                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-9-2002

USA v. Orr
Precedential or Non-Precedential: Precedential

Docket No. 01-4127




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"USA v. Orr" (2002). 2002 Decisions. Paper 793.
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PRECEDENTIAL

       Filed December 9, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-4127

UNITED STATES OF AMERICA

v.

RANDY ORR,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 01-cr-00015E
District Judge: The Honorable Sean J. McLaughlin

Submitted Under Third Circuit LAR 34.1(a)
November 19, 2002

Before: BARRY, AMBRO, Circuit Judges, and ACKERMAN,*
District Judge

(Filed: December 9, 2002)

_________________________________________________________________

* The Honorable Harold A. Ackerman, United States District Judge for
the District of New Jersey, sitting by designation.


       W. Penn Hackney, Esq.
       Karen S. Gerlach, Esq.
       Renee Pietropaolo, Esq.
       Office of the Federal Public Defender
       1001 Liberty Avenue
       1450 Liberty Center
       Pittsburgh, PA 15222

        Attorneys for Appellant

       Bonnie R. Schlueter, Esq.
       Assistant U.S. Attorney
       Office of the United States Attorney
       633 United States Post Office
        & Courthouse
       Pittsburgh, PA 15219
         -AND-
       Marshall J. Piccinini, Esq.
       Assistant U.S. Attorney
       Office of the United States Attorney
       100 State Street
       Suite 302
       Erie, PA 16507
        Attorneys for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

Appellant Randy Orr pled guilty to one count of use of a
dangerous weapon in connection with bank robbery,
pursuant to 18 U.S.C. S 2113(d), and was sentenced, as
relevant here, to 50 months imprisonment. He now appeals.
We have jurisdiction under 18 U.S.C. S 3742(a) and 28
U.S.C. S 1291, and will affirm.

I.

On February 2, 2001, Orr single-handedly committed
armed robbery of a PHB Employees Federal Credit Union in
Fairview, Pennsylvania, carrying what appeared to be a
black handgun. After entering the bank, Orr told the

                                 2


manager to kneel, face the wall, and put her hands on her
head. He then held his gun to the head of the assistant
manager and directed her to empty a metal cash box into
a garbage bag. He left with $65,468.00.

With the cooperation of a friend of Orr’s, the government
obtained a recorded confession. The cooperating witness
also reported that Orr owned a pellet gun that resembled a
handgun, and witnesses to the bank robbery reported that
he had carried a black handgun. Orr was indicted on two
counts and pled guilty to the count that charged use of a
dangerous weapon in connection with bank robbery, with
the other count subsequently dismissed.

On November 1, 2001, Orr was sentenced to 50 months
imprisonment, based in part on a four-level enhancement
pursuant to S 2B3.1(b)(2)(D) of the U.S. Sentencing
Guidelines for having "otherwise used" a "dangerous
weapon." He raised two objections: (1) the pellet gun he
used in the robbery was not a "dangerous weapon," and (2)
he had not "otherwise used" but had merely"brandished"
the gun and, therefore, he should not have received the
four-level enhancement. The District Court rejected both
objections, and they are properly before us now. We review
the District Court’s interpretation of the sentencing
guidelines de novo. United States v. Johnson, 199 F.3d 123,
125 (3d Cir. 1999).

II.

Orr first argues that the guidelines preclude application
of a four-level enhancement for "otherwise used" under
S 2B3.1(b)(2)(D) when the object employed in the robbery
appears to be but is not a dangerous weapon. Orr used
what appeared to be a functioning handgun but was, in
fact, a dismantled pellet gun.
Orr’s argument rests on the purported contradiction
between the definition of objects that appear to be but are
not "dangerous weapons" in S 1B1.1 and in S 3B3.1. A
pellet gun, while not a firearm, is by definition a"dangerous
weapon." S 1B1.1, Commentary, Application Note 1(e)
(2001). Orr concedes that the dismantled pellet gun

                                3


appeared to be a "dangerous weapon," but contends that
because it was dismantled, it was not so in fact.

But a dismantled pellet gun is a dangerous weapon in its
own right. In this connection, the government argues that
even the frame of the pellet gun could inflict serious injury
if wielded as a weapon. See McLaughlin v. United States,
476 U.S. 16, 17-18 (1986) (holding that an unloaded gun
was a "dangerous weapon" within the meaning of the
federal bank robbery statute partly due to potential harm
when used as a bludgeon). We agree and hold that a
dismantled pellet gun which could be used as a bludgeon
is a "dangerous weapon" within the meaning ofS 1B1.1.

Even if we were to conclude that a dismantled pellet gun
only appears to be a "dangerous weapon," however,
S 1B1.1, the general definitional section, defines "dangerous
weapon" to include any object that "closely resembles" or
"create[s] the impression" of being"an instrument capable
of inflicting death or serious bodily injury."S 1B1.1,
Application Note 1(d) (2001). Section 2B3.1 contains at
Application Note 2 the seemingly duplicative provision that,
consistent with S 1B1.1, "an object shall be considered to
be a dangerous weapon for purposes of subsection (b)(2)(E)
[concerning "brandishing"] if . . . the object closely
resembles . . . or . . . [was] used . . . in a manner that
created the impression that the object was an instrument
capable of inflicting death or serious bodily injury." Section
2B3.1 is silent, however, as to whether such an object
should be considered a dangerous weapon for purposes of
S 2B3.1(b)(2)(D), concerning "otherwise used." Orr argues
that the narrower definition of "dangerous weapon"
contained in S 2B3.1 contradicts and, therefore, replaces
the general definition in S 1B1.1. Thus, the argument goes,
an object that merely appears to be a dangerous weapon
can only be "brandished" under S 2B3.1(b)(2)(E); it cannot
satisfy the definition of "otherwise used" under
S 2B3.1(b)(2)(D).

