                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1341
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Richard Lee Paine, Sr.,                *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: October 29, 2004
                                Filed: May 18, 2005
                                 ___________

Before BYE, BEAM, and GRUENDER, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       In this direct criminal appeal, Richard Lee Paine, Sr., appeals the district
court's1 finding he "otherwise used" rather than "brandished" a firearm within the
meaning of United States Sentencing Guidelines § 2B3.1(b)(2)(B) during a June 15,
2002, bank robbery. He also appeals the district court's finding he "used or attempted
to use" his sixteen-year-old son within the meaning of U.S.S.G. § 3B1.4 during the
commission of the robbery. We affirm.


      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
                                          I

       On June 15, 2002, the O'Bannon Bank in Dallas County, Missouri, was robbed
by two males wearing baseball caps and sunglasses. The FBI arrested Paine and
charged him with robbery by force, violence and intimidation, and with committing
the robbery by assaulting and putting in jeopardy the life of a bank employee by use
of a handgun, in violation of 18 U.S.C. § 2113(a) and (d). On October 14, 2003, he
pleaded guilty pursuant to a written plea agreement. On February 3, 2004, a
sentencing hearing was held wherein he was sentenced to 70 months imprisonment.
As part of the plea agreement, the parties stipulated to the following facts.

            Around 11:00 a.m. on Saturday, June 15, 2002, Defendant
            and his son (who at the time was sixteen years old) entered
            the O'Bannon Bank, Gem Center Branch, Old Highway 65
            South, Dallas County, Missouri wearing caps and
            sunglasses. The Gem Center Branch is located near Fair
            Grove, Missouri. Defendant and his son approached a
            teller, and Defendant pulled a handgun from his waistband
            and pointed the handgun at the teller. Defendant said
            words to the effect "This is a stick up. Hand me your large
            bills." After a short pause, Defendant said words to the
            effect "I mean it. This is a stick up. Give me your large
            bills." A short time later, Defendant asked the teller if she
            had hit any alarms. The teller removed currency from her
            teller drawer and placed the currency on the teller counter.
            Defendant took the currency and placed the currency in a
            plastic bag. Defendant and his son then left the bank with
            the currency. Defendant took $3,300 in the robbery.
            Defendant and his son were photographed by the bank's
            surveillance cameras.

            At the time of the robbery, O'Bannon Bank's deposits were
            insured by the Federal Deposit Insurance Corporation.



                                        -2-
      On Monday, September 15, 2003, Defendant, after being
      advised of his Miranda rights, stated in writing he and his
      son "entered the O'bannon [sic] Bank in Fair grove [sic]
      Mo., and I robbed the bank for $3,200. I used an unloaded
      Colt 45 pistol . . . . it [sic] was all my idea and not my sons
      [sic] idea, he had no idea that I was going to rob this bank
      . . . ." Defendant also identified himself in surveillance
      photographs of the robbery.

      Defendant agrees these facts are true except that Defendant
      states he did not remove and point the handgun at the teller
      until the teller paused after Defendant first stated "This is
      a stick up. Hand me your large bills."

At sentencing, the following testimony was received,

      THE COURT: What are the facts of the – I think I read in
      the presentence investigation report that maybe Mr. Paine
      had said that he didn't point it at the teller till she didn't
      respond to his first command or something and then
      pointed it?

      MS. LEONARD: Yes, Your Honor, if you – actually, in
      the plea agreement there's a stipulation to the facts in
      Paragraph 2 and it's – it was his recollection that he did not
      remove and point the handgun at the teller until she paused
      after he first said, "This is a stick-up. Hand me your large
      bills."

      Her recollection, I believe, was that he pulled the handgun
      from his waistband and pointed the handgun at her and said
      words to the effect, "This is a stick-up," and then when she
      didn't believe him, said, "I mean it. This is a stick-up." So
      those are the facts that were stipulated to in the plea
      agreement.



