                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2004

USA v. Wilson
Precedential or Non-Precedential: Precedential

Docket No. 03-2496




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                        PRECEDENTIAL   George S. Leone
                                       Sabrina G. Comizzoli (Argued)
        UNITED STATES                  Office of United States Attorney
       COURT OF APPEALS                970 Broad Street, Room 700
     FOR THE THIRD CIRCUIT             Newark, NJ 07102
          ____________                        Attorneys for Appellee
                                                    ____________
             No. 03-2496
            ____________                      OPINION OF THE COURT
                                                   ____________
   UNITED STATES OF AMERICA
                                       FISHER, Circuit Judge.
                   v.                          Defendant Walter W. Wilson, Jr.
                                       appeals from his judgment of sentence,
     WALTER W. WILSON, JR.,            arguing that the district court erred in
                                       holding that he “otherwise used” a fake
                  Appellant            bomb during a bank robbery rather than
            ____________               merely “brandishing” it, thus meriting a
                                       four-point offense level enhancement
           On Appeal from the          under U.S.S.G. § 2B3.1(b)(2). Because
       United States District Court    Wilson placed the bomb in close proximity
      for the District of New Jersey   to a bank teller and made explicit threats to
    (D.C. Criminal No. 03-cr-00068)    imminently detonate the bomb if the teller
              District Judge:          did not comply with his demands, Wilson
     Honorable Jerome B. Simandle      went be yond mere “brandishing.”
              ____________             Accordingly, Wilson “otherwise used” the
                                       fake bomb for purposes of U.S.S.G. §
       Argued February 25, 2004        2B3.1(b)(2). We will therefore affirm the
                                       judgment of the district court.
     Before: RENDELL, BARRY
                                                    I. Background
     and FISHER, Circuit Judges.
                                               On October 21, 2002, Wilson
         (Filed: May 27, 2004)         entered the Pennsville National Bank in
                                       Elmer, New Jersey. He was carrying a
Richard Coughlin                       backpack and a duffle bag, and had what
Lori M. Koch (Argued)                  he later claimed was a toy gun stuffed in
Office of Federal Public Defender      the waistband of his trousers.          The
800-840 Cooper Street, Suite 350       backpack contained a fake bomb made out
Camden, NJ 08102                       of a two-liter bottle, PVC pipe, duct tape,
       Attorneys for Appellant         and a toy cellular phone as a fake
                                       triggering device. Wilson approached a
                                       teller, saying “This is not a joke, give me
your money.” He moved his jacket aside                        Investigators identified Wilson’s
to display the handle of the toy gun.               fingerprints on the demand note and he
Wilson further stated, “I also have a bomb          was later arrested. On January 29, 2003,
that can be detonated by a cell phone, you          Wilson pled guilty to bank robbery, 18
have 40 seconds.” He put the backpack on            U.S.C. § 2113. The parties stated in a plea
the counter, approximately 18 inches in             agreement that they would stipulate at
front of the teller. Although the teller            sentencing that Wilson’s offense involved
could not recall whether the backpack was           a “dangerous weapon” or “dangerous
open or shut, she believed that the                 weapons,” triggering the specific offense
backpack contained a real bomb.                     characteristic enhancement under U.S.S.G.
                                                    § 2B3.1(b)(2). The parties reserved the
       Wilson handed the teller a note that
                                                    right to argue whether the enhancement
read (emphasis and misspellings in
                                                    would be three levels for “brandishing” or
original):
                                                    four levels for “otherwise using.”
       No Alarms!                                   A l t h o u g h t h e p r o b a ti o n o f f ic e r
                                                    r e c ommended only a thr e e- le v el
       You scream I shoot
                                                    enhancement for “brandishing,” the
       I have a Gun and a bomb is hookup            government requested a four-level
       to                                           enhancement for “otherwise using.”
       a phone you have 40 sec To Fill                      At the sentencing hearing on May
       This bag up                                  16, 2003, the district court concluded that
                                                    Wilson had not merely “brandished” the
       with untraceable money 100$. 50$.
                                                    fake bomb: “A brandishing would be
       20$
                                                    carrying the bomb in a gym bag in sight of
       NO REd DYES!    IF anybody                   the teller and saying: You know what that
       TRYS TO STOP ME                              is?” Rather, there were “multiple threats
                                                    contained in the note that this bomb would
       OR Follow ME I Push Redail And
                                                    be used imminently and that it would be
       Bank Blows UP!
                                                    used against this teller.” By “placing the
       NObody leves the Bank For 20 min             bomb device on the counter, explaining its
                                                    mechanism, which is that it would be
       I have pepole wAtching they will
                                                    detonated by phone, the common sense
       Be shot!
                                                    that the phone detonation would occur
       I have Nothing To Loose!                     almost instantaneously, and the fact that
                                                    the bomb was in direct proximity of the
        The teller put approximately $2,250
                                                    teller and therefore was directed at her if
in the duffle bag and Wilson left to join his
                                                    she failed to comply, satisfies the test.” In
wife and children, who were waiting in a
                                                    addition, the court held that the presence
car parked down the street.



