                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-1995

USA v Alonzo Harris
Precedential or Non-Precedential:

Docket 93-3632




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                   N0. 93-3632


             UNITED STATES OF AMERICA

                        v.

                ALONZO L. HARRIS
                 a/k/a "Letter"

                         Alonzo L. Harris,
                         Appellant



On Appeal From the United States District Court
   For the Western District of Pennsylvania
      (D.C. Crim. Action No. 93-cr-00123)


               Argued June 23, 1994

BEFORE:    STAPLETON and GREENBERG, Circuit Judges, and
           FARNAN,* District Judge

       (Opinion Filed January 10, 1995)




                 Thomas S. White
                 Federal Public Defender
                 W. Penn Hackney, First Asst.
                 Federal Public Defender
                 Karen Sirianni Gerlach (Argued)
                 Asst. Federal Public Defender
                 415 Convention Tower
                 960 Penn Avenue
                 Pittsburgh, PA 15222
                 Attorneys for Appellant
                 Alonzo L. Harris
* Honorable Joseph J. Farnan, Jr., United States District Judge
for the District of Delaware, sitting by designation.
                         Frederick W. Thieman
                         United States Attorney
                         Paul J. Brysh (Argued)
                         Assistant U.S. Attorney
                         Bonnie R. Schlueter
                         Office of U.S. Attorney
                         633 U.S. Post Office & Courthouse
                         Pittsburgh, PA 15219
                         Attorneys for Appellee




                      OPINION OF THE COURT




STAPLETON, Circuit Judge:


          Alonzo Harris entered a conditional guilty plea to each

of five counts charging him with armed bank robbery.    His appeal

from his conviction presents five issues:    whether the court

erred (1) in refusing to suppress a series of inculpatory

statements given by Harris to various law enforcement personnel;

(2) in declining to allow Harris to withdraw his plea on the eve

of sentencing; (3) in failing to provide a sufficient explanation
for its decision to raise Harris' criminal history level from

category I to category VI pursuant to U.S.S.G. § 4A1.3; (4) in

adding four points to Harris' offense level because the mace the

district court found he had used on two tellers during one of the

robberies was a "dangerous weapon" within the meaning of U.S.S.G.

§ 2B3.1(b)(2)(D); and (5) by enhancing Harris' offense level an

additional two points because, as a result of being "maced," the

tellers sustained "bodily injuries" within the meaning of

U.S.S.G. § 2B3.1(b)(3)(A).   We will remand for resentencing.
                                  I.

             On May 7, 1993, the Pittsburgh police obtained an

arrest warrant for Harris in connection with a shooting at the

Hampton Inn in the Oakland section of the city.     Harris

voluntarily surrendered the next day and was taken into custody.

During the remainder of that day and the next, Harris provided

the authorities with extensive tape recorded and written

statements detailing his role in five bank robberies which

occurred in 1992.    Prior to the making of these statements, the

police had not suspected him of committing any of these

robberies.

             Harris first described the robbery of the Morningside

Branch of the Laurel Savings Association.     According to Harris'

statement, he drove to the bank in a van with a friend, Charlie

Brown.    As Harris entered the bank, he carried a pellet gun and a

can of mace.    According to Harris, he took money from two tellers

and, as he fled, attempted to spray mace at one of them to

prevent her from seeing the direction in which he fled.

             Harris next described an October 23, 1992, robbery of

the Fidelity Savings Association on East Ohio Street in

Pittsburgh.    Brown carried a pellet gun into the bank and took

money from a teller, while Harris picked money out of a cash

drawer.

             On the day after being taken into custody, Harris

talked about the other three robberies at issue here.     First, he

described the July 30, 1992, robbery of the Allegheny Valley Bank
in Blawnox, during which he carried a toy gun.    Next, Harris

spoke of the June 29, 1992, robbery of the Laurel Savings

Association in Etna.    On this occasion, Harris carried a can of

mace and Brown carried a gun.    After a teller gave them the money

in her cash drawer, Harris sprayed mace in the air.    Finally,

Harris described the June 15, 1992, robbery of the Integra Bank

in New Kensington.    Harris and a man named "Vernor" were wearing

ski masks and had one gun between them.

            After Harris made these initial statements, the FBI was

contacted.    On May 11, 1993, FBI agents obtained further

statements from Harris regarding his role in several other

crimes.

            After being indicted for the robberies that occurred in

1992, Harris filed a motion to suppress the statements he had

given.    Following an evidentiary hearing, the district court

denied Harris' motion.    Harris thereafter entered conditional

pleas of guilty to the five counts of the indictment charging

armed bank robbery and thereby preserved the suppression issue

for appellate review.

