In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3846

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EMMANUEL HART,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 474--Harry D. Leinenweber, Judge.


Argued March 31, 2000--Decided August 21, 2000




  Before POSNER, RIPPLE and ROVNER, Circuit Judges.

  RIPPLE, Circuit Judge. In this case, we must
decide whether the display of bags and shoe boxes
during a bank robbery, when accompanied by the
express threat that they contain a bomb,
constitutes the brandishing, displaying or
possessing of a dangerous weapon within the
meaning of U.S.S.G. sec. 2B3.1(b)(2)(E). The
district court applied the enhancement on the
facts presented by this case. For the reasons set
forth in the following opinion, we affirm the
judgment of the district court.


I
BACKGROUND

  Within a sixteen day period in 1998, Emmanuel
Hart robbed three banks in Chicago, Illinois. On
June 8, 1998, Mr. Hart entered Mid City National
Bank and approached a bank teller. Mr. Hart then
placed a package wrapped in a brown paper bag on
the counter in front of the teller and gave the
teller a demand note, which stated, "’I have a
bomb in this box[.] There is also two bomb’s on
the 5 floor[.] I want the 100.00’s 50.00’s
20.00[’s] now or we all die[.]’" R.32 at 3. After
reading the note, the teller complied with Mr.
Hart’s demand by removing the money from his
drawer and placing it on the counter. Mr. Hart
took the money and left the bank.

  Ten days later, on June 18, 1998, Mr. Hart
entered American National Bank. He carried a
white plastic bag containing a grey shoe box. Mr.
Hart approached the teller and placed a demand
note on the counter. The note stated, "’I have a
bomb in this shoe box and will kill every one in
this bank[.] [G]ive me the $100.00’s $50.00’s
$20.00’s[.]’" R.32 at 3. The teller complied and
Mr. Hart took the money and left the bank.

  Finally, on June 23, 1998, Mr. Hart entered
Midland Federal Savings and Loan Association. He
carried a blue nylon lunch box and several
plastic bags. Mr. Hart placed the lunch box on
the counter in front of the teller and said,
"’You have two minutes to put everything in the
bag.’" R.32 at 4. Upon providing the teller with
a grocery bag, Mr. Hart added, "’Hurry up. Put
everything in the bag. Hurry up.’" Id. The teller
complied. When a security guard approached him,
Mr. Hart warned the guard, "’Don’t move. You have
two minutes until the bomb goes off.’" Id. Hart
then took the bag and fled the bank.

  Mr. Hart was subsequently arrested and pleaded
guilty to three counts of bank robbery in
violation of 18 U.S.C. sec. 2113(a). In the
Presentence Investigation Report, the probation
officer recommended that Mr. Hart’s base offense
level be increased three levels pursuant to
guideline 2B3.1(b)(2)(E) because he brandished,
displayed or possessed a dangerous weapon during
the course of the robberies. Mr. Hart objected to
this recommendation; he conceded that a two-level
enhancement pursuant to sec. 2B3.1(b)(2)(F) would
be appropriate because he had made threats to the
tellers, but he argued that subsection (E) did
not apply because he had not brandished,
displayed or possessed a dangerous weapon or an
object that could have been perceived as such.
Over Mr. Hart’s objection, the district court
applied the three-level sentencing enhancement
pursuant to sec. 2B3.1(b)(2)(E) because,
according to the court, the objects Mr. Hart
brandished or displayed reasonably could have
appeared to be dangerous weapons. Based on this
enhancement, Mr. Hart’s total offense level was
25. Mr. Hart’s criminal history was determined to
be 4, and this provided for a sentence range of
84 to 105 months in prison. The court sentenced
Mr. Hart to 84 months in prison, followed by
three years of supervised release, and ordered
him to pay full restitution in the amount of
$16,460, as well as a special assessment of $300.

II
DISCUSSION
  On appeal, Mr. Hart disputes only the
applicability of the sentencing enhancement for
brandishing, displaying or possessing a dangerous
weapon during the commission of a robbery. See
U.S.S.G. sec. 2B3.1(b)(2)(E) & comment. (n.2)
(1998). Mr. Hart contends that the requirement
for the dangerous weapon enhancement cannot be
satisfied without the presence of an actual
weapon or an object that is designed to resemble
a weapon, i.e. a toy gun, a replica or a plastic
knife. We cannot accept this argument. For the
following reasons, we hold that the objects Mr.
Hart brandished or displayed reasonably could
have appeared to be a dangerous weapon within the
meaning of the guideline.

