08-1007-cr
USA v. Pope



                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  August Term, 2008

(Argued: January 16, 2009                                                         Decided: February 3, 2009)

                                                Docket No. 08-1007-cr

UNITED STATES OF AMERICA ,

                  Appellee,

                  v.

STEVEN W. POPE , also known as Steven Willsam, also known as Stephen Pope, also
known as Steven McQueen, also known as Steve W. Pope, also known as Stern W. Pope,
also known as William S. Pope,

                  Defendant-Appellant.


Before: CABRANES and LIVINGSTON , Circuit Judges, and EATON , Judge.*

         Defendant Steven W. Pope appeals from a February 28, 2008 judgment of the United States

District Court for the Eastern District of New York (Sandra L. Townes, Judge) convicting him,

following a guilty plea, of two counts of bank burglary, in violation of 18 U.S.C. § 2113(a). The District

Court sentenced defendant principally to seven years of imprisonment pursuant to an upward

departure. On appeal, Pope makes two central arguments: (1) that his sentence was procedurally

unreasonable because the District Court erroneously applied a two-level enhancement to Pope’s base

offense level under Section 2B2.1(b)(4) of the United States Sentencing Guidelines, for possession of a

dangerous weapon; and (2) that the non-guidelines sentence was substantively unreasonable because it

was more than twice the maximum recommended sentence under the Guidelines and the variance was

based only on Pope’s criminal history. We hold today that Section 2B2.1(b)(4) requires only possession

         *
          The Honorable Richard K. Eaton, Judge of the United States Court of International Trade, sitting by
designation.
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of a dangerous weapon, and therefore applies even if a defendant did not use the object in question as a

weapon in the course of committing the crime. We conclude that the sentence was both procedurally

and substantively reasonable.

         Affirmed.

                                       JAMES GATTA , Assistant United States Attorney (Benton J.
                                             Campbell, United States Attorney, on the brief, Emily
                                             Berger, Assistant United States Attorney, of counsel),
                                             Office of the United States Attorney for the Eastern
                                             District of New York, Brooklyn, NY, for Appellee.

                                       COLLEEN P. CASSIDY , Federal Defenders of New York, Inc.,
                                             Appeals Bureau, New York, NY, for Defendant-Appellant.


JOSÉ A. CABRANES, Circuit Judge:

         Defendant Steven W. Pope appeals from a February 28, 2008 judgment of the United States

District Court for the Eastern District of New York (Sandra L. Townes, Judge) convicting him,

following a guilty plea, of two counts of bank burglary, in violation of 18 U.S.C. § 2113(a). The District

Court sentenced defendant, pursuant to an upward departure, to seven years of imprisonment, three

years of supervised release, restitution of $2,244.55, and a special assessment of $200. On appeal, Pope

makes two central arguments: (1) that his sentence was procedurally unreasonable because the District

Court erroneously applied a two-level enhancement to Pope’s base offense level pursuant to Section

2B2.1(b)(4) of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), for possession of

a dangerous weapon; and (2) that the non-guidelines sentence was substantively unreasonable because it

was more than twice the maximum sentence under the Guidelines and was based only on Pope’s

criminal history. For the reasons set forth below, we conclude that the sentence was both procedurally

and substantively reasonable, and accordingly affirm the judgment of the District Court. We write to

clarify that U.S.S.G. § 2B2.1(b)(4) requires only possession of a dangerous weapon; it applies even if the

defendant did not use the object in question as a dangerous weapon in the course of committing the

crime.

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                                               BACKGROUND

        I.      Factual Overview

        On October 19, 2006, Pope burglarized a branch of Citibank in Brooklyn, New York. He was

among a group of individuals that entered the bank by cutting a hole in the fence between the bank and

the adjacent property, and breaking the bank’s rear window. They then forced open the safes located in

the bank’s teller area and stole approximately $1,078.78.

        On July 22, 2007, Pope burglarized a Chase Bank branch in Queens, New York. He and at

least one other person broke a side window of the bank, using a sledgehammer. They then stole

approximately $1,165.77 in coins from coin safes located in the bank’s teller area.

        Based upon the facts of these two burglaries, a federal grand jury in the Eastern District of New

York returned an indictment on August 2, 2007, charging Pope with two counts of bank burglary, in

violation of 18 U.S.C. § 2113(a), and two counts of bank theft, in violation of 18 U.S.C. § 2113(b). On

September 21, 2007, Pope pleaded guilty to the two counts of bank burglary, pursuant to a plea

agreement.

