                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JUL 1 2003
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,

    v.                                                    No. 02-6234
                                                     (D.C. No. CR-02-38-C)
    GREGORY W. ABBOTT, a/k/a                              (W.D. Okla.)
    Christopher Derek Abbott, Greg W.
    Abbott, Gregory Williard Abbott,
    Gregory Willard Abbott, Michael
    Kellogg and Greg Abbott,

                 Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, PORFILIO and BALDOCK , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Gregory W. Abbott appeals the district court’s enhancement of

his sentence by three points for possessing or brandishing a dangerous weapon.

Because the district court did not err in applying the guidelines to increase

defendant’s sentence, we affirm.

      In February 2002, defendant entered a bank in Oklahoma and handed the

teller a note stating “This is a robbery! Hand over all cash. Please don’t cause

anyone to be hurt!”   See Defendant’s Motion to Show Cause, Ex. 2. During the

robbery, defendant kept his right hand at his waistband, partially obscured by his

jacket. At sentencing, the bank teller testified that defendant appeared to have his

hand on an object with a black handle, and that when she hesitated he indicated

that he had something at his waist. The bank security photos show defendant’s

hand at his waist, obscured by his jacket, throughout the robbery, and in one photo

he appears to emphasize his hand.   See Anders Br., Ex. C.

      Applying § 2B3.1(b)(2)(E) of the United States Sentencing Guidelines

Manual (USSG), the district court increased defendant’s offense level by three

levels for possessing or brandishing a dangerous weapon during the robbery. The

district court found that defendant’s conduct, coupled with his threat of harm in

the note, created the impression that he had a weapon capable of inflicting death or

serious bodily injury.




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       Defendant challenges this ruling. His appointed counsel has filed an        Anders

brief and a motion to withdraw from the case.     See Anders v. California , 386 U.S.

738, 744 (1967) (permitting counsel who considers an appeal to be frivolous to

advise the court, request permission to withdraw, and submit a brief referring to

portions of the record that arguably support the appeal). As required, copies of the

Anders brief and the motion to withdraw were provided to defendant, who has

filed a response.   See Defendant’s Motion to Show Cause. Pursuant to our duty

under Anders , we have conducted an independent review of the record and find no

arguable basis for reversing defendant’s sentence. Counsel is therefore granted

leave to withdraw, and we will not appoint a new attorney for defendant.         See id.

       The district court’s legal interpretation and application of the guidelines are

reviewed de novo . United States v. Farrow , 277 F.3d 1260, 1262 (10th Cir. 2002).

“However, we review factual findings underlying upward adjustments with

deference, overturning them only upon a determination that the findings were

clearly erroneous or without factual support in the record such that our review

leaves us with the firm and definite conviction that a mistake has been made.”        Id.

(further quotation omitted).

       Defendant argues that the district court erred in enhancing his sentence

because it is undisputed that he did not possess a “firearm” during the robbery.

Defendant’s Motion to Show Cause at 1-6. Defendant’s sentence was not


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enhanced, however, for possessing a “firearm,” which requires a five-level

enhancement. See USSG § 2B3.1(b)(2)(C). Instead, his offense level was

increased by three levels for possessing or brandishing a dangerous weapon.     Id. at

§ 2B3.1(b)(2)(E). Application Note 2(B) to this section specifically states that a

“dangerous weapon” includes an object used by defendant “in a manner that

created the impression that the object was an instrument capable of inflicting death

or serious bodily injury ( e.g. , a defendant wrapped a hand in a towel during a bank

robbery to create the appearance of a gun)”.

      In Farrow , we considered a similar situation and held that the defendant’s

“concealed hand may be an object which potentially triggers the three-level

enhancement under § 2B3.1(b)(2)(E).” 277 F.3d at 1267. There, defendant kept

his hand in his pocket and told a bank teller not to make a scene or he would do

something reckless. Although defendant did not actually have a gun, we approved

the court’s three-level increase to defendant’s sentence because his conduct and

threats created the impression that he had a dangerous weapon.      See also United

States v. Dixon , 982 F.2d 116, 124 (3d Cir. 1992) (approving a three-level

enhancement for a defendant who covered her hand with a towel to simulate a

weapon); United States v. Souther , 221 F.3d 626, 629-30 (4th Cir. 2000) (holding

defendant’s hand appeared to be a dangerous weapon because it was concealed in

his coat pocket and because he told the teller via the note that he possessed a gun).


                                           -4-
       The policy underlying these cases is that even the perception of a dangerous

weapon has the potential to add significantly to the danger of injury or death. As

explained in Farrow , “[d]uring the course of a robbery, people confronted with

what they believe to be a dangerous weapon often find their perception impaired

because of fear and the threat of violence. That perceived fear and threat can

itself trigger a violent and even deadly response.” 277 F.3d at 1267 (further

quotation omitted).

       In this case, the record supports the district court’s factual finding that

defendant’s concealed hand and threatening note created the impression that he

had a dangerous weapon. Thus it cannot be argued that the district court

committed clear error in increasing defendant’s sentence by three levels under

§ 2B3.1(b)(2)(E) of the Sentencing Guidelines.

       Defendant also argues that his attorney was ineffective both at trial and on

appeal. We have held that a direct criminal appeal is not the appropriate

proceeding in which to raise claims of ineffective assistance of counsel.     See

United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). Such claims are

more appropriately raised in a 28 U.S.C. § 2255 proceeding, to permit full

development of the facts in the district court.     See Massaro v. United States , 123

S. Ct. 1690, 1694-95 (2003);     Galloway , 56 F.3d at 1240.




                                              -5-
      Appointed counsel’s Motion to Withdraw is GRANTED. Defendant’s

Motion to Amend and Motion to Show Cause are DENIED. The judgment of the

district court is AFFIRMED.



                                             Entered for the Court



                                             John C. Porfilio
                                             Circuit Judge




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