            On November 30, 1993, after the presentence report had

been prepared and Harris' sentencing had been set for December 3,

1993, Harris filed a motion to withdraw his guilty pleas.    At the

hearing originally scheduled as a sentencing hearing, the

district court denied this motion, heard argument on several

sentencing issues, and made tentative findings with respect to

those issues.    Counsel was given permission to file objections to
the tentative findings by December 6, 1993, and sentencing was

continued until that date.

           Harris was ultimately assigned a total offense level of

32, a criminal history category of VI, and a guideline sentencing

range of 210-262 months.     He was sentenced to concurrent 21-year

terms of imprisonment (252 months); five years of supervised

release; payment of restitution to the victim banks in the sum of

$25,783; and a special assessment of $225.



                                 II.

           Harris insists that the statements he sought to

suppress were coerced.   The district court found that they were

not.   We review the district court's finding of historic fact for

clear error; our review of its ultimate conclusion regarding the

absence of coercion is plenary.     Miller v. Fenton, 474 U.S. 104,

115-17 (1985); United States v. Walton, 10 F.3d 1024, 1027 (3d

Cir. 1993).

           In support of his contention that his "will was

overborne" and that the waiver of his constitutional rights was

not "the product of a rational intellect and a free will," App.

97, Harris testified that he was intimidated by the fact that his

legs were shackled, the fact that he was not free to leave the

room in which he was questioned, and the fact that the officers

with him in the room were wearing guns.    He also testified that

he had consumed forty ounces of "Old English" before he

surrendered himself and that the effects of this consumption had

not dissipated when he decided to confess.
            The district court found that Harris had been advised

of his constitutional rights on at least three occasions and that

he had "voluntarily and understandingly" waived those rights.

App. 149.    It noted that the audio tapes established that Harris

was "calm and rational" and "had no fear in his voice."    Id.    The

court further noted that Harris had voluntarily surrendered and,

as evidenced by Harris' own statements on the tape, he had been

treated well by both the Pittsburgh police and the FBI.     Finally,

the court found that there was "no evidence" of threats, promises

or pressures of any kind and "no credible evidence" that Harris

was under the influence of alcohol.     App. 149, 150.

            There is ample evidence to support the district court's

findings regarding the circumstances under which Harris'

statements were given and, based on these findings, we conclude

that Harris waived his constitutional rights voluntarily and with

an understanding of the consequences of doing so.



                                III.

            At the hearing on his motion to withdraw his guilty

pleas, Harris testified that "it was fear that drove" him to

plead guilty and that he wanted to withdraw those pleas because

he was "truly innocent."    App. 193.   However, he did not further

explain the "fear" that had allegedly coerced the pleas, and he

offered no evidence tending to show that the detailed accounts of

the bank robberies in his statements were untrue.     The district

court declined to permit withdrawal.     We will review its ruling
under an abuse of discretion standard.    United States v. Huff,

873 F.2d 709, 712 (3d Cir. 1989).

            Quoting from United States v. Jones, 979 F.2d 317, 318

(3d Cir. 1992), the district court explained that a "defendant

must . . . not only reassert [his] innocence, but give sufficient

reasons to explain why contradictory positions were taken before

the district court and why permission should be given to withdraw

the guilty plea."   App. 200.   The court concluded that Harris had

failed to explain his earlier statements and that, accordingly,

his conclusory assertion of innocence was not credible.     It

further concluded that the reason Harris wanted to change his

pleas was that he "had a change of heart after reading the

presentence report and contemplating the possible sentence."

App. 200.    Citing United States v. Huff, 873 F.2d 709, 712 (3d

Cir. 1989), the court concluded that this reason was inadequate

to justify withdrawal.   Finally, the district court noted that,

under Third Circuit jurisprudence, withdrawal may be denied in

circumstances like those before it even if no prejudice to the

government is shown.   See United States v. Martinez, 785 F.2d 111

(3d Cir. 1986).1
1
.   In Martinez, we observed:

                 In evaluating a motion under Rule 32(d),
            we have looked primarily to three factors:
            "(1) whether the defendant asserts his
            innocence; (2) whether the government would
            be prejudiced by withdrawal; and (3) the
            strength of the defendant's reasons for
            moving to withdraw." [United States v.
            Trott, 779 F.2d 912, 915 (3d Cir. 1985).]

                                * * * *
          We can find no fault with the district court's

analysis, and its decision to deny the permission sought was well

within the bounds of its discretion.



                               IV.

          Having concluded that Harris' conviction must stand, we

turn to the more troublesome sentencing issues that he raises.

The first concerns the district court's decision to raise his

criminal history level from category I.