  We review a district court’s findings of fact in
the sentencing context for clear error./1 The
district court’s application of the Sentencing
Guidelines to the facts is also given due
deference./2 By contrast, we review de novo
questions of law involving the interpretation of
a guideline provision./3

  Guideline 2B3.1 governs the crime of robbery and
provides for a range of enhancements to be
imposed by the sentencing court if the
defendant’s conduct during the course of the
robbery created a risk of harm beyond that which
is inherent to the offense. See U.S.S.G. sec.
2B3.1, comment. (backg’d.) ("Possession or use of
a weapon, physical injury, and unlawful restraint
sometimes occur during a robbery. The guideline
provides for a range of enhancements where these
factors are present."). Essentially, the
guideline creates a "hierarchy of culpability"
for varying degrees of criminal involvement
during the commission of a robbery. See United
States v. Wooden, 169 F.3d 674, 675 (11th Cir.
1999). Within this hierarchy, subsection
2B3.1(b)(2)(E) instructs district courts to
increase a defendant’s base offense level by
three levels if a "dangerous weapon was
brandished, displayed, or possessed" by the
defendant in the course of a robbery. U.S.S.G.
sec. 2B3.1(b)(2)(E). According to the Guidelines,
a "[d]angerous weapon" is "an instrument capable
of inflicting death or serious bodily injury,"
and is "[b]randished" when it is "pointed or
waved about, or displayed in a threatening
manner." U.S.S.G. sec. 1B1.1, comment. (n.1(c) &
(d)).

  Although sec. 2B3.1(b)(2)(E), on its face,
refers only to weapons that are dangerous, the
commentary in application note 2 directs
sentencing courts to impose the three-level
enhancement whenever a harmless object that
"appeared to be a dangerous weapon" was
brandished, displayed or possessed by the
defendant. U.S.S.G. sec. 2B3.1(b)(2)(E), comment.
(n.2); see also United States v. Buckley, 192
F.3d 708, 709 (7th Cir. 1999), cert. denied, 120
S. Ct. 2021 (2000); accord United States v.
Miller, 206 F.3d 1051, 1052 (11th Cir. 2000)
("Based on the plain language of this commentary,
we have recognized that objects which appear to
be dangerous weapons should be treated for
sentencing purposes as if they actually were
dangerous weapons."). "[I]nsofar as dangerous
weapons are concerned, appearances count as well
as reality. . . ." United States v. Koonce, 991
F.2d 693, 697 (11th Cir. 1993). Simply stated,
"the Commission equates the image of a ’dangerous
weapon’ with its reality for purposes of sentence
enhancement" under sec. 2B3.1(b)(2)(E). United
States v. Dixon, 982 F.2d 116, 121 (3d Cir.
1992).

  We believe that the Commission’s rationale for
treating a harmless object that "appeared to be a
dangerous weapon" as though it were actually a
dangerous weapon is clear. As many of our sister
courts already have articulated, the risk of a
violent response that can flow from brandishing,
displaying or possessing a dangerous weapon while
perpetrating a robbery is just as real whether
the object is an actual weapon or merely an
object used by the defendant to create the
illusion of a dangerous weapon. See United States
v. Souther, No. 99-4582, 2000 WL 992230, at *4-*5
(4th Cir. July 18, 2000); United States v. Bates,
213 F.3d 1336, 1338 (11th Cir. 2000); United
States v. Woodard, 24 F.3d 872, 874 (6th Cir.
1994); Dixon, 982 F.2d at 123-24. Regardless of
whether the weapon is authentic, the risk that
victims or law enforcement officers will respond
with violence is heightened, thereby increasing
the risk to everyone involved.

