     Case: 14-40280      Document: 00512962636         Page: 1    Date Filed: 03/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-40280                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   March 9, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

MIGUEL ANGEL SANCHEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-1381


Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Miguel Angel Sanchez appeals his 87 month prison sentence following a
guilty plea for interfering with commerce by threats or violence. The district
court imposed a four-level Guidelines enhancement for otherwise using a
dangerous weapon during a jewelry store robbery. Sanchez argues that the
involvement of a Fubar during the robbery amounts to, at most, the




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-40280
brandishing of a dangerous weapon. Because the record does not support the
enhancement, we VACATE and REMAND.
                                        I.
      On May 16, 2011, Sanchez and three other individuals robbed a jewelry
store in McAllen, Texas. One individual acted as a lookout while Sanchez and
two other individuals proceeded inside the store. One of the individuals—but
not Sanchez—ordered the four store employees to get on the ground; Sanchez
did not speak. The employees complied with the order. Sanchez and the two
other individuals proceeded to take jewelry from display cases. Sanchez was
holding a metal functional utility bar, commonly known as a Fubar, used for
prying, splitting, board bending and striking jobs. Sanchez used the Fubar to
break the display cases and collect the jewelry. A third individual used a pipe
wrench to break display cases. A fourth individual collected jewelry from the
broken cases into a duffle bag. Sanchez and the other individuals spent less
than two minutes carrying out the robbery.
      At Sanchez’s rearraignment, the district court inquired about the use of
a weapon. The government stated that there “was the threat of physical
violence when the entry was made—the employees were all told to get on the
ground.”   The government added that the individuals “had several large
demolition bars that were—that they were carrying with them.” The attorney
for Sanchez’s co-defendant stated that he did not “believe anyone used the bars
against any of these people.” The district court replied, “Well, except for the
fact they were holding them . . . [w]hile they were being told get on the ground.”
      In the Presentence Investigation Report (“PSR”), the probation officer
recommended that Sanchez’s base offense level be increased by four levels
under U.S.S.G. § 2B3.1(b)(2)(D) because a dangerous weapon—the Fubar—
was “otherwise used” to break into display cases. Sanchez objected to the
enhancement. The probation officer responded that the enhancement was
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                                   No. 14-40280
appropriate because a Fubar is considered a dangerous weapon and “was
otherwise used during the course of the robbery.”
      At the sentencing hearing, Sanchez did not reiterate or make any
additional argument concerning the objection. The district court found that
the four-level increase was warranted, adopted the recommendation in the
PSR, and sentenced Sanchez to 87 months in prison, at the top of the advisory
Guidelines range of 70-87 months. Sanchez timely appealed.
                                         II.
      Sanchez raises a single issue on appeal: whether he “otherwise used”
the Fubar as a dangerous weapon pursuant to U.S.S.G. § 2B3.1(b)(2)(D). The
parties dispute the applicable standard of review. The government contends
that Sanchez’s objection was vague and deserves only plain error review. See
United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012) (“If . . .
the defendant has failed to make his objection to the guidelines calculation
sufficiently clear, the issue is considered forfeited, and we review only for plain
error.”). Sanchez counters that his objection was specific enough to preserve
review. We agree with Sanchez on this point.
      Sanchez filed a written objection to the PSR, contending that he “objects
to the four (4) level enhancement under U.S.S.G. Section 2B3.1(b)(2).” Sanchez
did not expound the reasons for his objection.           Still, the objection was
“sufficiently specific to alert the district court to the nature of the alleged error
and to provide an opportunity for correction.” United States v. Neal, 578 F.3d
270, 272 (5th Cir. 2009). “Exacting precision is not required.” United States v.
Gonzales, 642 F.3d 504, 505 (5th Cir. 2011). The record shows that the district
court understood the basis for Sanchez’s objection and had an opportunity to
address it before imposing a sentence.          Sanchez’s challenge to U.S.S.G.
§ 2B3.1(b)(2) could have raised only two issues: the classification of the Fubar
as a dangerous weapon or the PSR’s conclusion that it was “otherwise used.”
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                                  No. 14-40280
In an addendum to the PSR, the probation office demonstrated understanding
of Sanchez’s objection, responding that “the U.S. Probation Office maintains
that the increase was appropriately assessed as a Fu-Bar, considered a
dangerous weapon, was otherwise used during the course of the robbery.” At
the sentencing hearing, the district court similarly addressed both of the
possible grounds for objection:
            Pursuant to guideline section 2(b)(3.1)(b)(2) there was a
      dangerous weapon that was otherwise used in this case, so this is
      an increase of 4 levels.
             The Defendant entered in to this joint undertaking criminal
      activity that involved breaking into display cases utilizing a Fubar.
      The Fubar is considered an instrument that is capable of inflicting
      death or serious bodily injury and certainly the way it was used
      here, it was used as a dangerous weapon. So thus, the 4-level
      increase is warranted here.
            It’s not only the Court’s description here, but the description
      in the entire Pre-Sentence Investigation Report as to how this bar
      was used for purposes of, in some ways actually, also intimidating
      the victims that were at the store.
Unlike the objection in Chavez-Hernandez, Sanchez’s objection accomplished
the purposes of requiring specific objections: clarifying issues to the district
court, allowing the district court to rule in the first instance, shielding this
court from ruling on issues that have been insufficiently vetted below, and
discouraging sandbagging. See Chavez-Hernandez, 671 F.3d at 497. Moreover,
despite the government’s suggestion, there is no requirement that Sanchez
reiterate his objection orally. See Neal, 578 F.3d at 272–73 (citing United
States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir. 2003) (“[O]nce a party
raises an objection in writing, if he subsequently fails to lodge an oral on-the-
record objection, the error is nevertheless preserved for appeal.” (alteration in
original))).