                                                2
of the gun in Wilson’s pants made the                 is no doubt that the teller knew she would
bomb threat more credible.                            be blown up by this device within seconds,
                                                      and that what she saw made the threats
        Thus, stated the court, “[i]t’s the
                                                      concrete.” The court thus concluded that
equivalent of pointing a bomb at the teller”
                                                      Wilson had “otherwise used” the bomb,
or “the equivalent of taking the toy gun out
                                                      and applied a four-level enhancement.
and pointing it at the teller saying ‘I’ll pull
                                                      Wilson was sentenced to fifty-one months
this trigger if you don’t comply.’” The
                                                      of imprisonment, three years of supervised
defendant was essentially saying “‘I’ll
                                                      release, restitution of $2,254, and a special
detonate this bomb through the use of this
cell phone if you don’t comply.’”
Although the teller could not recall
whether the backpack was open or shut,
the court concluded that a picture of the             conceded the government, the photograph
crime scene showing an open backpack                  at question showed the contents of the bag
proved that it was “possible to see inside            not from the teller’s perspective, but from
the bag” and that the open bag was “what              the perspective of Wilson. Thus, it cannot
the teller saw.” 1 The court found “[t]here           be said that this particular photograph
                                                      proves whether the teller saw the contents
                                                      of the backpack.
       1
       The teller never actually testified.                   Recognizing this, in a post-brief
Rather, the U.S. Attorney described the               submission, the government included other
testimony that the teller would have                  photographs that had been put in evidence
provided had she testified. Although the              before the district judge. Some of these
teller could not recall whether the                   photographs show the backpack open from
backpack was open or shut, the                        the teller’s apparent point of view, with
government entered into evidence                      this opening due to an open zipper rather
photographs that it said had been taken               than to the cut made by the detective. The
before the bomb was disturbed. After                  government argues that these other
filing its brief in this appeal, the                  photographs support the district court’s
government discovered that the crime                  conclusion that the teller saw the contents
scene had in fact been disturbed. The                 of the backpack. For his part, Wilson
backpack had been cut open by a detective             objects to the district court’s use of the
from the New Jersey State Police                      photographs to determine what the teller
Arson/Bomb Unit to reveal its contents                saw because the teller could not remember
before at least some of the pictures were             whether the backpack was open or shut.
taken. Thus, the photograph relied upon                       We need not resolve this dispute.
by the district court did not show an                 As discussed infra, we base our conclusion
undisturbed crime scene, but instead                  on other undisputed evidence of record,
showed the backpack with a cut made after             and need not consider whether the teller
the crime was completed. Moreover,                    saw the backpack’s contents.