The difficulty with this argument is that S 1B1.1 provides
at Application Note 1 that its definitions "are of general
applicability . . . except to the extent expressly modified in
respect to a particular guideline or policy statement"
(emphasis added). Application Note 1 to S 2B3.1 specifically

                                4


states that "dangerous weapon" is defined in the
Application Notes to S 1B1.1. An omission in the partial
restatement of that definition in Application Note 2 to
S 2B3.1 does not expressly circumscribe the general
definition, especially in light of the recognition in
Application Note 2 to S 1B1.1 that "[d]efinitions of terms
also may appear in other sections." It is much more likely
that Application Note 2 to S 2B3.1 focuses on reminding
district courts to apply the expansive definition of
"dangerous weapon" in S 1B1.1.

The Court of Appeals for the Eleventh Circuit rejected
Orr’s precise argument in United States v. Miller, 206 F.3d
1051 (11th Cir. 2000). The Court held that the District
Court did not plainly err in finding that the defendant
"otherwise used" a "dangerous weapon" and thus qualified
for the four-level enhancement pursuant to S 2B3.1(b)(2)(D),
although the weapon in question was an inert bomb. The
Court interpreted the guidelines to uniformly treat objects
appearing to be dangerous weapons as if they were in fact
dangerous weapons for sentence enhancement purposes.
Id. at 1052.

We agree. Application Note 1(d) of S 1B1.1 clearly
instructs that objects that appear to be dangerous weapons
shall be considered dangerous weapons for purposes of
S 2B3.1.

Orr’s second argument is that his weapon was merely
"brandished" in the course of the robbery, justifying a
three-level enhancement under S 2B3.1(b)(2)(E), rather than
"otherwise used," warranting a four-level enhancement
under S 2B3.1(b)(2)(D). Section 2B3.1 incorporates not only
S 1B1.1’s definition of "dangerous weapon" but also its
definitions of "brandished" and "otherwise used." S 2B3.1,
Application Note 1. "Brandished" means that"all or part of
the weapon was displayed, or the presence of the weapon
was otherwise made known to another person, in order to
intimidate that person, regardless of whether the weapon
was directly visible to that person." S 1B1.1, Application
Note 1(c). "Otherwise used" means that the conduct "did
not amount to the discharge of a firearm but was more
than brandishing, displaying, or possessing a firearm or
other dangerous weapon." S 1B1.1, Application Note 1(f).

                                5


The question, then, which must be answered is this:
when does conduct constituting brandishing become
sufficiently threatening such that the weapon was
"otherwise used?" Our previous decisions suggest the
answer. In United States v. Johnson, we found that the
defendant had "otherwise used" a firearm by pointing a gun
at the victim, threatening to shoot, and demanding her
money. 931 F.2d 238, 240 (3d Cir. 1991). In an identically-
named decision eight years later, we found that the
defendants had "otherwise used" a dangerous weapon when
a co-defendant told an employee to put down her phone,
raised a baseball bat, and threatened to harm or kill her
with it.* United States v. Johnson, 199 F.3d 123 (3d Cir.
1999). In dicta, we noted our agreement with the Court of
Appeals for the First Circuit that "specifically leveling a
cocked firearm at the head or body of a bank teller or
customer, ordering them to move or be quiet according to
one’s direction, is a cessation of ‘brandishing’ and the
commencement of ‘otherwise used.’ " Id. at 127, quoting
United States v. La Fortune, 192 F.3d 157 (1st Cir. 1999).
Furthermore, "[p]ointing a weapon at a specific person or
group of people, in a manner that is explicitly threatening,
is sufficient to make out ‘otherwise use’ of that weapon,"
regardless of whether that weapon is a firearm. Id. While we
left open the question of whether such an explicit threat
must be made verbally or might be made through conduct
alone, Orr concedes that either will do.

Consonant with these decisions, the District Court
correctly found that pointing a gun at the head of the
assistant manager and ordering her to empty money into a
garbage bag was a "specific threat" directed at her and was
precisely the type of conduct which satisfies the"otherwise
used" requirement. Neither the guidelines nor the caselaw
requires infliction of the violent physical contact Orr
suggests or a verbalized threat to harm the victim in order
to constitute "otherwise used."
_________________________________________________________________

* The 1991 and 1999 Johnson cases interpreted an earlier version of
the guidelines, in which "brandished" was defined to mean that "the
weapon was pointed or waved about, or displayed in a threatening
manner." The definition of "brandished" we used in those cases is
consistent with the definition under the current guidelines.

                                6


Other courts of appeals have reached similar conclusions
on similar facts. See, e.g., United States v. Wooden, 169
F.3d 674, 676 (11th Cir. 1999) (pointing a handgun at the
victim’s head one-half inch away constituted "otherwise
use"); United States v. Taylor, 135 F.3d 478, 482-83 (7th
Cir. 1998) (poking a gun into the bank employee’s back
while directing her to produce money was "otherwise use"
of that weapon); United States v. Elkins, 16 F.3d 952, 953-
54 (8th Cir. 1994) (forcing a bank patron at knife-point to
enter the bank parking lot and surrender the car keys was
"otherwise use"); United States v. Roberts , 898 F.2d 1465,
1470 (10th 1990) (placing a knife against the victim’s throat
from behind while demanding money at the automatic teller
machine constituted "otherwise use").

III.

For the foregoing reasons, we will affirm the judgment of
the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
7
