                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4389



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


RUBIN C. SLADE, JR.,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.  Irene M. Keeley, Chief
District Judge. (CR-03-1)


Argued:   December 1, 2006                   Decided:   May 11, 2007


Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.


Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Judge Williams and Judge King joined.


ARGUED: Matthew Anthony Victor, Charleston, West Virginia, for
Appellant.    Stephen Donald Warner, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West
Virginia, for Appellee. ON BRIEF: Rita R. Valdrini, Acting United
States Attorney, Wheeling, West Virginia, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:

      After Rubin Slade was convicted for armed bank robbery, in

violation of 18 U.S.C. § 2113(a) and (d), and for brandishing a

firearm in relation to a crime of violence, in violation of 18

U.S.C. § 924(c)(1)(A)(ii), the district court sentenced him to two

consecutive terms of life imprisonment.        On appeal, Slade contends

(1) that the district court abused its discretion in refusing to

investigate the suggestion that jurors were unable to hear trial

proceedings; (2) that the district court erred in counting his 1981

Virginia robbery conviction as a “strike” for purposes of the

federal “three strikes” statute, 18 U.S.C. § 3559(c); and (3) that

the district court imposed an unreasonable variance sentence for

his   brandishment   conviction   when    it   increased   a   recommended

guideline sentence of seven years to life imprisonment.           For the

reasons that follow, we affirm.


                                   I

      On the snowy morning of December 5, 2002, Slade walked into

the Chenoweth Creek Branch of the Mountain Valley Bank located on

the outskirts of Elkins, West Virginia, wearing a camouflage army

jacket, sunglasses, a hood, and carrying two flower-print pillow

cases and a small caliber pistol.       He approached two bank tellers,

giving each an empty pillow case, and pointed the pistol at them

saying, “Put the money in the bag.”       Slade walked out of the bank

with $12,020.90.

                                  -2-
        A week later, police apprehended Slade.            He was indicted on

two counts -- one charging him with armed bank robbery and the

other    charging   him   with     brandishing     a   firearm   during    and   in

relation to a crime of violence -- and tried before a jury.

     During voir dire, two members of the venire informed the court

that they had difficulties hearing. In response, the court adopted

procedures during the trial to assure itself that the jury were

hearing the proceedings.           At the close of the government’s case,

Slade’s counsel told the district court that he had been informed

by a court clerk that “the jury has stated that it’s having trouble

hearing the lawyers, and perhaps, the witnesses and the Court.”

When the district court asked Slade’s counsel which court clerk had

told them this, he could not remember.             After the court recalled to

counsel the instructions it had given to the jury directing them to

raise their hands if they could not hear and noted that none had

done so, the court refused to investigate counsel’s suggestion

further.    The jury convicted Slade on both counts.

     During sentencing, the district court applied the three-

strikes law, 18 U.S.C. § 3559(c), which imposes a mandatory life

sentence for those convicted of three “serious violent felonies,”

to the bank robbery count.          Slade challenged one of the predicate

offenses -- a 1981 robbery conviction in Virginia -- as not being

a serious violent felony as defined by the statute.                      After an

extended    hearing,      during    which    the    district     court    received


                                       -3-
evidence, the court concluded that the prior Virginia conviction

satisfied the statute because Slade had used a pocketknife in the

course of robbing a hitchhiker.        With respect to the brandishing

count, the district court understood that the Sentencing Guidelines

recommended a seven-year sentence and increased that sentence to

life imprisonment because brandishing was at the heart of the bank

robbery and therefore was an essentially equivalent violation.

This appeal followed.


                                  II

     Slade   contends   first   that    the   district   court   committed

structural error in refusing to investigate whether the jurors had

heard all of the trial proceedings. The district court, concluding

that it had communicated sufficiently with the jury to be assured

that the jury heard the proceedings, rejected Slade’s motion.          We

conclude the district court did not abuse its discretion in denying

Slade’s motion.

     The issue first arose during voir dire when a member of the

venire complained of having hearing difficulties.           The district

court responded that “it is important that you hear all the

questions and it’s very important once we start this, that you hear

the answers from the witnesses.”         The court told the juror to

“consider this issue while I am finishing up the voir dire this

morning, and then I’m going to call you up and ask . . . how much

of it you think you heard and how much you may have missed.”            As

                                  -4-
promised, the district court revisited the prospective juror’s

hearing issue as voir dire drew to a close, and the juror said that

he “might” have trouble hearing some things.       At this point, a

second juror spoke up, stating that he too had a “hearing problem.”

When asked if he had heard “everything this morning,” he replied,

“Most of it, yes.”

     During the jury selection process, when counsel were given the

opportunity to strike prospective members of the jury, the district

court brought the hearing difficulties of the two prospective

jurors to the attention of both the prosecution and the defense.

Neither, however, wished to strike the two jurors, either for cause

or with their peremptory strikes.     As a result, the two members of

the venire who had complained of having hearing problems were

impaneled as jurors.