  Until now, this court has not had the occasion
to decide in a published opinion the appropriate
standard for determining whether a particular
object appeared to be a dangerous weapon within
the meaning of sec. 2B3.1(b)(2)(E). The parties
here have assumed that an objective standard
applies. Mr. Hart argues that the district court
erred by applying a subjective standard. To
resolve his contention, we must first decide
whether an objective standard is proper. The
majority of circuits that have addressed this
issue directly have held that an objective
standard applies. See Woodard, 24 F.3d at 874
(holding that an objective standard is
appropriate); Dixon, 982 F.2d at 124 (applying an
objective standard); United States v. Taylor, 960
F.2d 115, 116 (9th Cir. 1992) (applying an
objective standard); but see Bates, 213 F.3d at
1338-39 (relying on the intent of the perpetrator
and the subjective perception of the teller)./4
  In Dixon, for example, the Third Circuit
concluded that the appearance of an object as a
dangerous weapon should be determined from an
objective standard. See Dixon, 982 F.2d at 124.
In that case, two individuals entered a bank and
ordered the tellers to empty the cash drawers.
Although neither of the perpetrators were
actually armed, one of the perpetrators draped a
towel over her hand to create the appearance that
she had a gun. She succeeded in creating this
appearance; the bank employees testified that
they believed a gun was concealed beneath the
towel. On appeal, it was argued that, because no
object was possessed other than a towel
concealing a hand, an object that appeared to be
a dangerous weapon could not possibly have been
brandished, displayed or possessed. The Third
Circuit found this argument unavailing. The court
reasoned that "[e]ven though [the perpetrator]
did not possess an actual weapon underneath the
concealing towel, her actions created a
reasonable belief that she had a gun." Id. at 124
(emphasis added).

  Like the Third Circuit, the Sixth Circuit has
also concluded that the appearance of an object
as a dangerous weapon must be determined from an
objective standard. See Woodard, 24 F.3d at 874.
In Woodard, a man entered a bank and, while
pointing what appeared to be a silver revolver at
the teller, presented her with a demand note. The
investigation into the robbery revealed that the
teller had told law enforcement officers that the
silver revolver could have been a toy.
Furthermore, another bank teller who observed the
robbery stated that she also suspected the
revolver was a toy, but that she was uncertain.
The defendant argued that because the tellers
admitted that the "weapon" could have been a toy,
it was evident that the object did not appear to
be a dangerous weapon as required by sec.
2B3.1(b)(2)(E). The Sixth Circuit disagreed. The
court concluded that the appropriate standard for
determining whether an object appeared to be a
dangerous weapon "is not the subjective state of
mind of the victim teller, but an objective
standard." Id. The court reasoned that even if
the tellers were close enough to recognize that
the pistol was not real, a distant police officer
or security guard would be far enough away that
he might perceive the toy revolver as a dangerous
weapon and that this perception could engender a
violent or deadly response. See id.

  Similarly, in Taylor, the Ninth Circuit applied
an objective standard when it decided that a
robber who gave the bank teller a note stating
that he had a gun and deliberately displayed the
outline of a gun under his shirt, possessed what
appeared to be a dangerous weapon. Taylor, 960
F.2d at 116. In that case, a man entered a bank
and handed the bank teller a demand note, which
read, in relevant part: "This is a hold up. I
have a gun in the waistband of my pants." Id. The
robber proceeded to raise his shirt, and in the
waistband of his pants was what appeared to be a
gun. The robber pulled his undershirt tightly so
that the teller saw the clear outline of a gun
handle. The court held that, because the robber
"intentionally created the appearance that he
possessed a dangerous weapon, he told his victim
he had a gun, and the victim reasonably believed
that [he] was armed," the three-level enhancement
for brandishing, displaying or possessing a
dangerous weapon was justified. Id. (emphasis
added).

  In accord with the Third, Sixth and Ninth
Circuits, we conclude that sentencing courts must
employ an objective standard in determining
whether a particular object appeared to be a
dangerous weapon within the meaning of sec.
2B3.1(b)(2)(E)./5 We believe that the relevant
question is whether a reasonable person, under
the circumstances of the robbery, would have
regarded the object that the defendant
brandished, displayed or possessed as a dangerous
weapon, "capable of inflicting death or serious
bodily injury." U.S.S.G. sec. 1B1.1, comment.
(n.1(d)). Although the victim’s perception of the
object may be relevant to this inquiry, her
subjective state of mind is never controlling of
the outcome.

