is plenary. United States v. 2003, so we turn to the 2002 guidelines, as Thomas, 327 F.3d 253, 255 (3d Cir.) amended as of that date. See U.S.S.G. § (citing United States v. Day, 272 F.3d 216, 1B1.11(a) (unless the ex post facto clause 217 (3d Cir. 2001)), cert. denied, 124 S. would be violated, “[t]he court shall use Ct. 451 (2003). Determinations of fact are the Guidelines Manual in effect on the reviewed for clear error. Id. (citing United date that the defendant is sentenced”). States v. Carr, 25 F.3d 1194 (3d Cir. 3 1994)). In addition, we “‘give due Wilson concedes that the fake deference to the district court’s application bomb and fake gun were “dangerous of the guidelines to the facts.’” Id. weapons” for guidelines purposes. Such (quoting 18 U.S.C. § 3742(e)). concessions were proper – an object that appears to be a dangerous weapon shall be considered to be a dangerous weapon for
4 determine whether the dangerous weapon person. Accordingly, although the was “brandished” or “otherwise used.” dangerous weapon does not have to The application notes to the Sentencing be directly visible, the weapon must Guidelines provide definitions of be present. “brandished” and “otherwise used:” .... “Brandished” with reference to a “Otherwise used” with reference to dangerous weapon (including a a dangerous weapon (including a firearm) means that all or part of firearm) means that the conduct did the weapon was displayed, or the not amount to the discharge of a presence of the weapon was firearm but was more than otherwise made known to another bran dis h i n g , disp laying , o r person, in order to intimidate that possessing a firearm or other person, regardless of whether the dangerous weapon. weapon was directly visible to that U.S.S.G. § 1B1.1 applic. nn. 1(c), (f) (original italics removed). Thus, purposes of U.S.S.G. § 2B3.1(b)(2). “otherwise used” means “more than United States v. Orr, 312 F.3d 141, 143-44 brandishing, displaying, or possessing . . . (3d Cir. 2002) (discussing U.S.S.G. §§ a dangerous weapon,” but does not rise to 1B1.1 applic. n. 1(d), 2B3.1 applic. n. 2 the level of “discharge of a firearm.” Id. § (2001)). The guidelines define a 1B1.1 applic. n. 1(f) (original italics “dangerous weapon” to include, among removed). Although the definition of other things: “otherwise used” is not particularly an object that is not an instrument helpful, we understand it to require us to capable of inflicting death or examine the nexus between the dangerous serious bodily injury but (I) closely weapon and the relevant conduct, and resembles such an instrument; or determine whether the conduct amounts to (II) the defendant used the object in more than mere “brandishing.” Conduct a manner that created the that is “more” than mere “brandishing” impression that the object was such need not rise to actual use or attempted use an instrument (e.g. a defendant of the weapon to inflict harm.4 wrapped a hand in a towel during a bank robbery to create the 4 appearance of a gun). For firearms, the guideline U.S.S.G. § 1B1.1 applic. n. 1(d) (original recognizes further gradations of conduct italics removed); see also id. § 2B3.1 than it does for the broader category of applic. n. 2. Here, the backpack dangerous weapons. Discharge of a containing the fake bomb was used in a firearm merits a larger enhancement than manner to create the impression that it was “otherwise using.” Compare U.S.S.G. § a real bomb. 2B3.1(b)(2)(A) (7 levels if firearm is
5 In the first of two identically named II”). In one of the robberies, one of but unrelated Johnson cases, we construed several defendants wielding baseball bats the meaning of “otherwise used” in the threatened to hit an employee with the bat context of U.S.S.G. § 2A2.2(b), the unless she put a phone down, lest he break guideline for aggravated assault. United her neck or “knock her damn head off.” States v. Johnson, 931 F.2d 238 (3d Cir. Id. at 124-25, 127. Johnson and others 1991) (“Johnson I”). The defendant had used sledgehammers to break open jewelry pointed a gun at the victim’s head from a cases. We concluded that Johnson would distance of one or two feet, ordered her not be imputed with the others’ conduct and to start her car or he would “blow [her] that a four-level enhancement was head off,” and demanded her money. Id. warranted for “otherwise using.” Id. at at 240 (alteration in original). Johnson 127-28. “Courts of Appeals have argued that his mere threat meant that he generally distinguished between the had merely brandished the gun. We general pointing or waving about of a disagreed. Whereas “brandish” in the weapon, which amounts to ‘brandishing,’ context of the guidelines “denot[ed] a and the pointing of a weapon at a specific generalized rather than a specific threat,” victim or group of victims to force them to we concluded that where a defendant comply with the robber’s demands.” Id. at “actually leveled the gun at the head of the 126. According to those courts, victim at close range and verbalized a “‘brandishing’ constitutes an implicit threat to discharge the weapon, the threat that force might be used, while a conduct is properly classified as ‘otherwise weapon is ‘otherwise used’ when the using’ a firearm.” Id. threat becomes more explicit.” Id. (citing cases). In the second Johnson case, the defendant and his cohorts robbed several Thus, “[p]ointing a weapon at a jewelry stores. United States v. Johnson, specific person or group of people, in a 199 F.3d 123 (3d Cir. 1999) (“Johnson manner that is explicitly threatening, is sufficient to make out ‘otherwise use’ of that weapon.” Id. at 127. This was “true discharged), with id. § 2B3.1(b)(2)(B) (6 when any dangerous weapon is employed: levels if firearm is “otherwise used”). For It need not be a firearm.” Id. (emphasis in dangerous weapons, any conduct beyond original). Moreover, we noted that verbal mere “brandishing” constitutes “otherwise threats were not required – non-verbal using.” See id. § 2B3.1(b)(2)(D) (4 levels conduct could also suffice. Id. (citing if dangerous weapon is “otherwise used”). United States v. Nguyen, 190 F.3d 656 Thus, it does not matter if a defendant (5th Cir. 1999)).5 Thus, Johnson had uses, attempts to use, or engages in some other conduct relating to a dangerous 5 weapon, so long as it amounts to more In Johnson II, we cited with than mere “brandishing.” approval to the First Circuit’s opinion in
6 “otherwise used” dangerous weapons in conduct in using the sledgehammer to two ways: through a co-defendant’s use of coerce and threaten others by smashing the baseball bat, and through his own open jewelry cases while a co-defendant threatened an employee with the baseball bat. Id. at 127-28. United States v. LaFortune, 192 F.3d 157 We confronted whether conduct (1st Cir. 1999). See Johnson II, 199 F.3d without an explicit verbal threat could be at 127. In LaFortune, the defendant had “otherwise using” in United States v. Orr, pointed a cocked gun at the head of one 312 F.3d 141 (3d Cir. 2002), where the teller, holding the gun in his hand while defendant robbed a credit union carrying shoving a customer to the floor and what appeared to be a handgun but was in ordering her to get down and not to talk, fact a pellet gun. Orr held the gun to the and aimed the weapon directly at another assistant manager’s head and directed her bank employee while giving orders. 192 to empty a cash box into a garbage bag. F.3d at 161. The Court concluded that We noted that in Johnson I and Johnson II, LaFortune had “otherwise used” the the defendants had “otherwise used” weapon: dangerous weapons by (1) pointing or a person may “brandish” a weapon raising a weapon at a vic tim ; to “advise” those concerned that he (2) threatening to harm or kill; and (3) possesses the general ability to do making demands for money or other violence, and that violence is actions. Id. at 144-45 (citing Johnson II, imm inently and immediately 199 F.3d 123; Johnson I, 931 F.2d at 240). available. A general, or even In Orr, a demand for money was made, but pompous, showing of weapons, the threat to shoot was made only through involving what one would consider the defendant’s conduct. We concluded an arrogant demonstration of their that “[n]either the guidelines nor the presence, cons titutes th e caselaw requires infliction of the violent generalized warning that these physical contact Orr suggests or a weapons may be, in the future, verbalized threat to harm the victim in used and not merely brandished. order to constitute ‘otherwise used.’” Id. Altering this general display of at 145. weaponry by specifically leveling There is little case law on when a a cocked firearm at the head or bomb or incendiary device, fake or real, body of a bank teller or customer, has been “otherwise used.” However, this ordering them to move or be quiet issue arose in the Eleventh Circuit in according to one’s direction, is a United States v. Miller, 206 F.3d 1051 cessation of “brandishing” and the (11th Cir. 2000), where the defendant commencement of “otherw ise approached a bank teller, displayed what used.” looked like a bomb, lit the fuse, and asked Id. at 161-62 (emphasis in original).