     Throughout the trial, the district court took steps to ensure

that the jury heard the proceedings.    It repeatedly instructed the

jury to inform the court if they had any difficulty in hearing the

proceedings.   For example, the court told the jurors, “if you have

any problems hearing raise your hand.     I need to know about it as

soon as the problem starts.”   The court also repeatedly instructed

witnesses and counsel throughout the trial to speak clearly and

into the microphone, reminding them that the jurors needed to hear

them.   For example, the court instructed one witness to speak “in

a nice loud voice so all the jurors can hear you”; another to


                                -5-
“speak directly into the microphone . . . so everyone can hear

you”; and yet another to speak “out loud, so we can hear.”           These

warnings were given to each witness and lawyer, sometimes more than

once.

     At   the   close   of   the   government’s   case,   Slade’s   counsel

requested that the court conduct an investigation as to whether the

jury were hearing the proceedings, inasmuch as counsel had heard

something from a clerk to the effect that the jury was having

trouble hearing the lawyers, perhaps the witnesses, and perhaps the

court.    The court responded, “This jury was instructed by me, that

if any member of the jury could not hear, they were to raise their

hand as soon as they could not hear.              I have been carefully

scrutinizing this jury during the entire two days of trial.          No one

has raised their hand.”       Slade’s counsel conceded that fact, and

the court refused to investigate the matter further.

     At the end of the trial, prior to charging the jury, the court

told the jury that “[i]f at any time during the delivery of this

charge, any juror does not hear what I am saying, I want you to

raise your hand and I will repeat what I’ve said.”          No juror ever

raised his hand then, just as none had during the course of trial.

     We agree with the district court that there is nothing in the

record to indicate that the jury was not in fact hearing trial

proceedings.    The court had repeatedly advised the jury to raise

their hand if they could not hear, and none had done so.        The court


                                     -6-
also repeatedly instructed witnesses and lawyers to speak loudly

and clearly into the microphone. Finally, the court indicated that

it had observed the jury throughout the course of the trial and had

no   reason    to   conclude   that   the    jury   was     not    hearing       the

proceedings.    In these circumstances, we readily conclude that the

district court did not abuse its discretion in denying Slade’s

motion.    See United States v. Jones, 542 F.2d 185, 194 (4th Cir.

1976) (stating that we “accord deference to the [district court’s]

informed   discretion”    whether     to    investigate     a    claim    of     jury

infection).


                                      III

      Slade    next   contends   that      the   district       court    erred    in

sentencing him under the federal three-strikes law on the armed

bank robbery conviction, arguing that his 1981 Virginia robbery

conviction was not a “serious violent felony,” as required by the

three-strikes law.     He maintains that there is no evidence that he

used a firearm or other dangerous weapon during the course of the

1981 Virginia robbery, to which he had pleaded guilty.

      The three-strikes law mandates a life sentence for “a person

who is convicted . . . of a serious violent felony . . . if the

person has been convicted on separate prior occasions . . . of 2 or

more serious violent felonies.”         See 18 U.S.C. § 3559(c)(1)(A)(i).

While the term “serious violent felony” includes robbery, see id.

§ 3559(c)(2)(F)(i), the statute gives the defendant an opportunity

                                      -7-
to disqualify a robbery offense as a predicate offense “if the

defendant establishes by clear and convincing evidence that no

firearm or other dangerous weapon was used [or was threatened to be

used] in the offense and the offense did not result in death or

serious bodily injury . . . to any person,” id. § 3559(c)(3)(A)(i),

(ii).

     Slade contends that in connection with his 1981 conviction, no

weapon was involved. Alternatively, he argues that if a weapon was

involved, it was a pocketknife that did not constitute a “dangerous

weapon.”

     After the government offered evidence that a pocketknife was

used in accomplishing the robbery, Slade offered the testimony of

his co-defendant in that case who testified that Slade neither used

a dangerous weapon, nor committed the robbery at all.              In somewhat

extended findings of fact, the district court found Slade’s co-

defendant incredible.      The court stated that the witness testified

in a manner “that this court views to be false . . . in many

material respects.”    The court also noted that the 1981 conviction

was based on Slade’s plea of guilty to violating Virginia Code §

18.2-58, which imposes special penalties for committing robbery “by

partial strangulation, or suffocation, or by striking or beating,

or by other violence to the person, or by assault . . ., or by the

threat   or   presenting   of   firearms,    or   other   deadly    weapon   or

instrumentality     whatsoever.”          (Emphasis   added).         In     the


                                    -8-
circumstances where Slade’s only evidence was discredited by the

district court and was patently inconsistent with the government’s

evidence and Slade’s guilty plea, we conclude that Slade did not

carry his burden of proving by “clear and convincing evidence” that

no “dangerous weapon was involved in the offense.”       See 18 U.S.C.

§ 3559(c)(3)(A)(i).