          U.S.S.G. § 4A1.3 provides in relevant part:
               If reliable information indicates that
          the criminal history category does not
          adequately reflect the seriousness of the
(..continued)

          . . . Martinez urges us to adopt the position
          of a minority of the courts of appeals that
          absent any showing of prejudice to the
          government, withdrawal should be freely
          granted. See generally United States v.
          Thompson, 680 F.2d 1145, 1150-51 (7th Cir.),
          cert. denied, 459 U.S. 1089, 103 S. Ct. 573,
          74 L. Ed. 2d 934 (1982). We are constrained,
          however, to reject this position as contrary
          to the 1983 amendments to Rule 32(d). The
          Advisory Committee Notes to the 1983
          amendments state that amended Rule 32(d)
          embodies the approach of United States v.
          Saft, 448 F.2d 1073 (2d Cir. 1977). Under
          that approach, "[t]he Government is not
          required to show prejudice when a defendant
          has shown no sufficient grounds for
          permitting withdrawal of a plea." Id. at
          1083. Thus, even assuming that the
          government has failed to show prejudice, we
          must affirm the district court's decision
          because Martinez has failed to demonstrate
          sufficient grounds for withdrawing his plea.

785 F.2d at 114, 115-16.
          defendant's past criminal conduct or the
          likelihood that the defendant will commit
          other crimes, the court may consider imposing
          a sentence departing from the otherwise
          applicable guideline range. Such information
          may include, but is not limited to,
          information concerning: . . . (e) prior
          similar adult criminal conduct not resulting
          in a criminal conviction.

               A departure under this provision is
          warranted when the criminal history category
          significantly under-represents the
          seriousness of the defendant's criminal
          history or the likelihood that the defendant
          will commit further crimes.

                             * * * *

               In considering a departure under this
          provision, the Commission intends that the
          court use, as a reference, the guideline
          range for a defendant with a higher or lower
          criminal history category, as applicable.
          For example, if the court concludes that the
          defendant's criminal history category of III
          significantly under-represents the
          seriousness of the defendant's criminal
          history, and that the seriousness of the
          defendant's criminal history most closely
          resembles that of most defendants with
          Criminal History Category IV, the court
          should look to the guideline range specified
          for a defendant with Criminal History
          Category IV to guide its departure.


          In United States v. Hickman, 991 F.2d 1110 (3d Cir.

1993), this court remanded a case for resentencing because it

found that the district court had not properly completed the

necessary step-by-step procedure that must occur prior to an

increase under U.S.S.G. § 4A1.3.   In Hickman, the defendant's

prior record placed him in criminal history category III.   The

district court, however, believed that this resulted in a
sentence which did not adequately represent Hickman's long

history of similar conduct.   Therefore, it departed upward under

§ 4A1.3 by "doubling the top of the guideline range."   Id. at

1113.   The district court gave no further explanation for the

specific sentence.   The record, however, reflected that the court

was motivated by the fact that Hickman, at 65, was still engaged

in criminal activity even though his history of fraud type

offenses went back to 1953.

           This court held in Hickman that a district court must

follow the procedure contemplated by § 4A1.3 when choosing to

depart upward from the criminal history category originally

calculated for the defendant.
          Under this [§ 4A1.3] regime, the court is
          obliged to determine which category (of those
          higher than the category originally
          calculated for the defendant) best represents
          the defendant's prior criminal history. The
          court then uses the corresponding sentencing
          range to "guide its departure." Moreover,
          the court is obliged to proceed sequentially
          through these categories. It may not move to
          the next higher category until it has found
          that a prior category still fails to
          adequately reflect the seriousness of the
          defendant's past criminal conduct.


Id. at 1114.   We then went on to quote the following passage from

a Second Circuit case:
               The reason for obliging a judge to
          examine the next higher categories in
          sequence is that these categories reflect the
          Commission's careful assessment of how much
          incremental punishment a defendant should
          receive in light of the various degrees of a
          prior record.
Id. at 1114 (quoting United States v. Coe, 891 F.2d 405, 413 (2d

Cir. 1989)).    We ultimately concluded that, although the district

court was justifiably outraged by the defendant's long history of

fraud, the court erred when it "jumped more than three criminal

history categories without explanation and, a fortiori, without

going through the ratcheting procedure prescribed by the

Guidelines."    Id.

            The presentence report in this case found that Harris

had only one criminal history point resulting from a 1992

conviction of robbery, reckless endangerment, and related

offenses.    Thus, the report gave him a criminal history category

of I.   However, the presentence report also listed Harris'

extensive criminal background as a possible ground for departure.

The report indicated that Harris was currently charged in four

pending state prosecutions in Allegheny County.    The first

prosecution involved a murder.    The second was for robbery and

assault.    The third prosecution consisted of 16 counts of robbery

of various business establishments.    The fourth consisted of 12

counts of robbery of other businesses.    According to the report,

Harris had confessed his involvement in all of the pending

charges.    Harris also admitted that he had been present at a

drug-related murder committed by another.