7 her if she knew what “it” was. He phone, gave the teller 40 seconds to hand demanded money without dye packs. The over untraceable money without red dye, Court concluded that Miller did not just and indicated that if anybody tried to stop display or brandish the fake bomb – he him, he would push redial and blow up the actually lit the fuse while explicitly bank, which would necessarily include threatening the teller. Id. at 1054. The blowing up the teller. Wilson’s actions Court held that “lighting the fuse is like were also explicitly threatening. He the cocking of a handgun,” making the placed the bomb in close proximity to the dangerous weapon “otherwise used.” Id.; teller, 18 inches away. 7 Indeed, the teller cf. United States v. Waskom, 179 F.3d believed that the backpack contained a real 303, 314-15 (5th Cir. 1999) (construction bomb. Wilson also displayed what and detonation of test bombs in connection appeared to be a gun stuffed in the with conspiracy to commit robbery, with waistband of his trousers.8 Accordingly, plans to detonate additional bombs as Wilson “otherwise used” the fake bomb. diversion for upcoming robbery, showed bombs were “otherwise used”). 6 Turning to the facts at hand, we conclude that Wilson “otherwise used” the 7 We do not suggest that a bomb fake bomb. He made explicit verbal and must be close to a victim for it to be written threats that he would detonate the “otherwise used.” Nor do we opine on bomb if the teller did not comply with his how or whether a bomb’s distance might demands. He said “This is not a joke, give affect the calculus. Limiting ourselves to me your money,” and demanded, both the facts of this case – the proximity of the verbally and in writing, that the teller give fake bomb to the teller, W ilson’s explicit him money. He also said that he had “a verbal and written statements, and his bomb that can be detonated by a cell other actions – compels the conclusion that phone, you have 40 seconds.” His demand the fake bomb was “otherwise used.” Cf. note said his bomb was hooked up to a United States v. Yelverton, 197 F.3d 531, 533-34 (D.C. Cir. 1999) (construing U.S.S.G. § 2A4.1(b)(3) (1995) and 6 Other cases have involved fake concluding that kidnapper “otherwise bombs employed in bank robberies in used” gun when, to induce payment of connection with explicit threats. See, e.g., ransom, he showed mother a picture of her United States v. Rodriguez, 301 F.3d 666, child with a gun pointed to his head). 667 (6th Cir. 2002); United States v. Hart, 8 226 F.3d 602, 603-04 (7th Cir. 2000). Although the conduct with the gun Neither of these cases addressed whether was not directly tied to the fake bomb, we the fake bombs were “otherwise used,” agree with the district court that the gun instead discussing whether they were made Wilson’s threats regarding the fake dangerous weapons in the first place. bomb more credible.
8 Wilson attempts to distinguish Miller on its facts because Miller had gone further, lighting the fuse of his fake bomb. “brandishing” – can not constitute In contrast, says Wilson, he never took the “otherwise using.” Such a conclusion runs bomb out of the backpack, waved or counter to the bulk of authority and our pointed the backpack at the teller, moved prior cases. As stated by the D.C. Circuit: the backpack, or reached for the detonator. Virtually all of the circuits to Wilson’s argument misses the mark. Such address the question have held that additional steps are no doubt sufficient to where a dangerous weapon is show “otherwise use.” They are not, pointed at a person and some however, necessary. Although Miller further verbal threat or order noted that “lighting the fuse is like the accompanies the pointing of the cocking of a handgun,” the gun need not weapon to facilitate commission of be “cocked” – the mere pointing of a the und erlying crim e, an weapon, in connection with explicit enhancement for the use of the threats, is sufficient. weapon is justified. Here, the fake bomb was essentially Yelverton, 197 F.3d at 534 (citing cases). “pointed” at the victim by its placement Cases to the contrary ignore the fact within 18 inches of her body. Wilson t h a t a n y c o n d u ct b eyond me re made explicit verbal and written threats in “brandishing” is “otherwise using.” In connection with the fake bomb. The United States v. Matthews, 20 F.3d 538 conduct was undertaken to heighten the (2d Cir. 1994), the defendants ordered teller’s fear in order to facilitate the bank robbery victims to lie on the floor, robbery. Yelverton, 197 F.3d at 534 (“the pointed their weapons at them, and key consideration is whether a gun (or threatened to kill anyone who disobeyed. other weapon) was pointed at a specific The Second Circuit concluded that the person in an effort to create fear so as to addition of an explicit verbal threat did not facilitate compliance with a demand, and constitute additional use of the weapon, ultimately to facilitate the commission of and therefore was mere “brandishing.” Id. the crime”). Wilson’s conduct is at 554; see also United States v. Moerman, analogous to pointing a gun at the teller’s 233 F.3d 379, 381 (6th Cir. 2000) head and threatening to shoot lest the teller (pointing of gun combined with verbal fail to comply. Accordingly, Wilson’s use demand not “otherwise using”); United of the fake bomb was like the pointing of States v. Gonzales, 40 F.3d 735, 740 (5th a handgun, making it “otherwise used.” 9 Cir. 1994) (same). We rejected Matthews in Johnson II, where we cited to Matthews with a “But 9 Wilson would have us conclude see.” See Johnson II, 199 F.3d at 126-27 that the evidence of record – which clearly (following other circuits and citing e v i d e n c e s f a r m o r e th a n m e r e Matthews as contrary authority). Indeed,
9 Defendant also cites to United there must be a nexus between the States v. Kushmaul, 147 F.3d 498 (6th Cir. dangerous weapon and the conduct alleged 1998), where the defendant used one hand to constitute “otherwise use” of that to force a victim to the floor during a bank weapon. In Kushmaul, that nexus was robbery. In Kushmaul’s other hand was a lacking. The weapon was not – through baseball bat, which Kushmaul never words or actions – specifically used in raised. He told the victim, among other connection with a demand or threat. In things, “Be quiet and I won’t hurt you.” contrast, Wilson, through his words and Id. at 499. The Court concluded that “the actions, made specific use of and reference a s s a u l t w a s c o m m i t t e d e n t i re ly to the fake bomb in connection with his independently of the bat.” Id. at 501. demand and threat. 10 Although the defendant verba lly Finally, Wilson argues that the threatened the woman, he did so “without district court clearly erred in concluding reference” to the bat. Id. Accordingly, the that the teller saw the contents of the assault and threat were not relevant to an backpack containing the fake bomb. This assessment of how the defendant used the argument is in theory enhanced by the weapon. Id. government’s concession on appeal that Not only is Kushmaul the photograph of the open backpack cited distinguishable on its facts, but its result by the district court turned out to show a supports our conclusion. We read backpack that had been cut open after the Kushmaul to stand for the proposition that robbery. But whether or not the teller saw the backpack’s contents is irrelevant.
