                                                                        [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                            FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                                                    JUNE 6 2000
                                                                 THOMAS K. KAHN
                                                                      CLERK
                                         No. 99-2060

                         D. C. Docket No. 98-00080-3-CR-LAC


UNITED STATES OF AMERICA,

                                                                     Plaintiff-Appellee,

                                            versus

MARVIN LYNE BATES,

                                                               Defendant-Appellant.



                      Appeal from the United States District Court
                          for the Northern District of Florida

                                        (June 6, 2000)


Before DUBINA and BLACK , Circuit Judges, and BECHTLE*, Senior District
Judge.
__________________
*Honorable Louis C. Bechtle, Senior U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.

DUBINA, Circuit Judge:
      Marvin Lyne Bates (“Bates”) pled guilty to bank robbery, in violation of 18

U.S.C. § 2113(a). The district court sentenced Bates to 78 months imprisonment,

imposed a three-level enhancement to his base offense level for “brandish[ing],

display[ing], or possess[ing]” a dangerous weapon, pursuant to U.S.S.G. §

2B3.1(b)(2)(E), and a two-level enhancement for carjacking, pursuant to U.S.S.G.

§ 2B3.1(b)(5). Bates contends that the district court erred in applying the three-

level enhancement because he did not possess a dangerous weapon when he

committed the bank robbery. Although Bates was unarmed, he simulated the

possession of a dangerous weapon by reaching into his pants waist band during the

bank robbery. Therefore, under the unique circumstances of this case, we affirm

the district court’s imposition of the three-level enhancement, pursuant to U.S.S.G.

§ 2B3.1(b)(2)(E). We also affirm the district court’s imposition of the two-level

enhancement, pursuant to U.S.S.G. § 2B3.1(b)(5), because, under the facts of this

case, Bates attempted to take a motor vehicle from a person by force and violence

or by intimidation. We remand the case to the district court, however, to correct

the written judgment to accord with the oral pronouncement of sentence.




                                I. BACKGROUND


                                          2
      Bates entered a branch of SouthTrust Bank in Pensacola, Florida, to cash a

blank check. When the teller informed Bates that she was unable to cash the

check, Bates gave her a yellow plastic bag and said, according to the teller, “give

me your money.” (PSI ¶ 5). The teller began to pull out her “bait bills” when she

heard Bates say, “Listen lady, don’t mess with me; don’t make me hurt you.” (Id.

¶ 6). The teller then observed Bates reach with his right hand into his pants waist

band area, clearly implying and simulating the presence of a weapon. The teller

stated that she was fearful that Bates was reaching for a gun, so she did not provide

the “bait bills.” The teller handed Bates an undisclosed amount of money and

Bates departed the bank. (Id.). The teller’s supervisor, who witnessed the robbery,

reported that Bates looked at the victim teller and said, “Lady, are you crazy,” then

he reached into his pocket and uttered something like, “I’ll kill you.” (Id. ¶ 7).

The bank’s video camera recorded the robbery and confirmed the teller’s account

of the crime.

      The teller’s supervisor saw Bates leaving and reported a description of the

getaway car and its license plate to the police. Police discovered the car at a

nearby convenience store and arrested Bates as he ran into the backyard of a

neighboring home. (Id. ¶ 9, 10). The resident of that home later found the entire




                                           3
proceeds of the robbery hidden in her backyard and reported this finding to the

authorities.

      During the investigation, Charles Parazine (“Parazine”) reported to police

that on the day of the bank robbery, while he sat on his front porch, Bates ran onto

his porch and demanded his car keys. (Id. ¶ 12). When Parazine told Bates that his

keys were in his house, Bates grabbed him by the arm and forced him inside.

Parazine led Bates to a dresser and pulled out a handgun. Bates ran out of the

house. (Id.).

      Following his guilty plea, the district court sentenced Bates. During the

sentencing, the district court imposed a three-level enhancement for possession of a

dangerous weapon pursuant to U.S.S.G. § 2B3.1(b)(2)(E), and an additional two-

level enhancement for carjacking pursuant to § 2B3.1(b)(5). Bates objected to both

enhancements, but the district court overruled the objections and sentenced Bates

to the upper end of the guideline range – 78 months. (R1-20-15).



