                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0362n.06
                             Filed: May 29, 2007

                                           No. 05-5707

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )   ON APPEAL FROM THE
                                                       )   UNITED STATES DISTRICT
EDWARD MELTON,                                         )   COURT FOR THE EASTERN
                                                       )   DISTRICT OF TENNESSEE
       Defendant-Appellant.                            )


BEFORE:        KEITH, COLE, Circuit Judges; and OLIVER, District Judge.*

       DAMON J. KEITH, Circuit Judge. Defendant, Edward Melton, pled guilty to aiding and

abetting a carjacking, in violation of 18 U.S.C. §§ 2119 and 2. Proceeding pro se,1 he now appeals

his sentence. For the reasons that follow, we AFFIRM.

                                                 I

       As Lee Ann Williams drove home on July 15, 2004, Melton and his co-defendant, Unjolee

Moore, took an interest (albeit a devious one) in her car — a 2005 Mercedes Benz SL500 Roadster.

They figured that they would follow her and take it. So when Williams arrived home later that day,




       *
          The Honorable Solomon Oliver, Jr., United States District Court Judge for the Northern
District of Ohio, sitting by designation.
       1
          Melton’s attorney filed an “Anders brief,” seeking to withdraw from representing
Melton as permitted in Anders v. California, 386 U.S. 738 (1967). After examining a few run-
of-the-mill issues in sentencing appeals, the Anders brief concludes that there are no viable issues
for this appeal, and that any appeal would thus be frivolous.

                                                 1
Moore jerked her from the Mercedes, took the driver’s seat, and fled the scene. Melton waited

nearby as Moore completed the robbery and followed as he fled.

       Minutes later, Chattanooga police officers spotted the stolen Mercedes and attempted to stop

it. Moore refused, resulting in a pursuit that ended with the Mercedes crashed into a tree. Moore

was arrested, but Melton escaped unnoticed. Once the Mercedes was returned to Williams, she

found a can of pepper spray in it. Moore claimed ownership to the spray, and told officers he had

planned to use it had Williams resisted his demands.

       Moore also gave up Melton as his accomplice, who was arrested the next day. Not only did

Melton confess to his participation in the carjacking, he admitted he knew of Moore’s plan to use

the pepper spray in the event Williams had resisted the robbery. Hence, both were charged with

aiding and abetting each other in the carjacking (a violation of 18 U.S.C. §§ 2119 and 2); and both

pled guilty.

       The United States Sentencing Guidelines recommended a sentence in the range of 51 to 63

months for Melton, based in part on a 3-level enhancement that the sentencing court imposed after

determining pepper spray to be a “dangerous weapon.” See U.S.S.G. § 2B3.1(b)(2)(E). After

considering the advisory range (and hearing no objections from Melton), the court sentenced Melton

to 55 months of incarceration. (Moore was sentenced to 75 months.)




                                                2
       Proceeding pro se, Melton appeals. He primarily argues that the sentencing court improperly

applied the 3-level enhancement when it determined pepper spray to be a “dangerous weapon.”2 See

id.

                                                II

        Because Melton failed to make any objections in the lower court, the appellate standard of

review is “plain error.” See United States v. Combs, 33 F.3d 667, 669 (6th Cir. 1994). Under “plain

error” review, Melton must show that

      (1) an error occurred in the district court, (2) that was plain, (3) which affected
      substantial rights, (4) and seriously interfered with the fairness, integrity, or public
      reputation of the judicial proceedings.

United States v. Treadway, 328 F.3d 878, 883 (6th Cir. 2003). Hence, we must first decide whether

the district court committed error in applying the § 2B3.1(b)(2)(E) enhancement.

       That section directs that “if a dangerous weapon was brandished or possessed” in the

commission of a robbery, a sentencing court must apply a 3-level enhancement to the defendant’s

base offense level. Melton, of course, did not personally possess the pepper spray, but he admitted

that he knew Moore had possessed the pepper spray and had intended to use it in the event Williams

resisted their robbery plan. Hence, he aided and abetted Moore in the robbery with knowledge of

the pepper spray’s existence and intended use; and, therefore, he may be subjected to §

2B3.1(b)(2)(E)’s 3-level enhancement. See 18 U.S.C. § 2 (aider and abetter is “punishable as a

principal”); see also United States v. Pinkney, 15 F.3d 825, 828 (9th Cir. 1994) (enhancement cannot



       2
         Melton’s pro se brief sets forth a few auxiliary arguments that are either clearly
frivolous (e.g., “any fact (other than prior convictions) that increases the maximum penalty for a
crime, [sic] must be charged in the indictment, submitted to jury [sic] and proven beyond a
reasonable doubt” (Appellant’s Br. 9)), unsupported by law or fact, or wholly incomprehensible,
and thus warrant little discussion.

                                                 3
apply absent a finding that the accomplice’s possession of weapon was known to the defendant or

that it reasonably should have been foreseen). This point is clear.

       Not so clear is whether pepper spray is a “dangerous weapon” under § 2B3.1(b)(2)(E)—a

question this Circuit has yet to address. The commentary to § 2B3.1(b)(2)(E) provides some

guidance: “‘Dangerous weapon’ means . . . an instrument capable of inflicting death or serious

bodily injury . . . .” U.S.S.G. § 1B1.1, comment (n.1(D)(i)) (referenced by § 2B3.1 (n.1)). “[S]erious

bodily injury” is defined as an “injury involving extreme physical pain or the protracted impairment

of a function of a bodily member, organ, or mental faculty . . . .” U.S.S.G. § 1B1.1, comment

(n.1(L)).

       In describing pepper spray’s effects, Melton’s Presentencing Report says,

     Pepper spray can cause extreme pain and prolonged impairment of bodily organs. The
     spray burns the face, nostrils, restricts breathing passages, and causes blindness. Most
     persons recover from its effects within 20 to 30 minutes, sooner with aid. However,
     persons with medical problems such as asthma have experienced damage to lungs when
     exposed to pepper spray.

(JA 50.) Moreover, albeit in a different context, this Circuit has noted pepper spray’s incapacitating

effects, see, e.g., Bultema v. Benzie County, 146 F. App’x 28, 35–36 (6th Cir. 2005), and other

circuits have as well, see, e.g., United States v. Neill, 166 F.3d 943, 949–50 (9th Cir. 1999).

Therefore, based on the severe and probable effects that pepper spray has on the human body, the

district court’s determination that pepper spray constitutes a “dangerous weapon” was not erroneous.

       In any event, had the district court erred in concluding pepper spray to be a “dangerous

weapon,” Melton would be nonetheless incapable of showing that this error was “plain” at the time

of his sentencing. This Court, after all, had never addressed the issue until now, so any error in the

district court would not have been “clear” or “unequivocal.” See United States v. Olano, 507 U.S.




                                                  4
725, 734 (1993) (“A court of appeals cannot correct an error . . . unless the error is clear under

current law.” (emphasis added)).

       Accordingly, because Melton cannot satisfy the first element (that there be an “error”) or the

second element (that the error be “plain”), further analysis of the remaining two elements of plain

error review is unnecessary. See United States v. Payne, 16 F.3d 1222, 1994 WL 36849, at *2 (6th

Cir. Feb. 8, 1994) (table decision) (per curiam) (“Absent any error, our inquiry is at an end.”).

                                                 III

       Having seen no error in the district court’s 3-level enhancement under § 2B3.1(b)(2)(E), we

AFFIRM the district court’s sentence of 55 months.




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