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                                 No. 14-40280
      Because Sanchez adequately objected to the sentencing enhancement in
the district court, we “review the district court’s application of the Guidelines
de novo and its factual findings for clear error.” Id. at 273 (internal quotation
marks and citation omitted).
                                      III.
      U.S.S.G. § 2B3.1(b)(2)(D) increases a defendant’s offense level by four
levels “if a dangerous weapon was otherwise used” in the course of a robbery.
U.S.S.G. § 2B3.1(b)(2)(D). If a dangerous weapon was only “brandished or
possessed,” the offense level is increased by three levels. Id. § 2B3.1(b)(2)(E).
The parties do not dispute that a Fubar qualifies as a “dangerous weapon”
under the Guidelines because it is “an instrument capable of inflicting death
or serious bodily injury.” Id. § 1B1.1 cmt. n.1(D). Rather, the dispute is
whether the Fubar was “otherwise used” or merely brandished, displayed, or
possessed. The Guidelines definitions provide a useful starting point for our
analysis.
            “Brandished” with reference to a dangerous weapon
      (including a firearm) means that all or part of the weapon was
      displayed, or the presence of the weapon was otherwise made
      known to another person, in order to intimidate that person,
      regardless of whether the weapon was directly visible to that
      person. Accordingly, although the dangerous weapon does not
      have to be directly visible, the weapon must be present.
Id. cmt. n.1(C).      “‘Otherwise used’ with reference to a dangerous
weapon (including a firearm) means that the conduct did not amount to the
discharge of a firearm but was more than brandishing, displaying, or
possessing a firearm or other dangerous weapon.” Id. cmt. n.1(I).




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                                       No. 14-40280
       This court has, on several occasions, discussed the difference between
brandishing and otherwise using a dangerous weapon. 1 In United States v.
Williams, we held that a defendant who pointed and swung a shank at a
corrections officer “otherwise used” a dangerous weapon. 520 F.3d 414, 423
(5th Cir. 2008); see also United States v. Espinosa, 422 F. App’x 333, 334 (5th
Cir. 2011) (pistols were “otherwise used” when pointed at victims). In United
States v. Dunigan, the defendant pointed a BB gun in the victim’s face and
shouted at the victim to shut up and give him all her money. 555 F.3d 501,
506 (5th Cir. 2009). This court, relying on the act of pointing the gun at the
victim, held that the defendant “otherwise used” the gun. Id. We reasoned
that “[d]isplaying a weapon without pointing or targeting should be classified
as ‘brandished,’ but pointing the weapon at any individual or group of
individuals in a specific manner should be ‘otherwise used.’” Id. at 505. For
the four-level enhancement to apply, “[t]he threat to the victim must be specific
rather than general.” Id.
       In sum, precedent dictates that a defendant makes a “specific” threat
sufficient to constitute “otherwise us[ing]” a dangerous weapon when he points
or swings the weapon at an individual, with or without an accompanying
verbal threat. Here, the district court did not make a finding, and the record
does not support, that Sanchez or any other individual involved with the
robbery pointed, swung, or directed the Fubar at the store employees. Indeed,




       1  The Guidelines were amended in 2000 to expand the definition of “brandished.”
Prior to 2000, “‘[b]randished’ with reference to a dangerous weapon (including a firearm)
mean[t] that the weapon was pointed or waved about, or displayed in a threatening manner.”
U.S.S.G. § 1B1.1 cmt. n.1(c) (1998). The definition of “otherwise used” remained tied to the
definition of brandished, meaning that the threshold for “otherwise used” effectively was
lowered by the 2000 amendments. For this reason, pre-2000 cases discussing brandishing
are of little use. See United States v. Dunigan, 555 F.3d 501, 505 n.5 (5th Cir. 2009) (noting
that pre-2000 cases involving these definitions were “overrule[d]”).
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                                       No. 14-40280
the government characterized defendants as “carrying” Fubars and the district
court found that defendants were “holding” them.
       Instead, the government’s theory is that the order to get on the ground,
followed closely by Sanchez’s use of the Fubar to break open display cases in
front of the employees, constituted “otherwise us[ing]” the Fubar because the
“concerted action had the desired effect of intimidating the victims and was
equally as coercive and threatening as an explicit verbal threat.”                       The
government therefore asks us to expand the orbit of otherwise using a
dangerous weapon, which we have held must create a specific threat to a
victim, to activity beyond that involving neither a verbal threat explicitly
involving the weapon nor a direct physical threat caused by pointing or
otherwise targeting the weapon at the victims. See Dunigan, 555 F.3d at 505.
       The primary case cited by the government does not warrant extending
the definition of “otherwise used” in this manner. In United States v. Johnson,
Johnson used a sledgehammer to break open jewelry display cases during a
robbery. 199 F.3d 123, 124 (3d Cir. 1999). 2 While Johnson smashed the
display cases, a co-defendant held a baseball bat aloft and threatened to break
an employee’s neck and knock her head off. Id. at 127–28. The Third Circuit
held that this conduct—Johnson’s smashing of display cases combined with a
co-defendant’s wielding of a baseball bat and explicit verbal threats involving
the bat—warranted the “otherwise used” enhancement against Johnson. Id.
       The conduct in this case does not rise to the level of use in Johnson. For
the “otherwise used” enhancement to apply, the threat to the victim must be
specific, which can be accomplished either by physical action or a verbal