            At sentencing, the district court exercised the

authority conferred upon it by § 4A1.3, with the following

explanation:
          According to the probation officer, the
          criminal history category is one.
                However, the probation officer stated
           that he believed the defendant's criminal
           behavior constitutes a criminal history
           category which is higher. We find that the
           appropriate criminal history category in this
           case is six.

                We find that the application of criminal
           history categories two, three, four and five
           are too lenient for the conduct in this case.

                              * * * *

                Hence, we find [that] the information
           [concerning the defendant's criminal
           activity] is reliable and we further find
           that it is highly likely that if released,
           the defendant will commit other predatory
           street crimes.


App. 277, 278.   After describing the crimes charged in the

indictments to which Harris had confessed, the court concluded:
               Mr. Harris is a predatory street
          criminal who has a propensity for violence of
          the most egregious type. We find that he is
          a danger to the community and will repeat
          similar offenses if released.

App. 279-80.


           We agree with the government that Hickman does not

"require the district court to go through a ritualistic exercise

in which it mechanically discusses each criminal history category

it rejects en route to the category that it selects."      United

States v. Lambert, 984 F.2d 658, 663 (5th Cir. 1993)(en banc).

Hickman and the objective of the § 4A1.3 ratcheting process do

require, however, that the sentencing court's reasons for

rejecting each lesser category be clear from the record as a

whole.   While it is clear to us from the record that the district

court justifiably regarded Harris' past record as horrendous and
his prospects for the future abysmal, the requirements of § 4A1.3

are not met by its declaration that "criminal history categories

two, three, four and five are too lenient for the conduct in this

case."   App. 277.

           First, the district court's conclusion that the lesser

categories were "too lenient" suggests to us that its focus may

have been on whether the result produced by the ratcheting

process was appropriate, that is, on whether the sentencing range

arrived at by using the lesser intervening categories was too

lenient, in the eyes of the district court, for someone with

Harris' past conduct and prospects for the future.   This is

precisely the kind of subjective judgment the ratcheting process

was designed to avoid.   The proper focus of § 4A1.3 analysis is a

comparison of the frequency and seriousness of the conduct

comprising the defendant's criminal history with the conduct of

others who fall into each category.

           Even if it were reasonably clear that the district

court's analysis had the appropriate focus, however, we would

still find the cryptic articulation of its reasoning too

conclusory to permit us to perform our review function and

attempt to assure the uniformity of sentencing that Congress

sought to achieve.   The insufficiency of the district court's

explanation concerning the appropriateness of criminal history

category VI and the inappropriateness of each lesser category is

well illustrated by a consideration of the contentions of the

parties regarding the appropriate criminal history category,

contentions that were not commented upon by the district court.
             Harris contends that he should be assigned a criminal

history category no higher than the category he would have been

assigned if he had been convicted of the charges reported by the

presentence report to be pending against him.    According to

Harris, this would be a category III.    He argues that if he were

convicted for the crimes in paragraphs 86-89 of the presentence

report, which were the basis for the upward departure, he would

only receive a total of 6 points beyond the single point

resulting from his conviction.    The presentence investigator

reported that under an existing plea agreement Harris would

receive a single term of life imprisonment for all these crimes.

Since he was to receive only one sentence for the four pending

cases, according to Harris, these cases should be treated as

yielding only one prior sentence under § 4A1.1(a).2    Thus, he

would receive 3 points under § 4A.1(a), which directs the courts

to add "3 points for each prior sentence of imprisonment

exceeding one year and one month."    Harris admits that he would

also receive 3 additional points since all of the crimes involved

violence.3    Harris thus concludes that if he had been sentenced

2
 . Section 4A1.2(a)(2) states that "[p]rior sentences imposed in
related cases are to be treated as one sentence for purposes of §
4A1.1(a), (b), and (c)."   The commentary to § 4A1.2 states that
prior cases are "related" if they "were consolidated for trial or
sentencing." U.S.S.G. § 4A1.2, comment. (n.3).
3
 . Under § 4A1.1(f), the court is directed to add "1 point for
each prior sentence resulting from a conviction of a crime of
violence that did not receive any points under (a), (b) or (c)
above because such sentence was considered related to another
sentence . . . up to a total of 3 points." Thus, since all four
prior cases involved crimes of violence, and since three of those
cases did not receive additional points under § 4A1.1(a), one
for the four cases pending in the Court of Common Pleas, he would

have 6 total criminal history category points, placing him in

category III, rather than category VI.

             The government, on the other hand, points out that if

each case charged in paragraphs 86-89 of the presentence report

were resolved separately and Harris were sentenced in each case,

he would receive an additional three points for each case,

amounting to 12 additional points, enough to place him in

category VI.   This, the government insists, is the relevant

consideration when the court is attempting to find the criminal

history category that adequately reflects the defendant's prior

criminal conduct and future prospects.