                                II. DISCUSSION

      A. Section 2B3.1(b)(2)(E) Enhancement

      Bates objected to the Presentence Investigation Report (“PSI”)

recommending a three-level enhancement for possession of a dangerous weapon


                                          4
during the commission of a robbery pursuant to § 2B3.1(b)(2)(E). He conceded

that a two-level enhancement pursuant to § 2B3.1(b)(2)(F) would be appropriate

since he made a threat to the teller, but argued that subsection (E) did not apply

because he did not brandish, display, or possess a weapon or an object that could

be perceived as a weapon. The government responded that no difference exists

between simulating a weapon and simulating the presence of a weapon because

each creates the risk that law enforcement will respond with violence, thereby

increasing the risk to everyone involved. The district court overruled Bates’s

objection, finding that “the purpose of that enhancement is the threat, the indication

of a weapon.” (R3-8).

      Bates challenges the district court’s ruling on appeal, arguing that the

requirement for the dangerous weapon enhancement cannot be satisfied without the

presence of an actual weapon or an object that can be perceived as a weapon. We

disagree.

      Section 2B3.1(b)(2)(E) of the sentencing guidelines provides that during the

commission of a bank robbery, the district court should enhance the base offense

level “if a dangerous weapon was brandished, displayed, or possessed.” The

commentary provides that “[w]hen an object that appeared to be a dangerous

weapon was brandished, displayed, or possessed, treat the object as a dangerous


                                          5
weapon for the purposes of subsection (b)(2)(E).” U.S.S.G. § 2B3.1, comment.

(n.2); see United States v. Miller, ___ F.3d ___, ___ (No. 99-12886, March 13,

2000, 11th Cir. 2000), slip op. at 1596 (“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.”).

      In this circuit, the critical factor for the application of § 2B3.1(b)(2)(E) is

whether the defendant intended the appearance of a dangerous weapon. See

United States v. Woods, 127 F.2d 990, 993 (11th Cir. 1997); United States v.

Vincent, 121 F.3d 1451 (11th Cir. 1997). For example, in Vincent, we concluded

that a district court properly enhanced a sentence pursuant to subsection (E) where

the “victim of a robbery was intimidated by the placing of a hidden object in her

side.” 121 F.3d at 1452. We reached that conclusion even though the victim did

not see the object possessed by the defendant. See id. at 1455. In arriving at that

decision, we agreed with the Third Circuit’s rationale in United States v. Dixon,

982 F.2d 116, 122 (3rd Cir. 1992), “that the danger of a violent response that can

flow from pretending to brandish, display, or possess a simulated weapon in

perpetrating a robbery is just as real whether the object is a toy gun, or a concealed

body part.” Vincent, 121 F.3d at 1455. Therefore, we held that a three-level


                                           6
enhancement was justified “by the threat of a violent or deadly confrontation that

can be precipitated by simulating the possession of a dangerous weapon.” Id.

      Similarly, in United States v. Shores, 966 F.2d 1383 (11th Cir. 1992), we

stated that possession of a toy gun during the commission of a bank robbery

constitutes “brandish[ing], display[ing], or possess[ing]” a dangerous weapon

under the sentencing guidelines, as long as the toy gun “‘appears’ to be a

dangerous weapon.” Id. at 1387. We stated that possession of a toy gun, just as an

unloaded gun, is considered possession of a dangerous weapon because of its

potential to be dangerous.” Id. If someone detects a toy gun, he may react to it

with deadly force. Id. Thus, in Shores, as well as in Vincent and Woods, we

focused on the appearance of a dangerous weapon as well as the potential

dangerous consequences of such appearance.