     Slade argues that even if a pocketknife was involved in the

robbery, it did not qualify as a “dangerous weapon.”      We reject his

contention by applying the definition of dangerousness adopted by

the Supreme Court in McLaughlin v. United States, 476 U.S. 16

(1986).     In concluding that an unloaded gun was a “dangerous

weapon” within the meaning of the federal bank robbery statute, the

Supreme Court stated:

     First, a gun is an article that is typically and
     characteristically dangerous; the use for which it is
     manufactured and sold is a dangerous one, and the law
     reasonably may presume that such an article is always
     dangerous even though it may not be armed at a particular
     time or place.     In addition, the display of a gun
     instills fear in the average citizen; as a consequence,
     it creates an immediate danger that a violent response
     will ensue. Finally, a gun can cause harm when used as
     a bludgeon.

Id. at 17-18.

     Each reason given by the Court in McLaughlin for regarding an

unloaded handgun as a “dangerous weapon” applies with equal force

to   a   pocketknife.    First,   a   pocketknife   is   typically   and

characteristically dangerous; its blade serves no other purpose but

to cut and wound.       Second, the display of a pocketknife in a

                                  -9-
threatening situation, such as a robbery, will certainly instill

fear in the average citizen, raising the possibility of a violent

response.      Finally, just as a gun “can cause harm when used as a

bludgeon,” a pocketknife can cause even more harm when so used

because of its sharp blade.

      At bottom, the district court did not err in concluding that

the 1981 Virginia robbery conviction was a serious violent felony,

as that term is used in 18 U.S.C. § 3559(c).


                                      IV

      Finally, Slade contends that the district court’s upward

variance sentence on Count 2 (the brandishing count) from seven

years’ imprisonment to life imprisonment was unreasonable.                 The

district court assumed that the Sentencing Guidelines recommended

a   sentence    of   seven   years   for    a   violation   of   18   U.S.C.   §

924(c)(1)(A)(ii), and acting under 18 U.S.C. § 3553(a), it enhanced

the sentence because, as the court stated:

      [W]hen one thinks about this at a deeper level, the point
      here is that the use of weapons in the count of
      conviction is probably the most horrifying fact of the
      case. The defendant brandished this -- this gun with the
      -- before the tellers, striking them with a tremendous
      amount of fear and I am disinclined to believe that the
      sentence for the -- on the weapons charge should be any
      less than the sentence for the bank robbery, because the
      need to protect the public from further crimes is still
      the same.   The need to afford adequate deterrence is
      still the same, and the need to reflect the seriousness
      of the offense to promote respect for the law and to
      provide just punishment for the offense, is still the
      same for both of these counts. The fact that we have
      cleared up what the applicable maximum is [life

                                     -10-
      imprisonment], leads this Court to conclude that from a
      legal perspective the maximum sentence is available to
      it, if I make a determination that such a sentence is
      sufficient but not greater than necessary to comply with
      the purposes of § 3553(a)(2). And I believe that it is
      and I, therefore, believe that the sentence of life on
      the felony weapons conviction is a reasonable sentence.

      If we were to conduct an analysis of so great an enhancement,

we would likely find the variance unreasonable.         But because the

district court erred in concluding that the Sentencing Guidelines

recommended a seven-year sentence, rather than life imprisonment,

we need not examine the reasonableness of the variance.

      Section 2K2.4 of the Sentencing Guidelines provides that the

recommended guideline sentence for a violation of 18 U.S.C. §

924(c) is the minimum term of imprisonment required by statute.

Section 5G1.1(b), in turn, provides that when the statutory minimum

exceeds the maximum applicable guideline range, the statutory

minimum is the recommended guideline sentence.        In this case, the

statutory minimum for a violation of § 924(c) is life imprisonment,

and   therefore   the   recommended     Guidelines   sentence   is   life

imprisonment.

      Section 924(c) provides a term of imprisonment for brandishing

a firearm of not less than seven years “[e]xcept to the extent that

a greater minimum sentence is otherwise provided by . . . any other

provision of law.”      (Emphasis added).     Section 3559(c) is such

“other provision.”      It states that “[n]otwithstanding any other

provision of law, a person who is convicted . . . of a serious


                                 -11-
violent felony shall be sentenced to life imprisonment” if the

person was previously convicted of two or more “serious violent

felonies.”    18 U.S.C. § 3559(c)(1)(A)(i).

     In this case, Slade fulfills the conditions of § 3559(c).          He

was convicted under § 924(c) of brandishing a firearm in connection

with a bank robbery, and for purposes of § 3559(c), that offense is

defined to be a “serious violent felony.”              See 18 U.S.C. §

3559(c)(2)(F)(i).     Because Slade was previously convicted of two

serious violent felonies, his sentence for the brandishing offense

must be life imprisonment.

     Because the Sentencing Guidelines thus recommend the same

sentence     that   the   district   court   imposed   by   an   imperfect

application of 18 U.S.C. § 3553(a), any error attributed to the

district court’s process in arriving at the life sentence is

harmless. The life sentence itself that the district court imposed

on Count 2 was not erroneous; indeed, it was mandated by 18 U.S.C.

§ 3559(c).

     Accordingly, we affirm the judgment of the district court.



                                                                  AFFIRMED




                                     -12-