                                   -3-
             THE COURT: But the defendant is agreeing that after she
             didn't respond at first, he then removed, I guess from his,
             what, waist –

             DEFENDANT PAINE: Yes.

             THE COURT: – I'm not sure of the picture, but – and
             pointed the handgun at the teller with further direction. Is
             that what I'm reading here in the set of facts?

             MS. LEONARD: Yes. His recollection was he pulled it
             out after she did not believe him that it was a stick-up, yes.

       Additionally, the government offered into evidence four photographs taken by
surveillance cameras showing Paine and his son during the robbery. The photographs
show Paine and his son standing at the teller window wearing baseball caps and
sunglasses. The photographs show him holding the gun and pointing it at the teller
with his finger on the trigger. Finally, they show he and his son standing only a few
feet from the teller - across the teller window - during the course of the robbery.
Paine stipulated the photographs were taken during the course of the robbery and he
identified himself in the photographs.

       Paine admitted his actions amounted to brandishing a firearm (a five-level
enhancement) but argued the evidence was insufficient to prove he otherwise used
the weapon (a six-level enhancement) during the robbery. Based on the evidence, the
district court concluded,

             THE COURT: Well, I admit, the cases probably leave us
             with not a lot of guidance there, but based on what I
             understand the facts to be, in looking at these pictures, it's
             clearly shown, Mr. Paine, with your hand on the gun and
             looks like finger on the trigger. And if it was pulled out
             and pointed at the teller after she didn't respond the first
             time, that seems like it's a pretty fair inference that that was

                                           -4-
             meant to convey a threat if something didn't – if she didn't
             respond in the way you wanted to.

             So I find it's otherwise used. I find it's something more
             than just showing that you happened to have a gun in your
             pocket or in your belt when you pulled it out and pointed
             it to [sic] her to get her to give you the money.

       Next, Paine argued his offense level should not be enhanced an additional two
levels because the evidence was insufficient to show he "used or attempted to use his
[sixteen-year-old son] to commit the offense or assist in avoiding detection of, or
apprehension for, the offense." To rebut his arguments, the government focused on
the photographs, and offered this additional stipulation,

             THE COURT: All right. What's the government say?

             MR. BUNCH: Your Honor, by way of evidence, one other
             fact that I believe the parties are prepared to stipulate to is
             that Mr. Paine informed FBI special agent David Burlew at
             the time he was arrested that the reason he had asked his
             son to go with him is although his son did not know,
             according to Mr. Paine, that he was going to rob the bank,
             that he wasn't brave enough to commit the robbery by
             himself and so he wanted his son to go in order to give him
             the courage to commit the robbery.

             Is that something that Mr. Paine can stipulate to or would
             you like for me to call Agent Burlew?

             MS. LEONARD: I think that that's in the reports, that you
             told the FBI that in the initial interview?

             DEFENDANT PAINE: Yeah.

      Based on this evidence, the district court concluded,


                                          -5-
             THE COURT: Well, again, I've got these four pictures
             here, and it – I have to do my own evaluation of it. When
             I look at these pictures, the son does not look to me like
             he's surprised that his dad is standing there with a gun. In
             fact, he looks very calm standing at the teller window as if
             he's a participant in this robbery. It's clear that the father
             got his son there by directing him, encouraging him,
             recruiting, soliciting, however you want to label it. The
             son didn't just happen to show up there as a coincidence.
             And it appears clear to me that the defendant did use his
             son. And whether or not that was to commit the offense or
             to avoid apprehension because of numbers, all I can say is
             that judging the pictures and the statement that was made,
             I find that it's proper to enhance by the two levels for using
             a minor to commit the crime.

       On appeal, Paine argues there were insufficient facts to support the district
court's application of the six-level enhancement for "otherwise using" a firearm
instead of a five-level enhancement for "brandishing" a firearm. He also argues there
were insufficient facts for the district court to apply a two-level enhancement for
using his son in connection with the robbery. Finally, for the first time on appeal
Paine argues his Sixth Amendment rights were violated because the factual bases for
the enhancements were not submitted to a jury.