  On appeal, Mr. Hart argues that the district
court erred in its determination that he
brandished or displayed a dangerous weapon
because the court applied a subjective standard.
He bases this argument on the contention that a
reasonable person could not mistake a shoe box
wrapped inside of a plastic or paper bag for a
bomb. Essentially, Mr. Hart’s argument is that an
object cannot "appear to be" a dangerous weapon
under sec. 2B3.1(b)(2)(E), despite his attempt to
make it appear so, unless the object itself
resembles a dangerous weapon. We cannot accept
this argument.

  Despite Mr. Hart’s contention to the contrary,
the district court did not apply a subjective
test when it determined that Mr. Hart brandished,
displayed or possessed what appeared to be a
dangerous weapon. After hearing arguments from
both parties on the matter, the court concluded
that under the circumstances of the robbery, a
person in the teller’s position would have
believed that Mr. Hart possessed a bomb.
Specifically, the court remarked:
[Bank robbers] would not come in with, you know,
the stick of dynamite wired to, say, an alarm
clock and set it on [the counter]. I mean, they
would be more inclined to put it in a box. It
seems that this would appear to be--certainly,
from the standpoint of the teller, which is, I
think, how you are supposed to take this, it
would appear to be a dangerous weapon. . . .

What I am saying is you would never expect a
person to come in with an actual bomb without it
being in something. I think that is the
distinguishing feature here; that the person was
seeing a box or a lunchbox and was told that it
contained an explosive. That person is seeing a
bomb.

R.41 at 9, 11. Although the district court did
not employ the terms "objective standard" or
"reasonable belief," we believe that it is
apparent from the court’s remarks that it applied
an objective standard. When the court stated that
the relevant inquiry should be made from the
"standpoint of the teller," the court was not
referring to the subjective beliefs of the
tellers who were robbed by Mr. Hart, but rather
to the reasonable person in the teller’s
position.

  Mr. Hart’s brief substantiates this conclusion.
Although Mr. Hart contends that the district
court erroneously applied a subjective standard,
he also criticizes the court for not hearing
evidence regarding the perception of any of the
tellers who were robbed by Mr. Hart. Mr. Hart
argues that the court "should not be permitted to
speculate regarding the perceptions of the
tellers." Appellant’s Br. at 16. If a subjective
standard were the correct standard, then Mr.
Hart’s criticism would be accurate, but we have
already determined that the appropriate standard
is an objective one. For this reason, the court
did not request either party to offer any
evidence as to the tellers’ subjective beliefs.
Put simply, the court was able to assume the
perspective of the reasonable teller and render
its decision on the basis of the undisputed
facts.

  Having determined that the district court
applied the correct standard, we now consider
whether the three-level enhancement was
appropriate based on the facts of this case.
Whether a reasonable person, under the
circumstances of the robbery, would have believed
that the objects Mr. Hart brandished were a bomb
is a factual inquiry by the district court to be
reviewed under a clear error standard. See
Carbaugh, 141 F.3d at 792-93. During each
robbery, Mr. Hart placed a package in front of
the teller and warned the bank employee(s) that
the package contained a bomb and that death was
an imminent possibility. Mr. Hart intended to
create the illusion that he possessed a bomb,
and, under the circumstances, his threats were
credible. The packages that Mr. Hart possessed
were certainly capable of holding explosive
devices and, of course, the tellers had no way of
knowing what they actually contained.
Furthermore, there were no "unusual mitigating
circumstances that would have deprived [Mr.
Hart’s statements] of [their] ordinary and
intended meaning." Raszkiewicz, 169 F.3d at 468.
His words and gestures were calculated to make
the tellers believe that a bomb was concealed
within the package, and that Mr. Hart would not
hesitate to detonate the explosive if his demands
were not met. Although it is true that a robber
"may be more likely to shoot a gun than to
detonate a bomb, because the explosion is apt to
injure or kill everyone in the vicinity," it is
also true that "willingness to expose oneself to
injury may persuade the teller that the robber is
a madman, willing to go to any extreme if
compliance is not forthcoming." United States v.
Bomski, 125 F.3d 1115, 1118 (7th Cir. 1997).