           The task before the sentencing court in these

circumstances is to identify the category which encompasses those

defendants whose criminal histories "most closely resemble[]" the

defendant's own.   See U.S.S.G. § 4A1.3.   Where the defendant has

confessed to the commission of serious crimes for which he has

not been convicted, it would certainly seem to us reasonable for

a sentencing court to consider what the defendant's criminal

history category would be if he had been convicted of those

crimes.   Moreover, when the conduct underlying the defendant's

prior offenses is as transactionally unrelated as the conduct

underlying the four prosecutions against Harris, adoption of the

government's approach by the sentencing court would provide a

(..continued)
point for each of those cases would be added.   See U.S.S.G. §
4A1.1, comment. (n.6).
sustainable basis for rejecting categories II, III, IV and V and

embracing category VI.   It is impossible to determine from this

record, however, whether the district court adopted the

government's approach.   As we have noted, it commented on neither

the government's nor Harris' analysis.   This is not to say that

§ 4A1.3 limits the court's discretion in a situation of this kind

to a guideline calculation of the points that would have been

received if pending charges were convictions.   Indeed, § 4A1.3 is

intended to provide flexibility in those cases where a point-by-

point calculation of the defendant's criminal history category is

not alone sufficient to reflect his culpability and

dangerousness.4   To this end, it confers discretion on the

district court to consider the particular facts relating to a

defendant's past criminal conduct in reaching a judgment on the

seriousness of that conduct and the likelihood of recidivism.

          A consideration of the relevant reliable data in this

case could clearly lead a sentencing court to a conclusion that

anything less than category VI would underrepresent the

defendant's past criminal conduct.   That is not the problem here.

The problem is rather that we do not know what it was about the

particular facts of Harris' case that led the district court to


4
 . It is for this reason that we reject Harris' argument that
his calculation leading to a criminal history category of III
places a ceiling on the district court's authority to depart
upward. We also note that his calculation may be flawed. If
Harris is awarded an additional point for the conviction of armed
robbery detailed in paragraph 81 of the presentence report, his
total points, even adopting his theory, would appear to be 7,
placing him in category IV.
believe him more culpable and more dangerous than those for whom

categories II, III, IV and V were intended.     Accordingly, our

decision in Hickman mandates resentencing.

                                  V.

           The district court gave Harris a four point upward

adjustment in calculating the sentence for the robbery charged in

count IV because it viewed the mace Harris was found to have used

on two tellers as a "dangerous weapon" within the meaning of

U.S.S.G. 2B3.1(b)(2)(D).5    A "dangerous weapon" is defined in the

Guidelines as "an instrument capable of inflicting death or

serious bodily injury."     U.S.S.G. § 1B1.1, comment. (n.1(d)).   In

turn, the Guidelines define a serious bodily injury as an "injury

involving extreme physical pain or the impairment of a function

of a bodily member, organ, or mental faculty; or requiring

medical intervention such as surgery, hospitalization, or

physical rehabilitation."     U.S.S.G. § 1B1.1, comment. (n.1(j)).

Because the adjusted offense level for count IV was higher than

the adjusted offense levels for the other four counts, it
determined Harris' combined adjusted offense level.     See U.S.S.G.

§ 3D1.4.

           The spray that Harris used during this bank robbery was

a product called Phaser Mace which Harris purchased at an Army &

Navy Store.   At the hearing, the government, in support of its

position that Phaser Mace spray was a dangerous weapon,


5
 . U.S.S.G. § 2B3.1(b)(2)(D) provides: "if a dangerous weapon
was otherwise used [during a robbery], increase by 4 levels."
introduced a promotional "Bulletin" about a "pepper spray."      The

bulletin had been issued by Zarc International, Inc., the

manufacturer of CAP-STUN, "an oleoresin capsicum ('OC') product

used safely by law enforcement for more than a decade."      App.

230.   This document reported the death of a man whom police had

sprayed with a product called First Strike, a "pepper spray"

manufactured by a competitor.    The autopsy report was reported to

have concluded the cause of death to be "asphyxia due to

bronchospasm precipitated by pepper spray."    Id.   The Bulletin

was careful to distinguish First Strike from CAP-STUN, which "has

undergone extensive toxicological testing and has proven to

present no potential danger to the human physiological system."

App. 231.    It noted that First Strike's ingredients were a "trade

secret" and thus unknown and that it was "delivered in a liquid

stream."    Id.   The Bulletin further cautioned that "until the

ongoing investigations [into the death] are completed,

conclusions about First Strike would be premature."     App. 230.

            The government also tendered the testimony of the

probation officer who had prepared the presentence report.      He

expressed the opinion that, if a pepper spray could cause the

death reported in the Bulletin, then the mace used by Harris

"could also cause serious bodily injury."     App. 241-42.