       2 As a Third Circuit case analyzing the pre-2000 “brandishing” definition, Johnson’s
persuasiveness is doubtful, see supra n.1; regardless, it is distinguishable from the facts of
this case.
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                                       No. 14-40280
threat. 3 Unlike in Johnson, no individual verbally threatened to use a weapon
against any victim. The link between the Fubar and the verbal threat to get
on the ground was too attenuated and general to warrant the enhancement;
Sanchez used the Fubar to smash the display cases and a different individual
gave the verbal order. The district court gave weight to a finding that the
Fubar’s use was for purposes of intimidation, and actually did intimidate the
employees. But a finding of intimidation, without more, is consistent with a
finding of brandishment—intimidation is a required element of brandishing a
weapon. See U.S.S.G. § 1B1.1 cmt. n.1(C). While the smashing of the display
cases doubtless contributed to the employees’ intimidation, the use of the
Fubar was as a tool to break the display cases and access the jewelry.
Sanchez’s use of the Fubar did not create the required “specific” threat to the
victims. Dunigan, 555 F.3d at 505. Accordingly, we find that the district court
improperly applied the four-level enhancement for otherwise using a
dangerous weapon.
                                              IV.
       Our conclusion that the enhancement was erroneous will not result in
remand for resentencing if the error was harmless. See United States v. Ibarra-
Luna, 628 F.3d 712, 713–14 (5th Cir. 2010). An error is harmless “only if the
proponent of the sentence convincingly demonstrates both (1) that the district


       3 Our approach accords with that of other circuits that have considered the difference
between “otherwise us[ing]” and “brandish[ing].” See United States v. Villar, 586 F.3d 76, 89
(1st Cir. 2009) (a gun was otherwise used when “specifically level[ed]” at a victim); United
States v. Orr, 312 F.3d 141, 144–45 (3d Cir. 2002) (pointing a gun at a victim’s head and
ordering her to provide money was a specific threat satisfying the otherwise used
requirement); United States v. Paine, 407 F.3d 958, 964 (8th Cir. 2005) (pointing a firearm
directly at a bank teller, along with a verbal threat, constituted otherwise using the weapon);
United States v. Albritton, 622 F.3d 1104, 1107 (9th Cir. 2010) (pointing a pistol directly at a
bank teller and ordering her to get down was otherwise using the weapon); United States v.
Douglas, 489 F.3d 1117, 1128–29 (11th Cir. 2007) (per curiam) (showing a victim a gun and
making explicit threat that he would hurt her if she did not comply with orders was otherwise
using the weapon).
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                                 No. 14-40280
court would have imposed the same sentence had it not made the error, and
(2) that it would have done so for the same reasons it gave at the prior
sentencing.” Id. at 714. The government “must point to evidence in the record
that will convince us that the district court had a particular sentence in mind
and would have imposed it, notwithstanding the error made in arriving at the
defendant’s guideline range.” United States v. Delgado-Martinez, 564 F.3d
750, 753 (5th Cir. 2009) (internal quotation marks and citations omitted).
      The government argues for plain error review and does not point to
evidence in the record that shows that the district court would have imposed
the same sentence had it considered the correct Guidelines range. The district
court did not consider the alternative advisory Guidelines range and did not
state that it would have imposed the same sentence.         The district court
considered the erroneous Guidelines range of 70-87 months and imposed a
sentence of 87 months—at the high end of the range. The 87-month sentence
would be outside of the correct Guidelines range and there is no evidence in
the record that the district court would have imposed an out-of-Guidelines
sentence.   The district court’s statement that it had considered all of the
applicable 3553(a) factors is insufficient to meet the “heavy burden” of showing
that the district court would have imposed the same sentence absent the error
in calculating the Guidelines range. Ibarra-Luna, 628 F.3d at 717; see also
United States v. Huskey, 137 F.3d 283, 290 (5th Cir. 1998). Accordingly, the
error was not harmless.
                                      V.
      For the foregoing reasons, we VACATE Sanchez’s sentence and
REMAND to the district court for resentencing with instructions to apply a
three-level enhancement for “brandish[ing] or possess[ing]” a dangerous
weapon. U.S.S.G. § 2B3.1(b)(2)(E).


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