                                          II

       We review the district court's application of the Sentencing Guidelines de
novo, United States v. Smotherman, 285 F.3d 1115, 1116 (8th Cir. 2002), and its
findings of fact for clear error, United States v. Hart, 324 F.3d 575, 579 (8th Cir.
2003) (citation omitted). We need not, however, review the district court's
independent findings of fact if the factual predicate necessary to justify a sentencing
enhancement is derived from a defendant's factual admissions. In other words, if the
facts admitted by Paine are sufficient to support the enhancement, any additional fact

                                          -6-
findings by the district court are superfluous. United States v. Gomez, 271 F.3d 779,
781 (8th Cir. 2001). Similarly, his Sixth Amendment claim fails if he admitted the
facts necessary to support the sentence imposed. United States v. Booker, 543 U.S.
— , 125 S.Ct. 738, 756 (2005) ("Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.") (emphasis supplied). Thus, we must
determine whether his admissions provide an adequate factual basis to support the
enhancements and to overcome his Sixth Amendment claim.

      A.     U.S.S.G. § 2B3.1(b)(2)(B) - "Otherwise Used" or "Brandished"

      Section 2B3.1(b)(2) of the United States Sentencing Guidelines provides,

             (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 or possessed, increase by 5 levels;
             (D) if a dangerous weapon was otherwise used, increase by
             4 levels; (E) if a dangerous weapon was brandished or
             possessed, increase by 3 levels; or (F) if a threat of death
             was made, increase by 2 levels.

      Application Note 1 to § 2B3.1 states "otherwise used" and "brandished" are
defined in the Commentary to U.S.S.G. § 1B1.1. Application Note 1 to § 1B1.1
provides,

             (C) "Brandished" with reference to a dangerous weapon
             (including a firearm) 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. Accordingly, although


                                         -7-
             the dangerous weapon does not have to be directly visible,
             the weapon must be present.2

             (I) "Otherwise used" with reference to a dangerous weapon
             (including a firearm) 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.

      In United States v. Hoelzer, 183 F.3d 880, 883 (8th Cir. 1999), this court
upheld an "otherwise used" enhancement where the defendant used a gun to strike the
victim in the head. In United States v. Elkins, 16 F.3d 952, 953-54 (8th Cir. 1994),
we upheld an "otherwise used" enhancement where the defendant held a knife against
the throat of a victim. We have not, however, had an opportunity to apply
§ 2B3.1(b)(2) in a factual scenario similar to this case since the November 1, 2000,
amendment to Application Note 1(c) to § 1B1.1.

       Other circuits, however, have directly faced this issue. In United States v.
Cover, 199 F.3d 1270, 1278-79 (11th Cir. 2000), the court stated "[w]e agree with
this definition and, like the majority of courts that have considered the question, find
that the use of a firearm to make an explicit or implicit threat against a specific person
constitutes 'otherwise use' of the firearm." Similarly, in United States v. Orr, 312
F.3d 141, 144-45 (3d Cir. 2002), the court addressed the difference between
"brandishing" and "otherwise using" and concluded "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." In United States v. Warren, 279 F.3d 561, 563 (7th


      2
        Prior to November 1, 2000, Application Note 1(c) to § 1B1.1 stated
"'[b]randished' with reference to a dangerous weapon (including a firearm) means that
the weapon was pointed or waved about, or displayed in a threatening manner."
(emphasis supplied).

                                           -8-
Cir. 2002), the court indicated "[w]e have affirmed 'otherwise used' adjustments when
pointing a weapon at a specific victim created a personalized threat of harm." See
also United States v. LaFortune, 192 F.3d 157, 161 (1st Cir. 1999) ("[I]t was the
specific rather than the general pointing of the gun that elevated its use from mere
'brandishment' to 'otherwise used'"); United States v. Gilkey, 118 F.3d 702, 706 (10th
Cir. 1997) (emphasizing the specific over the general threats to the victim); United
States v. De La Rosa, 911 F.2d 985, 993 (5th Cir. 1990) (brandishing plus specific
threats constitute otherwise using a weapon).