  In light of the Guideline’s clear commentary and
the precedent in our sister courts, we see no
reason why a defendant who brandished an object
which reasonably appeared to be, but was not in
fact, a dangerous weapon should not receive a
three-level enhancement under sec. 2B3.1(b)(2)(E)
for brandishing, displaying or possessing a
dangerous weapon merely because the object he
brandished did not have the intrinsic appearance
of a dangerous weapon. It should go without
saying that the appearance of dangerousness is
determined by viewing the object, not in
isolation, but in the context of the offense.
When the tellers were warned by Mr. Hart that the
packages contained a bomb, they were no longer
seeing a lunch box or a shoe box wrapped inside
of a paper bag; they were seeing a bomb.
Accordingly, the district court’s conclusion that
Mr. Hart brandished, displayed or possessed an
object that appeared to be a dangerous weapon was
not in any way clearly erroneous.

Conclusion

  For the foregoing reasons, we affirm the
judgment of the district court.

AFFIRMED




/1 See United States v. Purchess, 107 F.3d 1261,
1265 (7th Cir. 1997); United States v. Hammick,
36 F.3d 594, 597 (7th Cir. 1994); United States
v. Atkinson, 979 F.2d 1219, 1222 (7th Cir. 1992).

/2 See United States v. Carbaugh, 141 F.3d 791, 792-
93 (7th Cir.), cert. denied, 525 U.S. 977 (1998);
Hammick, 36 F.3d at 597; United States v.
Johnson, 997 F.2d 248, 255 (7th Cir. 1993).

/3 See Hammick, 36 F.3d at 597; United States v.
Rosalez-Carter, 19 F.3d 1210, 1218 (7th Cir.
1994).

/4 In Souther, 2000 WL 992230 at *6, the Fourth
Circuit explicitly declined to determine whether
the appearance of the object as a dangerous
weapon must be determined from an objective or a
subjective standard. The court held that a
robber’s hand resting in his coat pocket may
constitute the possession of an object that
appeared to be a dangerous weapon. See id. at *2.
The court reasoned that, when the robber
presented the teller with a note stating that he
had a gun and placed his hand in his coat pocket,
he created the appearance that he had a gun in
his pocket. See id. Notably, the Fourth Circuit
made this determination even though the defendant
"did not actually possess a weapon or any other
inanimate object that might be mistaken for a
weapon . . . [or] . . . simulate the presence of
a weapon with his hands, fingers, or other
object, beyond the simple placement of his hands
into his coat pockets." Id. at *1. The court
explained that it would uphold the imposition of
the enhancement under either an objective or a
subjective standard because the teller reasonably
believed that the robber possessed a dangerous
weapon. See id. at *6.

/5 This conclusion is further supported by related
precedent in this circuit. We routinely have
applied an objective standard in cases addressing
a comparable two-level enhancement under sec.
2B3.1(b)(2)(F). See United States v. Raskiewicz,
169 F.3d 459, 468 (7th Cir. 1999); Carbaugh, 141
F.3d at 794; United States v. Hunn, 24 F.3d 994,
998 (7th Cir. 1994). Subsection (F) requires
sentencing courts to impose a two-level
enhancement if the defendant made "a threat of
death" during the course of a robbery. See
U.S.S.G. sec. 2B3.1(b)(2)(F) & comment. (n.6). In
Raskiewicz, we held that a menacing gesture, such
as pointing an unknown object at the victim, may
constitute a threat of death "as long [as] it was
one that would put a reasonable person in fear of
death in the circumstances and as long as there
were no unusual mitigating circumstances that
would have deprived the gesture of its ordinary
and intended meaning." Raskiewicz, 169 F.3d at
468. Similarly, in Carbaugh, we held that the
statement "’I have a gun,’" without more, may
constitute a threat of death and that "the proper
focus is on the perspective of the reasonable
teller." Carbaugh, 141 F.3d at 794. Likewise, in
Hunn, we concluded that sentencing courts "should
apply an objective test, what a ’reasonable’
victim would read from the robber’s conduct."
Hunn, 24 F.3d at 998.
