UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 94-5842

LARRY RICKY YOUNG,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                   No. 94-5892

LARRY RICKY YOUNG,
Defendant-Appellee.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-93-263-MU)

Submitted: April 30, 1996

Decided: June 14, 1996

Before MURNAGHAN and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Charles L. Morgan, Jr., Charlotte, North Carolina, for Appellant.
Mark T. Calloway, United States Attorney, Robert J. Conrad, Jr.,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Larry Ricky Young appeals the 108-month sentence he received
after he was convicted of conspiracy to rob an armored vehicle, 18
U.S.C.A. § 371 (West 1966 & Supp. 1996); obstruction or delay of
commerce by robbery, 18 U.S.C.A. § 1951 (West 1984 & Supp.
1996), 18 U.S.C. § 2 (1988); bank robbery and bank larceny, 18
U.S.C.A. § 2113(a), (b) (West Supp. 1996), 18 U.S.C. § 2; and inter-
state transportation of stolen money, 18 U.S.C.A.§ 2314 (West Supp.
1996), 18 U.S.C. § 2. He contests the district court's enhancement of
his sentence for obstruction of justice, for having a leadership role in
the offense, and for abusing a position of trust. United States Sentenc-
ing Commission, Guidelines Manual, #8E8E # 3C1.1, 3B1.1(c), 3B1.3
(Nov. 1993). The government appeals the district court's decision not
to enhance Young's sentence for use of a dangerous weapon. USSG
§ 2B3.1(b)(2)(E). We affirm in part, but vacate the obstruction of jus-
tice adjustment and remand for resentencing.

Young worked as the driver of a Wells Fargo armored van and
made daily deliveries of cash to First Union National Bank automatic
teller machines in Charlotte, North Carolina. He and a friend, Christo-
pher Matthews, devised a scheme to steal money from the van. While
Young put fuel in the van at a gas station, Matthews shocked him
from behind with a stun gun, took his keys, and drove the van to a

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nearby hiding place. Young had previously placed most of the cash
to be delivered that day in a plastic bag which was on the floor in the
cargo area of the van rather than in the safe. Young had also deacti-
vated the alarm system in the van.

Matthews and a friend, Calvin Prince, flew to Baltimore where
Matthews checked them into a hotel using Young's name and college
identification card. Matthews attempted to give Young's half of the
money to Young's former girlfriend for safekeeping, as he had been
instructed to do, but she refused to take it. Matthews, Young, and
Prince were arrested within a few days. Matthews and Prince entered
guilty pleas to bank larceny. Matthews testified at Young's trial that
Young had come up with the idea of using a stun gun and had given
him money to buy the gun.

Young first contends that the district court failed to find that he
committed perjury in his trial testimony and thus did not comply with
the requirement of United States v. Dunnigan, 507 U.S. 87, 95 (1993),
that the court make an independent finding that the defendant com-
mitted perjury before making an adjustment on that basis. We agree
that a remand is necessary for the district court to make the necessary
findings.

The district court accepted the probation officer's recommendation
for an adjustment based on Young's false testimony that he was not
involved in the robbery. However, the court did not find that Young
had, in fact, testified untruthfully. The court did not make any finding
concerning whether the adjustment could be made based on the alter-
native ground that Young gave false information to investigating
agents before his arrest. The district court's failure to make an inde-
pendent finding that Young committed perjury rather than testified
falsely as a result of confusion, mistake, or a faulty memory requires
a remand for compliance with Dunnigan. See United States v. Smith,
62 F.3d 641, 647 (4th Cir. 1995).

Young next maintains that the district court's finding concerning
his leadership role in the offense was insufficient. The probation offi-
cer recommended a 2-level enhancement because Young made the
critical decisions concerning the nature and timing of the robbery,
suggested the use of the stun gun, gave Matthews money to buy a stun

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gun, and told Matthews where to find the money in the van. Young
offered no argument on this issue in the district court, only a denial
that he was a leader. The district court's brief finding is adequate to
support the adjustment because the basis for the adjustment was clear.

A 2-level adjustment is appropriate if the defendant has "abused a
position of public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense." USSG
§ 3B1.3. A position of trust is one "characterized by professional or
managerial discretion." The adjustment does not apply in the case of
theft or embezzlement by an ordinary bank teller. USSG § 3C1.3,
comment. (n.1). The district court's determination that the defendant
abused a position of trust is reviewed under the clearly erroneous
standard. United States v. Helton, 953 F.2d 867, 869 (4th Cir. 1992).