                                                  3
assessment of $100. This timely appeal                      We begin by examining the relevant
followed.                                           guideline, U.S.S.G. § 2B3.1, which
                                                    provides the base offense level for
              II. Discussion
                                                    robbery. Of particular relevance is the
        The issue before the Court is               spec ific offense characteristic for
narrow – whether Wilson “brandished” or             dangerous weapons:
“otherwise used” the fake bomb in
                                                           (A) If a firearm was discharged,
connection with the bank robbery.
                                                           increase by 7 levels; (B) if a
“Brandishing” merits a three-level
                                                           firearm was otherwise used,
enhancement, whereas “otherwise using”
                                                           increase by 6 levels; (C) if a
merits four. U.S.S.G. § 2B3.1(b)(2).
                                                           f ir e arm was brandished or
Wilson argues that in order to conclude
                                                           possessed, increase by 5 levels;
that he “otherwise used” a fake bomb, the
                                                           (D) if a dangerous weapon was
district court was required to find that he
                                                           otherwise used, increase by 4
“pointed the bomb at the victim while
                                                           levels; (E) if a dangerous weapon
issuing a specific threat or order.” The
                                                           was brandished or possessed,
government counters that Wilson made
                                                           increase by 3 levels; or (F) if a
specific verbal and written threats to the
                                                           threat of death was made, increase
teller, which along with the positioning of
                                                           by 2 levels.
his backpack, constituted “otherwise use”
of the fake bomb.                                   Id. § 2B3.1(b)(2) (emphasis in original). 2
        The district court had subject matter             It is undisputed that Wilson’s fake
jurisdiction pursuant to 18 U.S.C. § 3231.          bomb was a “dangerous weapon” for
We have jurisdiction of this timely appeal          sentencing purposes.3 Thus, we must
pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291. Our review of the district
court’s interpretation of the Sentencing                   2
                                                            Wilson was sentenced on May 16,
Guidelines is plenary. United States v.             2003, so we turn to the 2002 guidelines, as
Thomas, 327 F.3d 253, 255 (3d Cir.)                 amended as of that date. See U.S.S.G. §
(citing United States v. Day, 272 F.3d 216,         1B1.11(a) (unless the ex post facto clause
217 (3d Cir. 2001)), cert. denied, 124 S.           would be violated, “[t]he court shall use
Ct. 451 (2003). Determinations of fact are          the Guidelines Manual in effect on the
reviewed for clear error. Id. (citing United        date that the defendant is sentenced”).
States v. Carr, 25 F.3d 1194 (3d Cir.
                                                           3
1994)).     In addition, we “‘give due                     Wilson concedes that the fake
deference to the district court’s application       bomb and fake gun were “dangerous
of the guidelines to the facts.’” Id.               weapons” for guidelines purposes. Such
(quoting 18 U.S.C. § 3742(e)).                      concessions were proper – an object that
                                                    appears to be a dangerous weapon shall be
                                                    considered to be a dangerous weapon for