the holding of Matthews is irreconcilable 10 with Johnson II, where we held that Wilson also quotes Kushmaul for “[p]ointing a weapon at a specific person the proposition that “‘[o]ther use in the or group of people, in a manner that is non-firearm context . . . necessarily explicitly threatening, is sufficient to make includes the most extreme thing one can out ‘otherwise use’ of that weapon.” Id. at do with a weapon, that is, using it to 127. Other Courts of Appeals have held actually injure, or attempt to injure, a similarly. See United States v. Cover, 199 victim.’” Wilson Br. at 13 (quoting F.3d 1270, 1279 (11th Cir. 2000) (treating Kushmaul, 147 F.3d at 502). This M a tt he w s as contrary au th or ity) ; proposition does not help Wilson. LaFortune, 192 F.3d at 161 (rejecting Although “the most extreme thing” can Matthews); Yelverton, 197 F.3d at 534 n.2 constitute “otherwise using,” lesser (treating Matthews and Gonzales as conduct may satisfy “otherwise using” as contrary authority); United States v. well. See n. 4, supra. In other words, Wooden, 169 F.3d 674, 677 n.5 (11th Cir. Wilson did not have to try to blow up the 1 9 9 9 ) ( r e je c t in g G o n z a l e s a n d teller in order to “otherwise use” his fake distinguishing Matthews). bomb.
10 Wilson concedes that the fake bomb was a III. dangerous weapon and it is undisputed that By placing a fake bomb close to a the teller believed the bomb to be real. bank teller who believed it to be real, and Indeed, the fake bomb was used in a by making explicit verbal and written manner to suggest that it was real, making threats to imminently detonate the bomb if it a dangerous weapon for guidelines the teller did not comply with his demands, purposes. See U.S.S.G. § 1B1.1 applic. n. Wilson went beyond mere “brandishing.” 1(d) (object used “in a manner that created His conduct is analogous to pointing a gun the impression that the object was such an at a teller’s head, making demands, and instrument” is dangerous weapon). One threatening to shoot unless the teller need not see a fake bomb in order for it to complies. We therefore conclude that constitute a dangerous weapon. See Wilson “otherwise used” the fake bomb Rodriguez, 301 F.3d at 669 (styrofoam for sentencing purposes and that the four- sandwich box put forth as bomb properly level enhancement was correct. found to be “dangerous weapon”); Hart, 226 F.3d at 609 (lunch box and shoe box Accordingly, the judgment of the put forth as bomb properly found to be district court will be AFFIRMED. “dangerous weapons”). As undisputed evidence of record compels the conclusion that Wilson “otherwise used” the fake bomb, it does not matter whether or not the teller saw the contents of the backpack.11
11 The government notes that other photographs entered into evidence before the district court show an unzippered backpack that could have been viewed from the teller’s perspective, thus arguing that the district court did not clearly err in concluding that the teller saw the District Court’s judgment on grounds other backpack’s contents. We need not decide than those considered by the District Court whether the district court clearly erred itself.” (emphasis in original)); see also because the undisputed evidence of record United States v. Garnett, 243 F.3d 824, compels the conclusion that the fake bomb 830 (4th Cir. 2001) (“we can affirm [a] was “otherwise used.” Even if the district sentence on the basis of any conduct [in court erred, it is well-settled that we may the record] that independently and properly affirm its judgment on different grounds. should result in an increase in the offense See United States v. Miller, 224 F.3d 247, level” (second alteration in original, 248 n.1 (3d Cir. 2000) (“We may affirm a quotation marks removed)).