      Applying our precedents to the present case, we conclude that the district

court correctly applied the three-level enhancement. Bates simulated possession of

what appeared to be a dangerous weapon. When Bates reached into his pants

waist band, the victim teller perceived Bates to be reaching for a weapon. See

Woods, 127 F.3d at 993 (imposing subsection (E) enhancement based on the

victim’s perception that the defendant possessed a gun during the commission of

the robbery). Even though the victim teller never saw a dangerous object, the


                                         7
district court’s imposition of the three-level enhancement is proper because the

definition of “possess” does not require an object to be visible in order to be

possessed. See Vincent, 121 F.3d at 1455 (citing United States v. Johnson, 37 F.3d

1352, 1354 (9th Cir. 1994)). Because Bates’s hand simulated possession of what

appeared to be a dangerous weapon, and the victim teller perceived Bates to

possess a dangerous weapon, we affirm the district court’s imposition of the three-

level enhancement pursuant to § 2B3.1(b)(2)(E).1

       B. Section 2B3.1(b)(5) Enhancement

       Bates objects to the district court’s imposition of the two-level enhancement

for carjacking during the commission of a robbery pursuant to § 2B3.1(b)(5).

Bates contends that the sentencing guideline commentary “is inconsistent with the

federal statute which it seeks to implement” and that the “guidelines Commission

has neglected to amend the commentary to be consistent with the statutory

amendment adding specific intent as an element.” (Appellant’s Brief at 22).

Relying on Stinson v. United States, 508 U.S. 36, 38 (1993), which held that



       1
          Bates also makes another unpersuasive argument. He claims that his action of placing
his hand in his pants waist band was a “gesture,” as noted in the commentary to U.S.S.G. §
2B3.1(b)(2)(F). He contends that if this court upholds his enhancement under subsection (E), the
“gesturing” would be written out of subsection (F), thereby nullifying that subsection. We find
the “gesturing” contemplated by subsection (F) distinct from Bates’s “gesturing.” The
“gesturing” contemplated in subsection (F) in no way simulates the possession of a dangerous
weapon as required under subsection (E). See U.S.S.G. § 2B3.1, comment. (n.6).

                                               8
“commentary in the Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline,” Bates argues

that the commentary lacks authority because it is inconsistent with the federal

statute. Therefore, he asserts that the district court erred in imposing the two-level

carjacking enhancement.2

       At the time guideline section 2B3.1(b)(5) was written, the statute

criminalizing carjacking defined the crime as

       [while] possessing a firearm as defined by section 921 of this title,
       tak[ing] a motor vehicle that has been transported, shipped, or
       received in interstate or foreign commerce from the person or
       presence of another by force and violence or by intimidation, or
       attempt[ing] to do so.

18 U.S.C. § 2119 (1992). With that basis, the guidelines defined carjacking as the

“taking or attempted taking of a motor vehicle from the person or presence of

another by force and violence or by intimidation.” U.S.S.G. § 2B3.1(b)(5),

comment. (n.1). In 1994, Congress amended 18 U.S.C. § 2119 by substituting

“with the intent to cause death or serious bodily harm” for “possessing a firearm as

defined in section 921 of this title.” Violent Crime Control & Law Enforcement



       2
          The government responds that Bates abandoned this argument because he failed to
address it at the sentencing hearing. Having reviewed the record, we reject this argument.

                                              9
Act of 1994, Pub. L. No. 103-322, § 60003(a)(14), 108 Stat. 1796, 1970 (1994).

The Sentencing Commission has not amended the guideline definition of

carjacking to reflect the addition of the specific intent requirement to the statute.

See U.S.S.G. § 2B3.1(b)(5), comment. (n.1).

      In overruling Bates’s objection to the enhancement, the district court did not

directly rule on the specific intent conflict between the statute and the guideline.

We, too, find it unnecessary to discuss the conflict. First, the Sentencing

Commission has had ample time to alter the guidelines to comport with the

amended statute, but has not changed the guidelines. In contrast, many guideline

sections cite to a specific federal statute. See e.g., U.S.S.G. § 2A2.1, comment.

(n.2), § 2A3.4, § 2A6.2, comment. (n.1), § 2B3.3, comment. (n.1), § 2L1.2,

comment. (n.1), and § 2B3.1(c). Thus, if the Sentencing Commission had intended

the definition of carjacking for purposes of U.S.S.G. § 2B3.1 to mirror the statute,

it would amend it to refer specifically to the carjacking statute. Second, we note

that Bates was not charged under the carjacking statute. Instead, the district court

enhanced Bates’s sentence for attempting a carjacking during the commission of

the bank robbery. See generally United States v. Morris, 139 F.3d 582, 584 (8th

Cir. 1998) (statute is controlling for the actual offense, but the guidelines

commentary controls for the purpose of determining the guideline sentence).