                                                4
determine whether the dangerous weapon                     person. Accordingly, although the
was “brandished” or “otherwise used.”                      dangerous weapon does not have to
The application notes to the Sentencing                    be directly visible, the weapon must
Guidelines provide definitions of                          be present.
“brandished” and “otherwise used:”
                                                           ....
       “Brandished” with reference to a
                                                           “Otherwise used” with reference to
       dangerous weapon (including a
                                                           a dangerous weapon (including a
       firearm) means that all or part of
                                                           firearm) means that the conduct did
       the weapon was displayed, or the
                                                           not amount to the discharge of a
       presence of the weapon was
                                                           firearm but was more than
       otherwise made known to another
                                                           bran dis h i n g , disp laying , o r
       person, in order to intimidate that
                                                           possessing a firearm or other
       person, regardless of whether the
                                                           dangerous weapon.
       weapon was directly visible to that
                                                    U.S.S.G. § 1B1.1 applic. nn. 1(c), (f)
                                                    (original italics removed).           Thus,
purposes of U.S.S.G. § 2B3.1(b)(2).                 “otherwise used” means “more than
United States v. Orr, 312 F.3d 141, 143-44          brandishing, displaying, or possessing . . .
(3d Cir. 2002) (discussing U.S.S.G. §§              a dangerous weapon,” but does not rise to
1B1.1 applic. n. 1(d), 2B3.1 applic. n. 2           the level of “discharge of a firearm.” Id. §
(2001)).       The guidelines define a              1B1.1 applic. n. 1(f) (original italics
“dangerous weapon” to include, among                removed). Although the definition of
other things:                                       “otherwise used” is not particularly
        an object that is not an instrument         helpful, we understand it to require us to
        capable of inflicting death or              examine the nexus between the dangerous
        serious bodily injury but (I) closely       weapon and the relevant conduct, and
        resembles such an instrument; or            determine whether the conduct amounts to
        (II) the defendant used the object in       more than mere “brandishing.” Conduct
        a manner that created the                   that is “more” than mere “brandishing”
        impression that the object was such         need not rise to actual use or attempted use
        an instrument (e.g. a defendant             of the weapon to inflict harm.4
        wrapped a hand in a towel during a
        bank robbery to create the
                                                           4
        appearance of a gun).                               For firearms, the guideline
U.S.S.G. § 1B1.1 applic. n. 1(d) (original          recognizes further gradations of conduct
italics removed); see also id. § 2B3.1              than it does for the broader category of
applic. n. 2.         Here, the backpack            dangerous weapons.       Discharge of a
containing the fake bomb was used in a              firearm merits a larger enhancement than
manner to create the impression that it was         “otherwise using.” Compare U.S.S.G. §
a real bomb.                                        2B3.1(b)(2)(A) (7 levels if firearm is

                                                5
        In the first of two identically named       II”). In one of the robberies, one of
but unrelated Johnson cases, we construed           several defendants wielding baseball bats
the meaning of “otherwise used” in the              threatened to hit an employee with the bat
context of U.S.S.G. § 2A2.2(b), the                 unless she put a phone down, lest he break
guideline for aggravated assault. United            her neck or “knock her damn head off.”
States v. Johnson, 931 F.2d 238 (3d Cir.            Id. at 124-25, 127. Johnson and others
1991) (“Johnson I”). The defendant had              used sledgehammers to break open jewelry
pointed a gun at the victim’s head from a           cases. We concluded that Johnson would
distance of one or two feet, ordered her not        be imputed with the others’ conduct and
to start her car or he would “blow [her]            that a four-level enhancement was
head off,” and demanded her money. Id.              warranted for “otherwise using.” Id. at
at 240 (alteration in original). Johnson            127-28.      “Courts of Appeals have
argued that his mere threat meant that he           generally distinguished between the
had merely brandished the gun. We                   general pointing or waving about of a
disagreed. Whereas “brandish” in the                weapon, which amounts to ‘brandishing,’
context of the guidelines “denot[ed] a              and the pointing of a weapon at a specific
generalized rather than a specific threat,”         victim or group of victims to force them to
we concluded that where a defendant                 comply with the robber’s demands.” Id. at
“actually leveled the gun at the head of the        126.      According to those courts,
victim at close range and verbalized a              “‘brandishing’ constitutes an implicit
threat to discharge the weapon, the                 threat that force might be used, while a
conduct is properly classified as ‘otherwise        weapon is ‘otherwise used’ when the
using’ a firearm.” Id.                              threat becomes more explicit.” Id. (citing
                                                    cases).
       In the second Johnson case, the
defendant and his cohorts robbed several                   Thus, “[p]ointing a weapon at a
jewelry stores. United States v. Johnson,           specific person or group of people, in a
199 F.3d 123 (3d Cir. 1999) (“Johnson               manner that is explicitly threatening, is
                                                    sufficient to make out ‘otherwise use’ of
                                                    that weapon.” Id. at 127. This was “true
discharged), with id. § 2B3.1(b)(2)(B) (6           when any dangerous weapon is employed:
levels if firearm is “otherwise used”). For         It need not be a firearm.” Id. (emphasis in
dangerous weapons, any conduct beyond               original). Moreover, we noted that verbal
mere “brandishing” constitutes “otherwise           threats were not required – non-verbal
using.” See id. § 2B3.1(b)(2)(D) (4 levels          conduct could also suffice. Id. (citing
if dangerous weapon is “otherwise used”).           United States v. Nguyen, 190 F.3d 656
Thus, it does not matter if a defendant             (5th Cir. 1999)).5 Thus, Johnson had
uses, attempts to use, or engages in some
other conduct relating to a dangerous
                                                           5
weapon, so long as it amounts to more                      In Johnson II, we cited with
than mere “brandishing.”                            approval to the First Circuit’s opinion in