      Notwithstanding these cases, Paine asks us to adopt the position advocated by
the Second Circuit in United States v. Matthews, 20 F.3d 538, 554 (2d Cir. 1994),
where the court held brandishing and pointing firearms at a victim while uttering
explicit threats did not trigger the "otherwise used" enhancement. In light of the
November 1, 2000, amendment to the application note, we conclude the precedential
value of United States v. Matthews is greatly diminished. It is apparent the
amendment was intended to include at least some instances involving pointing a
weapon within the definition of "otherwise used."

       Here, Paine was standing only two or three feet from the teller when he drew
the weapon and pointed it directly at her. Paine admits he drew the weapon because
the teller did not immediately respond when he told her: "This is a stick up. Hand me
your large bills." After drawing the weapon, Paine, with his finger on the trigger of
the gun, emphasized the threat saying: "I mean it." In doing so, he did more than
display the gun. He employed the gun to convey a threat directed at this specific
teller which was intended to intimidate her into complying with his demands.

       We conclude Paine's admissions satisfy the factual predicate necessary to
establish the gun was "otherwise used" in committing the robbery.




                                         -9-
      B.     U.S.S.G. § 3B1.4 - Paine's Use of His Son

       Section 3B1.4 states: "If the defendant used or attempted to use a person less
than eighteen years of age to commit the offense or assist in avoiding detection of, or
apprehension for, the offense, increase by 2 levels." Application Note 1 states: "'Used
or attempted to use' includes directing, commanding, encouraging, intimidating,
counseling, training, procuring, recruiting, or soliciting." § 3B1.4, cmt. n.1.

        Both Application Note 1 and cases applying § 3B1.4 make clear the "used or
attempted to use" language requires the defendant to affirmatively involve or
incorporate a minor into the commission of the offense. "Pursuant to the sentencing
guidelines, the two-level § 3B1.4 increase is only applicable if a defendant directs,
trains, or in some way affirmatively engages the minor participant in the crime of
conviction." United States v. Suitor, 253 F.3d 1206, 1210 (10th Cir. 2001); United
States v. Jimenez, 300 F.2d 1166, 1169 (9th Cir. 2002) ("The evidence must show
that 'the defendant acted affirmatively to involve the minor' in the crime") (quoting
United States v. Parker, 241 F.3d 1114, 1120 (8th Cir. 2001)); United States v.
Castro-Hernandez, 258 F.3d 1057, 1060 (9th Cir. 2001) ("It is sufficient that the
defendant took affirmative steps to involve the minor in a manner that furthered or
was intended to further the commission of the offense."); United States v. Rivera, 248
F.3d 677, 682 (7th Cir. 2001) (same); United States v. Butler, 207 F.3d 839, 847 (6th
Cir. 2000) (same).

       Under § 3B1.4, "used or attempted to use" does not, however, require active
involvement on behalf of the minor. Castro-Hernandez, 258 F.3d at 1060 (citing
United States v. Warner, 204 F.3d 799, 801 n.2 (8th Cir. 2000) ("We agree that a
minor's own participation in a federal crime is not a prerequisite to the application of
§ 3B1.4.")); see also Warner, 204 F.3d at 801 n.2 (finding no plain error in district
court's application of § 3B1.4 where defendant "acted irresponsibly in bringing his
young child on this nefarious junket. His offer to leave her in what might well have

                                         -10-
been a dangerous situation to facilitate his criminal activity warrants a sentence
enhancement.").