        In anticipation of sentencing, the United States Probation Office (“Probation Office”) prepared

a Presentence Investigation Report (“PSR”). The PSR set forth a base offense level of twelve for each

of the bank burglaries, pursuant to U.S.S.G. § 2B2.1(a)(2). (We note that the statutory maximum for

each count was twenty years. See 18 U.S.C. § 2113(a).) The PSR then applied, pursuant to U.S.S.G.

§ 2B2.1(b)(4), a two-level enhancement for possession of a deadly weapon because Pope had used a

sledgehammer to break into the Chase Bank branch during the July 22, 2007 burglary. Pursuant to

U.S.S.G. § 3D1.4, two points were added to reflect Pope’s conviction of two counts of burglary. The

adjusted, combined offense level for both burglaries was sixteen, which was then reduced by three

levels for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b). The final adjusted

offense level was calculated to be thirteen.



                                                    3
        The PSR also noted Pope’s extensive criminal history, and it assigned him fourteen criminal

history points for four prior convictions. First, on January 30, 1992, Pope was convicted of attempted

burglary of a pharmacy in Queens, New York. Second, on June 15, 1994, he was convicted of

attempted burglary of a beverage distribution center in Hempstead, New York. Third, on September

26, 2001, Pope was convicted of burglarizing a Rite Aid store in New York, New York. Fourth, on

May 30, 2001, he was convicted of attempted possession of dangerous contraband in prison. Pope

received three criminal history points for each of these four convictions, for a total of twelve points.

Furthermore, because he committed the 2006 and 2007 bank burglaries while still on parole for his

2001 burglary conviction, Pope was assigned two additional criminal history points, for an adjusted

total of fourteen points, establishing a criminal history category of VI. Finally, the PSR detailed

fourteen prior convictions, for crimes including attempted manslaughter and grand larceny, for which

Pope was not assessed any criminal history points because the offenses were remote in time.

        The recommended sentencing range in the PSR was thirty-three to forty-one months.



        II.      Sentencing

        On January 31, 2008, the District Court issued a notice to the parties that it was “contemplating

upwardly departing from the applicable Sentencing Guidelines range and imposing a non-Guideline

sentence of imprisonment for a period of seven (7) years on each Count to run concurrently.” Appellant’s App. at

54 (emphasis in the original). As grounds for this potential departure, the District Court listed, inter alia,

“the facts and circumstances surrounding the defendant’s arrest and underlying the instant indictment;

. . . the history and characteristics of the defendant; . . . to protect the public from further crimes of the

defendant; and . . . the likelihood of recidivism.” Id.

        By letter dated February 13, 2008, Pope, through counsel, objected to the Probation

Department’s inclusion of the two-level enhancement for possession of a dangerous weapon, on the

                                                        4
ground that the sledgehammer was not used or possessed as a weapon, but instead to facilitate the

burglary. Pope then argued that his appropriate base offense level was twelve, which corresponds to a

Guidelines range of thirty to thirty-seven months, and that he should be sentenced within that range.

In response to Pope’s objections, the Probation Office filed a February 19, 2008 addendum to the PSR.

In the addendum, the Probation Office maintained that the two-level enhancement should be applied

to Pope because “there is no question that a sledgehammer is capable of inflicting death or serious

bodily injury.” PSR Second Addendum of Feb. 19, 2008.

       At a sentencing hearing on February 20, 2008, defense counsel renewed his argument regarding

the two-level enhancement for the possession of a dangerous weapon while committing a burglary.

Defense counsel stated that “the sledgehammer, since it has other uses, obviously, it’s mostly used as a

tool, was not possessed as a weapon.” Appellant’s App. at 64. Defense counsel then argued that the

District Court should not impose a sentence above the applicable Guidelines range because, inter alia,

no one was harmed in the course of the burglaries, and accordingly, the seriousness of those offenses

was properly captured by the Sentencing Guidelines. He also argued that, with the exception of Pope’s

one conviction for attempted manslaughter, he had no history of violent crime and thus his criminal

history did not warrant an upward departure.

       Following these statements, and arguments made by the government, the District Court

imposed a sentence. The District Court accepted the PSR in its entirety. It then stated that it had

“considered the factors pursuant to 18 U.S.C. § 3[5]53(a)(1), the nature and circumstances of these

offenses, and the history and characteristics of this defendant.” Id. at 74. The District Court noted:




       [I]t’s just obvious to me that we need to protect the public from further crimes by this
       defendant, and this is the only way. . . . [H]e’s still, as you say, at forty-nine year old,
       committing burglaries. For that reason, it is my intent—and I will—sentence the

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        defendant above or outside of the Guideline range. I think the sentence is necessary for
        deterrence, if nothing else, and to protect the public from Mr. Pope.

Id. at 77-78. The District Court then sentenced Pope principally to two concurrent seven-year terms of

incarceration for the two counts of burglary. Pope filed a timely notice of appeal.