                                                6
“otherwise used” dangerous weapons in             conduct in using the sledgehammer to
two ways: through a co-defendant’s use of         coerce and threaten others by smashing
the baseball bat, and through his own             open jewelry cases while a co-defendant
                                                  threatened an employee with the baseball
                                                  bat. Id. at 127-28.
United States v. LaFortune, 192 F.3d 157                  We confronted whether conduct
(1st Cir. 1999). See Johnson II, 199 F.3d         without an explicit verbal threat could be
at 127. In LaFortune, the defendant had           “otherwise using” in United States v. Orr,
pointed a cocked gun at the head of one           312 F.3d 141 (3d Cir. 2002), where the
teller, holding the gun in his hand while         defendant robbed a credit union carrying
shoving a customer to the floor and               what appeared to be a handgun but was in
ordering her to get down and not to talk,         fact a pellet gun. Orr held the gun to the
and aimed the weapon directly at another          assistant manager’s head and directed her
bank employee while giving orders. 192            to empty a cash box into a garbage bag.
F.3d at 161. The Court concluded that             We noted that in Johnson I and Johnson II,
LaFortune had “otherwise used” the                the defendants had “otherwise used”
weapon:                                           dangerous weapons by (1) pointing or
        a person may “brandish” a weapon          raising a weapon at a vic tim ;
        to “advise” those concerned that he       (2) threatening to harm or kill; and (3)
        possesses the general ability to do       making demands for money or other
        violence, and that violence is            actions. Id. at 144-45 (citing Johnson II,
        imm inently and immediately               199 F.3d 123; Johnson I, 931 F.2d at 240).
        available. A general, or even             In Orr, a demand for money was made, but
        pompous, showing of weapons,              the threat to shoot was made only through
        involving what one would consider         the defendant’s conduct. We concluded
        an arrogant demonstration of their        that “[n]either the guidelines nor the
        presence, cons titutes th e               caselaw requires infliction of the violent
        generalized warning that these            physical contact Orr suggests or a
        weapons may be, in the future,            verbalized threat to harm the victim in
        used and not merely brandished.           order to constitute ‘otherwise used.’” Id.
        Altering this general display of          at 145.
        weaponry by specifically leveling
                                                         There is little case law on when a
        a cocked firearm at the head or
                                                  bomb or incendiary device, fake or real,
        body of a bank teller or customer,
                                                  has been “otherwise used.” However, this
        ordering them to move or be quiet
                                                  issue arose in the Eleventh Circuit in
        according to one’s direction, is a
                                                  United States v. Miller, 206 F.3d 1051
        cessation of “brandishing” and the
                                                  (11th Cir. 2000), where the defendant
        commencement of “otherw ise
                                                  approached a bank teller, displayed what
        used.”
                                                  looked like a bomb, lit the fuse, and asked
Id. at 161-62 (emphasis in original).