            The only other relevant evidence before the district

court on this issue was (1) a pamphlet tendered by Harris which

had been published by the makers of Phaser Mace, and (2) the

testimony of an FBI agent who arrived at the scene of the robbery

and spoke with the tellers who had been sprayed.     The pamphlet
asserted that Phaser Mace had been used for many years without

serious injury and that its effects lasted no longer than 10 to

15 minutes.    As the government stresses, however, it also states:
                 When an individual(s) receives a blast
            from the PHASER, he will experience extreme
            discomfort and disorientation. The first is
            usually a severe stinging/burning sensation
            to any affected part of the body. This is
            followed immediately by involuntary closing
            of the eyes due to the swelling of blood
            vessels causing temporary blindness. The
            victim will then experience respiratory
            problems and a choking sensation. All of
            this will occur within a matter of 1-2
            seconds. It is important to keep in mind
            that all this is happening to an individual
            who is totally unsuspecting. In the vast
            majority of occurrences the victim will also
            experience disorientation which creates a
            feeling of panic to accompany the other
            symptoms. These symptoms will last from 10-
            15 minutes.

                               * * * *

                 A one second burst of PHASER is
            sufficient to incapacitate the average
            person.


App. 234.

            On direct, the FBI agent testified:
            Q. Did you debrief the two tellers
            concerning that bank:

            A.   Yes.

            Q. Did they relate to you whether they were
            in need of any medical attention after being
            sprayed in the face with the mace by the
            defendant in this case?

            A. Yes. An ambulance showed up, according
            to [the] teller, [sic] they both required
            medical attention for their eyes, and one had
            problems breathing. She had an asthma
            condition, I believe.
App. 257-58.

         On cross-examination, the agent provided the following

context for his direct testimony:
          Q. Now, you said that paramedics showed up
          after the robbery?

         A.    Yes.

         Q. And they were treated by the paramedics,
         the two tellers, both tellers?

         A. Yes, both of them received medical
         attention on the scene.

         Q. That consisted of what -- washing out
         their eyes?

         A. I wasn't present. All I observed was the
         emergency medical personnel walk into the
         bank and go towards both tellers. At that
         point I left the bank.

         Q. So you don't know what type of treatment
         they were given?

         A.    No, sir.

         Q. Neither teller was placed in the
         ambulance and taken to the hospital; is that
         correct?

         A. Neither of them left the bank to the best
         of my knowledge.

                                * * * *

         Q.    They were both able to talk to you?

         A.    Yes.

         Q. And you interviewed them within an hour
         after their treatment, maybe less?

         A.    Probably less.

         Q.    Half hour, maybe even less than that . . .?
          A.   Half hour.


App. 258-59.

          The district court's findings on this issue and the one

addressed in the next section of this opinion were articulated

together at the sentencing hearing:
               The probation officer . . . added four
          points because the defendant used a dangerous
          weapon, that is, spraying mace in the face of
          the bank teller and thereby increased his
          base offense level by four.

               That conclusion is supported by a
          preponderance of the evidence. The probation
          officer then added two additional points
          because the offense involved the spraying of
          mace in the face of a bank teller and
          increased two levels for bodily injury,
          generating an adjusted offense level of 28.
          Each of those findings are supported by a
          preponderance of the evidence.

               We find that use of mace during the
          commission of a felony constitutes infliction
          of serious bodily injury with a dangerous
          weapon. The evidence preponderates the use
          of mace is a dangerous weapon and constitutes
          infliction of serious bodily injury.

          . . . we find that a victim of mace sustains
          a significant injury. Indeed, there is
          evidence of record, too, that two tellers
          required immediate medical attention, and
          there is further evidence of record of a
          death that was caused in North Carolina
          following the application of mace. Such
          evidence should not be ignored.


App. 274-75.

          The parties agree that the government had the burden of

proving by a preponderance of the evidence that Harris used an

"instrument capable of inflicting death or serious bodily
injury."    See United States v. Miele, 989 F.2d 659, 663 (3d Cir.

1993).   Moreover, we have insisted that "[i]nformation used as a

basis for sentencing under the Guidelines must have 'sufficient

indicia of reliability to support its probable accuracy.'"      Id.

(quoting U.S.S.G. § 6A1.3(a)).    Indeed, we have counseled that

"this standard should be applied rigorously."   Id. at 664.

            We hold that the government did not meet its burden and

that the district court erred in adding four points to the

sentencing calculation for count IV based on the current record.

The Zarc Bulletin lacked sufficient indicia of reliability for

the purpose for which it was used by the district court.      First,

it was promotional literature emanating from a competitor of the

product which may have caused the reported death in North

Carolina.    Second, even this competitor, with its inherent bias,

acknowledged that the limited information about the incident

rendered conclusions about the dangerousness of First Strike

"premature."    Third, and most important, the district court

lacked any basis for determining what First Strike is and whether

it bears any significant resemblance to Phaser Mace.    The

probation officer's testimony, based as it was on the Bulletin,

similarly lacked reliability.