                                               DISCUSSION

        On appeal, Pope makes two central arguments. First, he argues that his sentence was

procedurally unreasonable because it was based upon a legally incorrect application of a two-level

enhancement to his base offense level for possession of a dangerous weapon. Second, Pope argues that

his non-guidelines sentence was substantively unreasonable because it was more than twice the

maximum recommended sentence under the Guidelines and, according to defendant, the departure was

based solely on Pope’s criminal history. Because we conclude that Pope’s sentence was both

procedurally and substantively reasonable, we affirm the sentence imposed by the District Court.



        I.      Standard of Review

        At the outset, we note that “[a] sentencing judge has very wide latitude to decide the proper

degree of punishment for an individual offender and a particular crime.” United States v. Cavera, 550

F.3d 180, 188 (2d Cir. 2008) (en banc). We review sentences only for “reasonableness,” United States v.

Booker, 543 U.S. 220, 262 (2005), for which we apply a “deferential abuse-of-discretion standard,” Gall

v. United States, 128 S. Ct. 586, 598 (2007); see generally Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (“A

district court has abused its discretion if it based its ruling on an erroneous view of the law or on a

clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the

range of permissible decisions.” (internal alteration, citations, and quotation marks omitted)). This

form of appellate review includes two components: procedural review and substantive review. Gall,

128 S. Ct. at 597. The procedural review focuses on whether any technical errors were made, including
                                                       6
(1) “failing to calculate (or improperly calculating) the Guidelines range,” (2) “treating the Guidelines as

mandatory,” (3) “failing to consider the [18 U.S.C.] § 3553(a) factors,” (4) “selecting a sentence based

on clearly erroneous facts,” or (5) “failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Id. The substantive review, in contrast,

assesses “‘whether the District Judge abused his discretion in determining that the § 3553(a) factors

supported’ the sentence imposed.” United States v. Jones, 531 F.3d 163, 170 (2d Cir. 2008) (quoting Gall,

128 S. Ct. at 600).

        With respect to the application of a specific sentencing enhancement, “we give due deference

to the district court’s application of the Guidelines to the facts.” United States v. Sicurella, 367 F.3d 82,

85 (2d Cir. 2004). That said, “we review issues of law de novo.” Id. In the case before us, we review the

District Court’s interpretation of U.S.S.G. § 2B2.1(b)(4), which is a legal issue. Accordingly, we review

the interpretation of U.S.S.G. § 2B2.1(b)(4) de novo.



        II.     Procedural Reasonableness: Application of U.S.S.G. § 2B2.1(b)(4)

        The Guidelines provide a two-level enhancement to a defendant’s base offense level “[i]f a

dangerous weapon (including a firearm) was possessed” in connection with a burglary. U.S.S.G.

§ 2B2.1(b)(4). The application notes to this provision state that the term “dangerous weapon” is

defined in the commentary to U.S.S.G. § 1B1.1. The application instructions found there define a

“dangerous weapon” as:

        (i) an instrument capable of inflicting death or serious bodily injury; or (ii) an object that
        is not an instrument capable of inflicting death or serious bodily injury but (I) closely
        resembles such an instrument; or (II) the defendant used the object in a manner that
        created the impression that the object was such an instrument (e.g. a defendant wrapped
        a hand in a towel during a bank robbery to create the appearance of a gun).

U.S.S.G. § 1B1.1, app. n. 1(D).




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        Pope does not dispute that he possessed a sledgehammer in the course of burglarizing the

Chase Bank branch on July 22, 2007. See Appellant’s App. at 63. Rather, Pope argues that the District

Court erred in applying the enhancement because a sledgehammer is “not inherently a weapon,” and

Pope did not use the sledgehammer as a weapon during the burglary. Appellant’s Br. at 15. His

argument is without merit.

        We have consistently “taken a broad view of the definition of ‘dangerous weapon’ under the

Sentencing Guidelines.” United States v. Agron, 921 F.2d 25, 26 (2d Cir. 1990). Application Note 1(D)

of U.S.S.G. § 1B1.1 states that a dangerous weapon need only be “an instrument capable of inflicting

death or serious bodily injury,” and a sledgehammer is capable of causing such harm. Accordingly, a

sledgehammer is a “dangerous weapon” under U.S.S.G. § 2B2.1(b)(4).

        We now must assess whether the fact that Pope had a dangerous weapon with him while he

was committing one of the burglaries is sufficient to trigger the two-level enhancement, pursuant to

U.S.S.G. § 2B2.1(b)(4). Section 2B2.1.(b)(4) of the Sentencing Guidelines states that the two-level

enhancement will apply if the dangerous weapon “was possessed.” When previously construing

different provisions of the Guidelines, we have stated that we will “giv[e] the Guidelines language its

plain meaning and force.” United States v. Sloley, 464 F.3d 355, 359 (2d Cir. 2006); see United States v.