                                              7
her if she knew what “it” was. He                   phone, gave the teller 40 seconds to hand
demanded money without dye packs. The               over untraceable money without red dye,
Court concluded that Miller did not just            and indicated that if anybody tried to stop
display or brandish the fake bomb – he              him, he would push redial and blow up the
actually lit the fuse while explicitly              bank, which would necessarily include
threatening the teller. Id. at 1054. The            blowing up the teller. Wilson’s actions
Court held that “lighting the fuse is like          were also explicitly threatening. He
the cocking of a handgun,” making the               placed the bomb in close proximity to the
dangerous weapon “otherwise used.” Id.;             teller, 18 inches away. 7 Indeed, the teller
cf. United States v. Waskom, 179 F.3d               believed that the backpack contained a real
303, 314-15 (5th Cir. 1999) (construction           bomb.       Wilson also displayed what
and detonation of test bombs in connection          appeared to be a gun stuffed in the
with conspiracy to commit robbery, with             waistband of his trousers.8 Accordingly,
plans to detonate additional bombs as               Wilson “otherwise used” the fake bomb.
diversion for upcoming robbery, showed
bombs were “otherwise used”). 6
       Turning to the facts at hand, we
conclude that Wilson “otherwise used” the                  7
                                                             We do not suggest that a bomb
fake bomb. He made explicit verbal and              must be close to a victim for it to be
written threats that he would detonate the          “otherwise used.” Nor do we opine on
bomb if the teller did not comply with his          how or whether a bomb’s distance might
demands. He said “This is not a joke, give          affect the calculus. Limiting ourselves to
me your money,” and demanded, both                  the facts of this case – the proximity of the
verbally and in writing, that the teller give       fake bomb to the teller, W ilson’s explicit
him money. He also said that he had “a              verbal and written statements, and his
bomb that can be detonated by a cell                other actions – compels the conclusion that
phone, you have 40 seconds.” His demand             the fake bomb was “otherwise used.” Cf.
note said his bomb was hooked up to a               United States v. Yelverton, 197 F.3d 531,
                                                    533-34 (D.C. Cir. 1999) (construing
                                                    U.S.S.G. § 2A4.1(b)(3) (1995) and
       6
        Other cases have involved fake              concluding that kidnapper “otherwise
bombs employed in bank robberies in                 used” gun when, to induce payment of
connection with explicit threats. See, e.g.,        ransom, he showed mother a picture of her
United States v. Rodriguez, 301 F.3d 666,           child with a gun pointed to his head).
667 (6th Cir. 2002); United States v. Hart,
                                                           8
226 F.3d 602, 603-04 (7th Cir. 2000).                      Although the conduct with the gun
Neither of these cases addressed whether            was not directly tied to the fake bomb, we
the fake bombs were “otherwise used,”               agree with the district court that the gun
instead discussing whether they were                made Wilson’s threats regarding the fake
dangerous weapons in the first place.               bomb more credible.

