                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JUN 20 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 00-3179
 v.
                                                  (99-CR-10111-01-JTM)
                                                    (District of Kansas)
 RODNEY K. THURMAN,

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
JONES, Senior Circuit Judge. **


      Rodney K. Thurman (“Thurman”) and Sharolyn J. Goudie were jointly

charged in an one-count indictment filed on August 25, 1999, in the United

States District Court for the District of Kansas with taking by force and violence

or intimidation approximately $60,000.00 from employees of the United Missouri

Bank in Wichita, Kansas, the deposits of which were insured by the Federal


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.
      **
        Honorable Nathaniel R. Jones, Senior Circuit Judge, U.S. Court of
Appeals, Sixth Circuit, sitting by designation.
Deposit Insurance Corporation, in violation of 18 U.S.C. §§ 2113 (a) and 2. On

December 29, 1999, Thurman, who was represented by a federal public defender,

filed with the district court a petition to enter a plea of guilty and on the same

date he entered into a plea agreement with the government. The plea agreement

made no reference to a possible increase in Thurman’s base offense level by 3

levels for brandishing or possessing a dangerous weapon during the course of his

robbery of the bank, as mandated by the United States Sentencing Guidelines

(“U.S.S.G.”) §2B3.1(b)(2)(E). The agreement also contained a proviso that it

was “agreed and understood that this plea agreement is the only agreement

between the United States and the defendant concerning his plea of guilty in the

above-styled action, and there are no other deals, bargains, agreements or

understandings which modify or alter this agreement.” The agreement was

signed by Thurman and his attorney and by representatives of the United States

Attorney’s office. The matter was then referred to the Probation Office for a Pre-

Sentence Report.

      In the Pre-Sentence Report the Probation Department recommended that

Thurman’s base offense level be increased under U.S.S.G. § 2B3.1(b)(2)(E) by 3

levels because during the robbery “a dangerous weapon, or what appeared to be a

dangerous weapon, was displayed or possessed.” Without a 3 level increase

under U.S.S.G. § 2B3.1(b)(2)(E), Thurman’s total offense level would be 21;


                                          -2-
with the recommended 3 level increase, his total offense level would be 24.

Thurman’s criminal history category was VI. The guideline sentencing range for

a person with an offense level of 21 and a criminal history category of VI is 77 to

96 months imprisonment. However, if Thurman’s offense level be increased by 3

levels to 24, then, coupled with his criminal history category of VI, the guideline

sentencing range would be from 100 to 125 months imprisonment. 1

      Thurman’s counsel filed objections to the Pre-Sentence Report, alleging

that the knife “displayed or possessed” during the robbery did not meet the

requirements of U.S.S.G. §2B3.1(b)(2)(E). Although the knife in question was

never recovered, in her objections counsel stated that the “knife” consisted of

two dinner knives taped together at the handles. It would appear that the knife

itself was never pointed at any of the bank employees, but it was used by

Thurman who, after demanding money from the bank teller, jumped over the

counter and pried open a cash drawer with the knife. Counsel’s basic objection

was that the dinner knife was not a dangerous weapon. Counsel also objected on

the ground that in the negotiations between defense counsel and the government

attorney leading up to the plea agreement, the government attorneys promised not

to seek any enhancement of Thurman’s offense level under U.S.S.G.


      1
        The Pre-Sentence Report states that “the 1998 edition of the United States
Sentencing Commission Guidelines Manual was used in calculating the offense
level in this case.”

                                         -3-
§2B3.1(b)(2)(E). The Probation Department filed a response to Thurman’s

objections to the report and stated therein that it was the “opinion of the

probation office that a dinner knife is capable of inflicting death or serious bodily

injury.”

      At sentencing, the district court heard defense counsel’s objections to the

Pre-Sentence Report. At the outset of the hearing, in response to query by the

court, defense counsel stated that the “only objection” to the Pre-Sentence Report

was the recommended 3 level enhancement made under U.S.S.G.§2B3.1(b)(2)(E).