Parnell, 524 F.3d 166, 171 (2d Cir. 2008). Cf. Universal Church v. Geltzer, 463 F.3d 218, 223 (2d Cir. 2006),

cert. denied, 549 U.S. 1113 (2007) (“Statutory interpretation always begins with the plain language of the

statute, assuming the statute is unambiguous.”). The same logic applies to the provision at hand, and

there can be nothing ambiguous about the provision’s meaning. The only question, then, is whether

Pope possessed the sledgehammer during the burglary. The record shows that the sledgehammer used

in the course of the burglary was recovered the next day at Pope’s apartment, see Appellant’s App. at 49,

and, as noted above, Pope does not deny that he possessed the sledgehammer during the burglary, see

id. at 63. The fact that he did not use the sledgehammer as a weapon is irrelevant to the issue of

                                                      8
possession. To hold otherwise would directly contradict the plain meaning of this provision of the

Guidelines, and would lead to absurd results. For example, a burglar could enter a bank carrying

several guns and explosives and remain exempt from the two-level sentencing enhancement so long as

those “tools of the trade” were used only to break open the safes. Accordingly, we hold that U.S.S.G.

§ 2B2.1(b)(4) requires only possession of a dangerous weapon, regardless of whether the dangerous

weapon was employed as such during the commission of a crime. Cf. United States v. Lavender, 224 F.3d

939, 941 (9th Cir. 2000) (holding that “[b]ecause [defendant] possessed a screwdriver during the [bank]

robbery, and a screwdriver is properly classified as a dangerous weapon, the district court did not err by

applying the enhancement to him,” regarding U.S.S.G. § 2B3.1(b)(2)(E), which applies “if a dangerous

weapon was brandished, displayed, or possessed”).

        Based on the facts of the case and the plain language of the applicable Sentencing Guidelines,

we hold that the District Court committed no procedural error in applying the two-level enhancement

for possession of a dangerous weapon.



        III.    Substantive Reasonableness

        We now turn to Pope’s contention that the imposition of a seven-year non-guidelines sentence

was substantively unreasonable because (1) it was more than twice the maximum sentence under the

Guidelines, and (2) it was based solely on Pope’s criminal history, according to defendant. At the

outset, we note that the Supreme Court held in Gall that when a sentence is outside the Guidelines

range, the reviewing court “may not apply a presumption of unreasonableness.” 128 S. Ct. at 597.

Rather, the reviewing court “may consider the extent of the deviation, but must give due deference to

the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id.

Moreover, we have never held that a district court’s particular reliance on a factor to justify departing

from the Guidelines is suggestive of unreasonableness; we have only said that “unjustified reliance upon

                                                      9
any one factor” suggests unreasonableness. United States v. Rattoballi, 452 F.3d 127, 137 (2d Cir. 2006)

(emphasis added). Generally, “[i]f the ultimate sentence is reasonable and the sentencing judge did not

commit procedural error in imposing that sentence, we will not second guess the weight (or lack

thereof) that the judge accorded to a given factor or to a specific argument made pursuant to that

factor.” United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006).

        As the record demonstrates here, the District Court fully considered the sentencing factors

listed in 18 U.S.C. § 3553(a). Both in its January 31, 2008 letter, and at the February 20, 2008

sentencing hearing, the District Court noted that it was considering not only the nature and

circumstances of the offense and the history and characteristics of Pope, but also the need for

deterrence and the need to protect the public from further crimes—all different factors enumerated

under 18 U.S.C. § 3553(a). Thus, contrary to defendant’s assertion, the District Court relied on

numerous factors to support its variance from the Guidelines range; the fact that the District Court’s

assessment of the weight of these factors was informed, in part, by Pope’s criminal history is entirely

appropriate. Defendant has presented us with no compelling reason to second guess the determination

of the District Court that these factors warrant a variance from the Guidelines of the magnitude

imposed here. Accordingly, we conclude that the District Court’s imposition of a seven-year sentence

was not substantively unreasonable, and that the Court did not abuse its discretion in imposing it.



                                             CONCLUSION

        For the reasons stated above, we hold that the District Court properly applied the two-level

enhancement pursuant to U.S.S.G. § 2B2.1(b)(4), and committed no error in considering defendant’s

extensive criminal record in departing upward from the applicable Guidelines range. Accordingly, we

conclude that Pope’s sentence was both procedurally and substantively reasonable, and the judgment of

the District Court is AFFIRMED.

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