       Here, Paine admitted he asked his son to accompany him on the robbery to
provide moral support. He stated without his son present he would not have been
able to follow through with his plan. Paine, however, contends the enhancement was
unjustified because his son had nothing to do with nor did he know about the
robbery.3

       As noted above, Paine's son's knowledge of the robbery plan and his
participation in the plan are not germane to our inquiry. "[T]he relevant inquiry is
whether [Paine] took affirmative acts to involve [his son] in the commission of the
offense. Rivera, 248 F.3d at 682 (citation omitted). It is, therefore, enough he
admitted to asking his son to accompany him on the robbery because he would not
otherwise have had the courage to commit the crime. In concluding the facts
admitted by him are sufficient to support the district court's application of § 3B1.4,
we are mindful "[t]he unambiguous legislative design of section 3B1.4 is to protect
minors as a class from being 'solicited, procured, recruited, counseled, encouraged,
trained, directed, commanded, intimidated, or otherwise used' to commit crime."
United States v. McClain, 252 F.3d 1279, 1286 (11th Cir. 2001) (citing Violent Crime
Control and Law Enforcement Act of 1994 § 140008(a); § 3B1.4, cmt. n.1 (2000)).
As in Warner, we are convinced, by Paine's own admissions, his irresponsible act of


      3
       Both Paine and his son donned baseball caps and sunglasses before entering
the bank in an apparent attempt to conceal their identities. The photographs show
Paine's son standing next to him as the pair huddled in front of the teller window.
They also show Paine's son was in a position to see his father draw the weapon and
hear him threaten the teller. Thus, we find Paine's claim his son was unaware of the
robbery plan dubious. Nevertheless, we need not rely on any such inferences, no
matter how reasonable, to conclude the district court's application of the sentencing
enhancement was justified.

                                        -11-
involving his son in a potentially life-threatening crime warrants this sentencing
enhancement. 204 F.3d at 801.

        Finally, we consider whether Paine's sentence, imposed under a mandatory
sentencing scheme, is erroneous. See United States v. Pirani, No. 03-2871, slip op.
at 6 (8th Cir. April 29, 2005) (en banc) (citing United States v. Antonakopoulos, 399
F.3d 68, 76 (1st Cir. 2005) ("The argument that a Booker error occurred is preserved
if the defendant below argued Apprendi or Blakely error or that the Guidelines were
unconstitutional.")). Here, Paine first raised Blakely in proceedings before this court.
Thus, we review his sentence for plain error. Pirani, slip op. at 6.

     Plain error review is governed by the four-part test of United States v. Olano,
507 U.S. 725, 732-36 (1993):

      before an appellate court can correct an error not raised at trial, there
      must be (1) error, (2) that is plain, and (3) that affects substantial rights.
      If all three conditions are met, an appellate court may then exercise its
      discretion to notice a forfeited error, but only if (4) the error seriously
      affects the fairness, integrity, or public reputation of judicial
      proceedings.

Pirani, slip op. at 7 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).

      Paine has the burden of proving plain error. Olano, 507 U.S. at 734-35.
"Appellate review under the plain-error doctrine, of course, is circumscribed and we
exercise our power under Rule 52(b) sparingly." Jones v. United States, 527 U.S.
373, 389 (1999).

      The first two Olano factors are satisfied here - the district court erred by
applying the guidelines as mandatory and the error is plain. Pirani, slip op. at 8.
"[W]here the law at the time of trial was settled and clearly contrary to the law at the


                                          -12-
time of appeal – it is enough that an error be 'plain' at the time of appellate
consideration." Johnson, 520 U.S. at 468. As for the third factor, Paine must show
a "reasonable probability that he would have received a more favorable sentence with
the Booker error eliminated by making the Guidelines advisory." Pirani, slip op. at
10.

        We have reviewed the record on appeal and conclude there is no reasonable
probability Paine can demonstrate the district court would have imposed a more
favorable sentence but for the Booker error. The district court sentenced him at the
low end of the applicable guideline range but standing alone that fact is "insufficient
. . . to demonstrate a reasonable probability that the court would have imposed a
lesser sentence absent the Booker error." Pirani, slip op. at 12. Thus, we find no
plain error.

                                          III

      The order and judgment of the district court are affirmed.
                      ______________________________




                                         -13-