                                                8
        Wilson attempts to distinguish
Miller on its facts because Miller had gone
further, lighting the fuse of his fake bomb.
                                                     “brandishing” – can not constitute
In contrast, says Wilson, he never took the
                                                     “otherwise using.” Such a conclusion runs
bomb out of the backpack, waved or
                                                     counter to the bulk of authority and our
pointed the backpack at the teller, moved
                                                     prior cases. As stated by the D.C. Circuit:
the backpack, or reached for the detonator.
                                                             Virtually all of the circuits to
Wilson’s argument misses the mark. Such
                                                             address the question have held that
additional steps are no doubt sufficient to
                                                             where a dangerous weapon is
show “otherwise use.” They are not,
                                                             pointed at a person and some
however, necessary. Although Miller
                                                             further verbal threat or order
noted that “lighting the fuse is like the
                                                             accompanies the pointing of the
cocking of a handgun,” the gun need not
                                                             weapon to facilitate commission of
be “cocked” – the mere pointing of a
                                                             the und erlying crim e, an
weapon, in connection with explicit
                                                             enhancement for the use of the
threats, is sufficient.
                                                             weapon is justified.
         Here, the fake bomb was essentially         Yelverton, 197 F.3d at 534 (citing cases).
“pointed” at the victim by its placement                     Cases to the contrary ignore the fact
within 18 inches of her body. Wilson                 t h a t a n y c o n d u ct b eyond me re
made explicit verbal and written threats in          “brandishing” is “otherwise using.” In
connection with the fake bomb. The                   United States v. Matthews, 20 F.3d 538
conduct was undertaken to heighten the               (2d Cir. 1994), the defendants ordered
teller’s fear in order to facilitate the             bank robbery victims to lie on the floor,
robbery. Yelverton, 197 F.3d at 534 (“the            pointed their weapons at them, and
key consideration is whether a gun (or               threatened to kill anyone who disobeyed.
other weapon) was pointed at a specific              The Second Circuit concluded that the
person in an effort to create fear so as to          addition of an explicit verbal threat did not
facilitate compliance with a demand, and             constitute additional use of the weapon,
ultimately to facilitate the commission of           and therefore was mere “brandishing.” Id.
the crime”).         Wilson’s conduct is             at 554; see also United States v. Moerman,
analogous to pointing a gun at the teller’s          233 F.3d 379, 381 (6th Cir. 2000)
head and threatening to shoot lest the teller        (pointing of gun combined with verbal
fail to comply. Accordingly, Wilson’s use            demand not “otherwise using”); United
of the fake bomb was like the pointing of            States v. Gonzales, 40 F.3d 735, 740 (5th
a handgun, making it “otherwise used.” 9             Cir. 1994) (same).
                                                             We rejected Matthews in Johnson
                                                     II, where we cited to Matthews with a “But
       9
            Wilson would have us conclude            see.” See Johnson II, 199 F.3d at 126-27
that the evidence of record – which clearly          (following other circuits and citing
e v i d e n c e s f a r m o r e th a n m e r e       Matthews as contrary authority). Indeed,

                                                 9
           Defendant also cites to United                  there must be a nexus between the
States v. Kushmaul, 147 F.3d 498 (6th Cir.                 dangerous weapon and the conduct alleged
1998), where the defendant used one hand                   to constitute “otherwise use” of that
to force a victim to the floor during a bank               weapon. In Kushmaul, that nexus was
robbery. In Kushmaul’s other hand was a                    lacking. The weapon was not – through
baseball bat, which Kushmaul never                         words or actions – specifically used in
raised. He told the victim, among other                    connection with a demand or threat. In
things, “Be quiet and I won’t hurt you.”                   contrast, Wilson, through his words and
Id. at 499. The Court concluded that “the                  actions, made specific use of and reference
a s s a u l t w a s c o m m i t t e d e n t i re ly        to the fake bomb in connection with his
independently of the bat.” Id. at 501.                     demand and threat. 10
Although the defendant verba lly
                                                                   Finally, Wilson argues that the
threatened the woman, he did so “without
                                                           district court clearly erred in concluding
reference” to the bat. Id. Accordingly, the
                                                           that the teller saw the contents of the
assault and threat were not relevant to an
                                                           backpack containing the fake bomb. This
assessment of how the defendant used the
                                                           argument is in theory enhanced by the
weapon. Id.
                                                           government’s concession on appeal that
       Not     only     is     Kushmaul                    the photograph of the open backpack cited
distinguishable on its facts, but its result               by the district court turned out to show a
supports our conclusion.         We read                   backpack that had been cut open after the
Kushmaul to stand for the proposition that                 robbery. But whether or not the teller saw
                                                           the backpack’s contents is irrelevant.