            The most probative evidence available to the district

court of the capabilities of Phaser Mace was its own promotional

literature.    That literature reported that it had been used for

many years without serious injury.    Although the district court

would have been justified in discounting this claim on the basis

of its source, a discounted claim cannot carry the government's
burden in the absence of any evidence calling it into question.

The remainder of the pamphlet provides no reason to question that

claim.   While it describes "temporary blindness," "respiratory

problems," "a choking sensation," "disorientation," and a

"feeling of panic," all of this is accompanied by the assurance

that these effects last only 10 or 15 minutes and leave no

residual incapacity.

           Phaser Mace is thus clearly reported in its promotional

literature to be incapable of causing death.   Although that

literature refers to "extreme discomfort," we do not believe that

this claim, particularly given its self-serving nature, provides

a reliable basis for concluding that Phaser Mace inflicts

"extreme pain" as that term is used in the definition of serious

bodily injury.   It necessarily follows that the promotional

pamphlet provides an inadequate basis for concluding that Phaser

Mace is a dangerous weapon.   Finally, the very limited testimony

of the FBI agent about the effect of Phaser Mace on the two

tellers is entirely consistent with the claims of the pamphlet

and adds little to the government's case.



                               VI.

           The final issue presented by this appeal is whether the

district court erred when it increased Harris' offense level for

count IV by two under U.S.S.G. § 2B3.1(b)(3)(A) because two

tellers were found to have sustained "bodily injuries" as a

result of being sprayed with mace.
          Section 2B3.1(b)(3) establishes a graduated scale for

those cases in which a victim "sustained bodily injury":
          If any victim sustained bodily injury,
          increase the offense level according to the
          seriousness of the injury:

          Degree of Bodily Injury       Increase in Level

          (A) Bodily Injury                    add 2
          (B) Serious Bodily Injury            add 4
          (C) Permanent or Life-Threatening
              Bodily Injury                     add 6

          (D) If the degree of injury is between that
          specified in subdivisions (A) and (B), add 3
          levels; or

          (E) If the degree of injury is between that
          specified in subdivisions (B) and (C), add 5
          levels.


          The Application Notes of U.S.S.G. § 1B1.1 provide the

following definitions for the terms used in this graduated scale:
          "Bodily injury" means any significant injury;
          e.g., an injury that is painful and obvious,
          or is of a type for which medical attention
          ordinarily would be sought.

          "Serious bodily injury" means injury
          involving extreme physical pain or the
          impairment of a function of a bodily member,
          organ, or mental faculty; or requiring
          medical intervention such as surgery,
          hospitalization, or physical rehabilitation.

          "Permanent or life-threatening bodily injury"
          means injury involving a substantial risk of
          death; loss or substantial impairment of the
          function of a bodily member, organ, or mental
          faculty that is likely to be permanent; or an
          obvious disfigurement that is likely to be
          permanent.


          Where a particular situation falls on this analogue

scale is an issue the Commission clearly intended to be resolved
on a case-by-case basis after a fact-specific inquiry into the

circumstances of the particular crime and its impact on the

victims.    See United States v. Robinson, 20 F.3d 270, 278-79 (7th

Cir. 1994); United States v. Lancaster, 6 F.3d 208 (4th Cir.

1993).   A sentencing court's resolution of this issue is a

finding of fact that will be disturbed on appellate review only

if clearly erroneous.    See United States v. Ortiz, 878 F.2d 125,

126 (3d Cir. 1989).

            The district court in this case made only one brief

reference to the particular circumstances of this case, citing

the FBI agent's testimony that the tellers "required immediate

medical attention."    The court's primary focus, however, was not

on what happened in this case.    It found the reported North

Carolina death important and cast its ultimate finding in terms

of the non-case-specific conclusion that "a victim of mace

sustains a significant injury."    App. 275.

            The difficulty with the district court's approach can

best be illustrated by comparing two cases from other courts of

appeals which present the question of whether a victim of the

defendant's crime had received "bodily injury" from mace.

            In United States v. Lancaster, 6 F.3d 208 (4th Cir.

1993), a security guard had been sprayed with mace during a

robbery and had suffered "severe burning in his eyes and cheeks."

Id. at 209.    The district court found that no "bodily injury"

occurred.    The court of appeals held that this finding was not

clearly erroneous.    In the course of doing so it observed:
          While the burning in [the security guard's]
          eyes and cheeks caused by the mace was
          undoubtedly unpleasant, and could not be
          described as wholly trivial, it was only
          momentary and the mace produced no lasting
          harm.