                                           10
      Therefore, it is irrelevant whether a specific intent requirement is necessary

because the facts support both the guidelines definition and the statutory definition

of carjacking. By demanding the car keys, grabbing Parazine’s arm, and forcing

him into the house, Bates attempted to take Parazine’s car by using force and

violence or by intimidation. This satisfies both definitions. Accordingly, for these

reasons, we affirm the district court’s imposition of the two-level enhancement

pursuant to U.S.S.G. § 2B3.1(b)(5).

      C. Supervised Release

      At the sentencing hearing, the district court unambiguously announced

Bates’s term of supervised release as five years. (R3-13). The written judgment,

however, states the term of supervised release as three years. (R1). When a

sentence pronounced orally and unambiguously conflicts with the written order of

judgment, the oral pronouncement governs. See United States v. Khoury, 901 F.2d

975, 977 (11th Cir. 1990). Therefore, we remand to the district court with

instructions to correct the written judgment to accord with the oral pronouncement

of sentence. See Fed. R. Crim. P. 36; Khoury, 901 F.2d at 977.



                               III. CONCLUSION




                                         11
      We affirm the district court’s imposition of the three-level enhancement

pursuant to U.S.S.G. § 2B3.1(b)(2)(E), and the two-level enhancement pursuant to

U.S.S.G. § 2B3.1(b)(5). We remand to the district court to correct the written

judgment to accord with the oral pronouncement of sentence.

      AFFIRMED in part, and REMANDED.




                                        12
BECHTLE, Senior District Judge, dissenting:

      As set forth in the majority opinion, Bates was sentenced to 78 months

imprisonment after pleading guilty to bank robbery, in violation of 18 U.S.C. §

2113(a). I join my colleagues in affirming the district court's imposition of the two

level enhancement of Bates's sentence pursuant to U.S.S.G. § 2B3.1(b)(5) for

carjacking during the commission of a robbery and in remanding the case to the

district court to correct the written judgment to accord with the oral pronouncement

of sentence. However, I find myself having to disagree with my colleagues

regarding the feature of this appeal that addresses the district court's imposition of

a three level enhancement of Bates's sentence pursuant to U.S.S.G. §

2B3.1(b)(2)(E).

      It is undisputed that Bates should have received at least a two level

enhancement of his sentence pursuant to U.S.S.G. § 2B3.1(b)(2)(F) because he

made a threat to the bank teller. It is also undisputed that Bates did not have an

object in his possession or under his control which was either "brandished,

displayed, or possessed." U.S.S.G. § 2B3.1(b)(2)(E). In my view, U.S.S.G. §

2B3.1(b)(2)(E) and the decisions interpreting this section require the presence of

some object that can be perceived as a weapon. See United States v. Vincent, 121

F.3d 1451, 1455 (11th Cir. 1997) ("[W]e hold that a 3 level enhancement is proper


                                          13
when a robber uses a finger or some other hard object to cause the victim to

believe that it is a dangerous weapon.") (emphasis added).

      All the decisions relied upon by the majority are cohesive in their

application of U.S.S.G. § 2B3.1(b)(2)(E) in that the defendant employed an

inanimate object in the commission of the crime. See United States v. Woods, 127

F.3d 990 (11th Cir. 1997) (affirming enhancement where "victim reported having

an object placed in her side during the robbery and perceiving that object to be a

weapon"); Vincent, 121 F.3d at 1454-55 (same); United States v. Shores, 966 F.2d

1383, 1387-88 (11th Cir. 1992) (affirming enhancement where defendant

possessed toy gun) ; United States v. Dixon, 982 F.2d 116, 122 (3d Cir. 1992)

(affirming enhancement where defendant used hand covered by towel which

appeared to be gun). Recently, this circuit restated the primary importance of an

object in imposing an enhancement under U.S.S.G. § 2B3.1(b)(2)(E): "[b]ased on

the plain language of this commentary [to the Guideline], we have recognized that

objects which appear to be dangerous weapons should be treated for sentencing as

if they actually were dangerous weapons." United States v. Miller, 206 F.3d 1051,

1052 (11th Cir. 2000) (emphasis added) (citing cases).