It is true that counsel had filed objections to the recommendation of the

Probation Department that Thurman’s base offense level be raised 3 levels on

two grounds: (1) the dinner knife here involved was not a “dangerous weapon”

within the Sentencing Guidelines and (2) the United States Attorney had broken

his pre-plea-agreement promise not to ask for enhancement. However, at the

sentencing hearing held by the district court, defense counsel urged only the first

ground, and never mentioned the second. In other words, in the district court

counsel did not in any manner pursue the matter of “broken promises” by the

government. After hearing, the district court increased Thurman’s offense level

by 3 as mandated by U.S.S.G. §2B3.1(b)(2)(E) and sentenced Thurman to 125

months imprisonment.

      On appeal counsel urges two grounds for reversal: (1) the dinner knife


                                         -4-
possessed here does not meet the requirement of U.S.S.G. §2B3.1(b)(2)(E) and

(2) the government promised not to seek any such enhancement. We need not

consider the latter argument since it was not raised in the district court and

cannot now be here resurrected. So, we need only decide whether the dinner

knife, admittedly possessed and used by Thurman during the robbery, mandates a

3 level enhancement under U.S.S.G. §2B3.1(b)(2)(E).

      As indicated, the district court overruled Thurman’s objections to the

recommendation by the Probation Department that under U.S.S.G.

§2B3.1(b)(2)(E) Thurman’s offense level be increased by 3 levels because during

the robbery he possessed a dangerous weapon. U.S.S.G. §2B3.1(b)(2)(E) reads

as follows:

      §2B3.1       Robbery
      ....
      (b) Specific Offense Characteristics
            ....
            (2)    (A)If a firearm was discharged, increase by 7
                   levels; (b) if a firearm was otherwise used,
                   increase by 6 levels; (C) if a firearm was
                   brandished, displayed or possessed, increase by 5
                   levels; (D) if a dangerous weapon was otherwise
                   used, increased by 4 levels; (E) if a dangerous
                   weapon was brandished, displayed or possessed,
                   increase by 3 levels; or (F) if a threat of death as
                   made, increase by 2 levels.

      In this same general connection, U.S.S.G. §1B1.1, note 1(d) provides as

follows:


                                         -5-
      (d)    “Dangerous weapon” means an instrument capable of
             inflicting death or serious bodily injury. Where an
             object that appeared to be a dangerous weapon was
             brandished, displayed, or possessed, treat the object as a
             dangerous weapon.

      In overruling Thurman’s objection to the Probation Departments’s

recommendation that Thurman’s offense level be raised 3 levels under U.S.S.G.

§2B3.1(b)(2)(E), the district court concluded that the dinner knife which

Thurman admittedly possessed and used in the robbery to pry open a cash drawer

was of a type that “can be used to inflict serious bodily injury or death.” Later,

in its order, the district court opined that a dinner knife of the type possessed by

Thurman if “jabbed in the eye, it would still result in serious bodily injury to

someone without a whole lot of exertion on the part of the user.”

      As indicated, on appeal Thurman argues that the dinner knife (or two

dinner knives with the handles taped together) is not a dangerous weapon. We

agree with the district court’s analysis of this matter. Certainly a dinner knife

jabbed into an eye of another could inflict “serious bodily injury.” The fact that

the knife was not so used in the instant case or that Thurman had no intention to

so do is immaterial. See United States v. Houck, 1994 U.S. App. LEXIS 16512 at

*4 (10th Cir. June 11, 1994) where we said that “the fact that Mr. Houck may

have had no intention of using the knife as a weapon is immaterial.” In Houck, a

case involving an enhancement of an offense level under U.S.S.G.


                                          -6-
§2B3.1(b)(2)(E), we spoke as follows:

       The Guidelines are undoubtedly predicated upon the theory that a
       sentence should be enhanced if the defendant committed the crime
       while possessing a dangerous weapon. In short, it is an effort to
       discourage those persons who commit bank robberies from carrying
       a weapon. The plain language of the Guidelines requires only
       possession of a dangerous weapon during the crime.

Id. at *4.

       Counsel’s mild suggestion that to give the guidelines the interpretation

given by the district court would render the guideline “unconstitutionally vague”

need not be considered by us since it was never raised in the district court.

Suffice it to say we are not persuaded by counsel’s suggestion that the guideline

here involved is “vague.” See United States v. Negri, 1999 U.S. App. LEXIS

5038 at *15 (10th Cir. Mar. 23, 1999).

       Judgment affirmed.

                                               Entered for the Court



                                               Robert H. McWilliams
                                               Senior Circuit Judge




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