Id. at 210.


          The Lancaster court gave the following explanation of

why the district court's finding was consistent with the

Guideline's definition of "bodily injury" as, inter alia, "an

injury that is painful and obvious, or is of a type for which

medical attention ordinarily would be sought."   U.S.S.G. § 1B1.1,

comment. (n.1(b)).
          Trivial injuries are not noticeably painful
          nor are they normally obvious to an observer.
          A momentary injury may be immediately
          "painful," but it is not "obvious" as we feel
          that term is intended in this context because
          it disappears quickly.

               It is also consistent with Application
          Note 1(b)'s elaboration of "significant
          injury" as being an injury "of a type for
          which medical attention ordinarily will [sic]
          be sought." Medical attention is not
          ordinarily sought for wholly trivial
          injuries. And while people who have
          sustained purely momentary injuries may often
          choose to be examined by a doctor as a
          precautionary measure to ensure that they
          have sustained no lasting harm, we do not
          understand such precautionary examinations to
          be the type of "medical attention" that the
          Guidelines contemplate to make an injury
          "significant."

Lancaster, 6 F.3d at 210 n.2.


          In United States v. Robinson, 20 F.3d 270 (7th Cir.

1994), the court upheld, as not clearly erroneous, the district
court's determination that bank tellers had suffered a "bodily

injury" after being sprayed with mace:
               The bank tellers who were sprayed
          experienced pain which lasted for hours and
          had some residual effect for days. The
          district court could properly make the
          factual finding that this was painful and
          obvious.


The court distinguished Lancaster on the grounds that the injury

suffered by the security guard was only momentary.

          These two cases demonstrate the necessity of sentencing

courts making a factually specific inquiry in each case as to

whether the injury was "painful and obvious," was "of a type for

which medical attention ordinarily would be sought," or was more

than insignificant for some other reason.   The degree of injury

from mace will differ depending on such factors as the strength

of the particular product used, the distance between the victim

and the dispenser, and the angle of delivery.   Accordingly, there

will undoubtedly be crimes involving the use of mace where no

"bodily injury" will occur, just as there will be such crimes

where a victim will experience such injury.

          We are thus unable to sustain the district court's

assignment of two points under § 2B3.1(b)(3)(A) based on its

conclusion that "a victim of mace sustains a significant injury."

Nor can we uphold its assignment based on the court's reference

to "immediate medical attention."   The FBI agent did not know,

and the record does not otherwise reveal, the character of the

attention given by the paramedics to the tellers, and we agree

with the Lancaster court that not all contact between a victim
and a health care professional will justify a conclusion that

"bodily injury" occurred.    The example relating to medical

attention in the definition of "bodily injury" is intended to

provide an objective basis for distinguishing significant from

insignificant injuries.    If, as in Lancaster, medical attention

would be sought by an ordinarily prudent person for the purpose

of diagnosis but no treatment ensues, that attention does not

help to establish the significance of the injury.     Lancaster,

6 F.3d at 210.

            The record also does not disclose anything about the

degree of pain experienced by the tellers.    Moreover, while a

trier of fact might conceivably draw an inference from the FBI

agent's testimony that they had injuries obvious to an observer,

this is not a necessary inference and it is not one that the

district court drew.

            On remand, the district court should determine the

character and duration of the symptoms experienced by the

tellers, as well as the character of the "medical attention" they

received.    Only then will it be in a position to determine

whether Harris' mace inflicted "bodily injury" within the meaning

of § 2B3.1(b)(3)(A).

            We add one final note for the guidance of the district

court when it reevaluates the available reliable evidence and

makes its findings.    We do not read the Guidelines, as did the

Lancaster court, to require that an injury be painful and obvious

for a substantial period of time in order to qualify as a "bodily

injury."    See Lancaster. 6 F.3d at 210 & n.2.   Moreover, we think
it likely that cases involving mace will arise in which a finding

of bodily injury will be appropriate despite the absence of

prolonged effects.   Our thought can be illustrated by reference

to the promotional literature for Phaser Mace.   As we have

suggested, given their source and purpose, a trier of fact should

take the claims in Phaser's promotional literature about its

immediate effects with a "grain of salt."   Nevertheless, if the

record in a case established that a maced bank teller had

symptoms accurately described by those claims for a period of

more than a moment or two, we believe a district court would be

justified in concluding that he or she had received a "bodily

injury."   A blow the effects of which can be shaken off in a

moment or two may well be an insignificant injury.   Blindness,

disorientation, breathing difficulty, and extreme discomfort

sufficient in combination to induce panic for a period of ten to

fifteen minutes are something else entirely and can rationally be

viewed as more than an insignificant injury.
                              VII.

          The judgment of the district court will be reversed and

this matter will be remanded for resentencing only.