      The legislature drew the line for the imposition of the enhancement under

U.S.S.G. § 2B3.1(b)(2)(E) at the point where the evidence demonstrated that the


                                         14
perpetrator possessed a weapon or an object. Of all the cases that have spoken to

this issue, the Third Circuit's decision in United States v. Dixon is the one that goes

up to that line but not across it.1 By upholding the three level enhancement based

on the record in this case, the majority crosses that line.2 The mistake that I think



       1
          In Dixon, the Third Circuit addressed the argument regarding the requirement of some
object in order to impose a three level enhancement under U.S.S.G. § 2B3.1(b)(2)(E):

       Because [Dixon's aider and abettor] did not possess any "object" other than the
       towel concealing her hand, Dixon asserts that she could not possibly have
       "brandished, displayed, or possessed" an "object that appeared to be a dangerous
       weapon." Dixon's argument is unavailing. [Dixon's aider and abettor's] hand is an
       object. Concealed by the towel and pointed around the bank, it fooled the bank
       tellers into thinking she had a dangerous weapon. The object that was her hand,
       together with the object covering it, the towel, appeared to them to be a weapon.

982 F.2d at 122. Unlike the situation in Dixon, there is nothing in the instant record that
suggests that when Bates reached into his pants waistband, his pants waistband area objectively
appeared to have a weapon or object that appeared to be a weapon stored therein. Rather, the
instant record contains only evidence of Bates's reaching into his pants waistband, coupled with
the bank teller's subjective belief that Bates was reaching for a gun.
       2
           In United States v. Taylor, the defendant handed the bank teller a note stating that this
was a holdup and that he had a gun in the waistband of his pants. United States v. Taylor, 960
F.2d 115, 116 (9th Cir. 1992). The defendant pulled up his shirt, revealing a T-shirt. Id. Then,
the defendant pulled his T-shirt tightly, such that the teller "saw the clear outline of a gun
handle." Id. The Ninth Circuit upheld an enhancement under the Guideline. Id. Taylor is
instructive in that it reveals what is missing from the instant record in order to uphold an
enhancement under U.S.S.G. § 2B3.1(b)(2)(E). In Taylor, the bank teller viewed the clear
outline of an object which appeared to be a gun handle. 960 F.2d at 116. In the instant matter,
the bank teller was only "fearful" that Bates was reaching for a gun.
        I agree with the majority that where a victim never saw a dangerous object, a three level
enhancement may still be imposed because "the definition of 'possess' does not require an object
to be visible in order to be possessed." Vincent, 121 F.2d at 1455 (citing United States v.
Johnson, 37 F.3d 1352, 1354 (9th Cir. 1994)). My disagreement with the majority is that
whether or not the dangerous object is actually perceived by the victim, U.S.S.G. §
2B3.1(b)(2)(E) still requires the presence of some object which has the objective appearance of a
dangerous weapon.

                                                15
is being made here by the majority is that they are reading into U.S.S.G. §

2B3.1(b)(2)(E) the notion that whether or not the perpetrator possessed a weapon

should be determined from the vantage point of the subjective belief of the victim

rather than from the vantage point of an objective assessment of the evidence

associated with the defendant.3 See, e.g., United States v. Woodard, 24 F.3d 872,

874 (6th Cir. 1994) (applying objective standard in determining whether defendant

appeared to possess dangerous weapon). Neither the language of the statute nor

the reasoning of the decisions support the majority's view. I respectfully dissent.




       3
          It could not be seriously contended that in order for a two level enhancement to stand
under U.S.S.G. § 2B3.1(b)(2)(F) for threat of death, that the victim's subjective belief that such a
threat was made, when in fact, the evidence shows that no threat was made, would support such
an enhancement. A three level enhancement under U.S.S.G. § 2B3.1(b)(2)(E) should be no
different. A perception by the victim that the perpetrator possessed a weapon or object should
not support an enhancement if, in fact, the evidence shows that the perpetrator had no weapon or
object.

                                                 16
