                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            OCTOBER 1, 2007
                              No. 07-11673                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 06-00215-CR-WS

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                   versus

MARVIN DEMARQUAY MOORE,

                                                      Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                       _________________________

                              (October 1, 2007)

Before DUBINA, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Marvin Demarquay Moore plead guilty to bank robbery, in violation of 18
U.S.C. § 2113(a). He appeals his 60-month sentence imposed by the district court.

Moore argues that the district court erred by imposing a three-level enhancement of

his sentence, for possession of a dangerous weapon during the robbery, pursuant to

U.S.S.G. § 2B3.1(b)(2)(E). Specifically, Moore claims that the enhancement

should not apply because he did not actually possess a weapon or an object

simulating a weapon.

      We review the district court’s findings of fact for clear error, but review its

application and interpretation of the Sentencing Guidelines de novo. United States

v. Lozano, 490 F.3d 1317, 1321 (11th Cir. 2007) (citing United States v. Crawford,

407 F.3d 1174, 1177-78 (11th Cir. 2005)).

      Section 2B3.1(b)(2)(E) of the Guidelines provides for a three-level

enhancement “if a dangerous weapon was brandished or possessed” during a

robbery. U.S.S.G. § 2B3.1(b)(2)(E). We have held this section applies to the

possession of a toy gun, even though that gun was never used or displayed. United

States v. Shores, 966 F.2d 1383, 1387-88 (11th Cir. 1993) (per curiam). Similarly,

we have found the section applicable when a “robber uses a finger or some other

hard object to cause the victim to believe that it is a dangerous weapon,” even if

the victim never actually sees the object. United States v. Vincent, 121 F.3d 1451,

1455 (11th Cir. 1997); see United States v. Woods, 127 F.3d 990, 993 (11th Cir.



                                           2
1997) (per curiam). In our most recent case analyzing this section, we determined

that “the critical factor for the application of § 2B3.1(b)(2)(E) is whether the

defendant intended the appearance of a dangerous weapon.” United States v.

Bates, 213 F.3d 1336, 1338 (11th Cir. 2000) (citing Woods, 127 F.3d at 993).

Bates upheld a district court’s enhancement under this section where an unarmed

defendant simulated the possession of a dangerous weapon by reaching into his

pants waist band during a bank robbery. Id. at 1336-39.

      In this case, Moore argues that his sentence should not have been enhanced

under U.S.S.G. § 2B3.1(b)(2)(E) because he did not possess a dangerous weapon

or an object that resembled a dangerous weapon. This argument is foreclosed by

our decision in Bates, where we upheld an enhancement under this section when

the defendant did not possess any object at all. Id. at 1338-39. It was sufficient that

the defendant in Bates reached into his waist band, thus creating the appearance

that he possessed a dangerous weapon. Id.

      The issue before us then is whether Moore acted in a manner to create the

appearance that he possessed a dangerous weapon. We relied in Bates on the

subjective perception of the victim teller in making this determination. Id. at 1339

(“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



                                           3
affirm the district court's imposition of the three-level enhancement pursuant to

§ 2B3.1(b)(2)(E).”). The victim teller in the instant case, Kimberly Ann Gollotte,

testified that she believed that Moore possessed a dangerous weapon based on the

demand note, which read “Give me the money or else,” and the fact that Moore

repeatedly reached his hands down his pants. This case is thus legally and factually

indistinguishable from Bates. Therefore, the district court properly applied the

three-level enhancement to Moore’s sentence under U.S.S.G. § 2B3.1(b)(2)(E).

Accordingly, we affirm.

      AFFIRMED.




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