the holding of Matthews is irreconcilable
                                                                  10
with Johnson II, where we held that                                  Wilson also quotes Kushmaul for
“[p]ointing a weapon at a specific person                  the proposition that “‘[o]ther use in the
or group of people, in a manner that is                    non-firearm context . . . necessarily
explicitly threatening, is sufficient to make              includes the most extreme thing one can
out ‘otherwise use’ of that weapon.” Id. at                do with a weapon, that is, using it to
127. Other Courts of Appeals have held                     actually injure, or attempt to injure, a
similarly. See United States v. Cover, 199                 victim.’” Wilson Br. at 13 (quoting
F.3d 1270, 1279 (11th Cir. 2000) (treating                 Kushmaul, 147 F.3d at 502).            This
M a tt he w s as contrary au th or ity) ;                  proposition does not help Wilson.
LaFortune, 192 F.3d at 161 (rejecting                      Although “the most extreme thing” can
Matthews); Yelverton, 197 F.3d at 534 n.2                  constitute “otherwise using,” lesser
(treating Matthews and Gonzales as                         conduct may satisfy “otherwise using” as
contrary authority); United States v.                      well. See n. 4, supra. In other words,
Wooden, 169 F.3d 674, 677 n.5 (11th Cir.                   Wilson did not have to try to blow up the
1 9 9 9 ) ( r e je c t in g G o n z a l e s a n d          teller in order to “otherwise use” his fake
distinguishing Matthews).                                  bomb.

                                                      10
Wilson concedes that the fake bomb was a                                 III.
dangerous weapon and it is undisputed that
                                                              By placing a fake bomb close to a
the teller believed the bomb to be real.
                                                      bank teller who believed it to be real, and
Indeed, the fake bomb was used in a
                                                      by making explicit verbal and written
manner to suggest that it was real, making
                                                      threats to imminently detonate the bomb if
it a dangerous weapon for guidelines
                                                      the teller did not comply with his demands,
purposes. See U.S.S.G. § 1B1.1 applic. n.
                                                      Wilson went beyond mere “brandishing.”
1(d) (object used “in a manner that created
                                                      His conduct is analogous to pointing a gun
the impression that the object was such an
                                                      at a teller’s head, making demands, and
instrument” is dangerous weapon). One
                                                      threatening to shoot unless the teller
need not see a fake bomb in order for it to
                                                      complies. We therefore conclude that
constitute a dangerous weapon. See
                                                      Wilson “otherwise used” the fake bomb
Rodriguez, 301 F.3d at 669 (styrofoam
                                                      for sentencing purposes and that the four-
sandwich box put forth as bomb properly
                                                      level enhancement was correct.
found to be “dangerous weapon”); Hart,
226 F.3d at 609 (lunch box and shoe box                       Accordingly, the judgment of the
put forth as bomb properly found to be                district court will be AFFIRMED.
“dangerous weapons”). As undisputed
evidence of record compels the conclusion
that Wilson “otherwise used” the fake
bomb, it does not matter whether or not the
teller saw the contents of the backpack.11



       11
         The government notes that other
photographs entered into evidence before
the district court show an unzippered
backpack that could have been viewed
from the teller’s perspective, thus arguing
that the district court did not clearly err in
concluding that the teller saw the                    District Court’s judgment on grounds other
backpack’s contents. We need not decide               than those considered by the District Court
whether the district court clearly erred              itself.” (emphasis in original)); see also
because the undisputed evidence of record             United States v. Garnett, 243 F.3d 824,
compels the conclusion that the fake bomb             830 (4th Cir. 2001) (“we can affirm [a]
was “otherwise used.” Even if the district            sentence on the basis of any conduct [in
court erred, it is well-settled that we may           the record] that independently and properly
affirm its judgment on different grounds.             should result in an increase in the offense
See United States v. Miller, 224 F.3d 247,            level” (second alteration in original,
248 n.1 (3d Cir. 2000) (“We may affirm a              quotation marks removed)).

                                                 11