The district court found that Young's position was functionally
equivalent to that of a bank teller, but was nonetheless a position of
trust because he was trusted with such large sums of money. Young
argues that the adjustment did not apply because his position was, like
a bank teller's, lacking in professional or managerial discretion.

In United States v. Gordon, 61 F.3d 263, 269 (4th Cir. 1995), this
court distinguished the position of an ordinary bank teller who has
"little trust to abuse" because she is closely supervised, from that of
a head teller who has access to highly sensitive bank security infor-
mation which she may pass on to outsiders to facilitate a robbery.
Gordon held that the enhancement is approached from the perspective
of the victim, and does not turn on formalistic job descriptions, but
depends on whether the employee has special duties or access to spe-
cial information, the degree of supervision the employee works under,
and whether the employee's actions render him more culpable than
others who hold similar positions. Id. (citations omitted).

Unlike a bank teller who handles the bank's money only in the
bank under close supervision, Young routinely had close to half a mil-
lion dollars in his sole custody under no supervision at all. He knew
how to deactivate the alarm system in the armored van to allow an
outsider to enter, and he did so. Under the analysis used in Gordon,
the district court did not clearly err in finding that Young occupied
and abused a position of trust.

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Finally, the government appeals the district court's decision not to
give Young a 3-level increase because a dangerous weapon was bran-
dished, displayed, or possessed during the offense. The government
argues that a stun gun is by definition a dangerous weapon and that
the issue should be reviewed de novo. Young maintains that the dis-
trict court made a factual determination that, as used in this case, the
stun gun was not a dangerous weapon, and that the court's finding
should be reviewed for clear error. In this case, Young's position is
the better one.

A "dangerous weapon" is defined in the guidelines as an instrument
capable of inflicting death or a serious bodily injury. USSG § 1B1.1,
comment. (n.1(d)). A "serious bodily injury" is defined as an injury
involving extreme physical pain or the impairment of a function of a
bodily member, organ, or mental faculty, or requiring medical inter-
vention. USSG § 1B1.1, comment. (n.1(j)). The stun gun rendered
Young unconscious for a short time and afterward he complained of
nausea and of pain in his lower back, where two welts were visible.
However, there appears to have been no significant injury. Young was
briefly examined by medics, but, at the same time, he answered a
police officer's questions, then went to the spot where police had dis-
covered the abandoned Wells Fargo van and gave a written statement.
He was interviewed by the FBI on the two following days.

The government argues that because the term "dangerous weapon"
has been broadly construed by this Court and other circuit courts to
include various innocuous objects used as weapons and unloaded or
inoperable firearms used to threaten others, a stun gun should also
come within the definition of a dangerous weapon. The government
points out that the commentary to USSG § 2B3.1 directs that an
object which appears to be a dangerous weapon should be treated as
such. USSG § 2B3.1, comment.(n.2).

However, in this case the stun gun was not used to intimidate or
harm anyone other than Young, and then only to create the appear-
ance of a real robbery. Although a stun gun used to incapacitate or
threaten victims or bystanders would qualify for the enhancement, we
find that, in the particular circumstances of this case, the district court
made a factual decision which was not clearly erroneous. The two
cases principally relied on by the government are distinguishable. In

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United States v. Agron, 921 F.2d 25, 26 (2d Cir. 1990), the defendant
possessed a stun gun during a drug conspiracy and the Second Circuit
found that it qualified as a dangerous weapon under USSG
§ 2D1.1(b)(1). The potential for violence in connection with drug
dealing is well-established; therefore, a weapon capable of producing
even temporary impairment necessarily is a dangerous weapon in that
context. This Court's decision in United States v. Sturgis, 48 F.3d
784, 787-89 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3242
(U.S. Oct. 2, 1995) (No. 94-9367), deals with a conviction for assault
with a dangerous weapon under 18 U.S.C. § 113(c) (1988), (current
version at 18 U.S.C.A. § 133(a)(3) (West Supp. 1995)), rather than
with an enhancement under the sentencing guidelines. However,
Sturgis is instructive because it holds that the question of "whether a
particular object was used as a dangerous weapon is not so mechani-
cal that it can be reduced to a question of law." 48 F.3d at 788.
Rather, it involves "a functional inquiry into the use of the instrument
rather than a metaphysical reflection on its nature." Id. To the extent
that it is relevant in a guideline case, Sturgis supports the district
court's decision.

We therefore affirm Young's sentence with the exception of the
obstruction of justice adjustment. The sentence is vacated and
remanded for reconsideration of that issue. On remand, the district
court should make an independent finding that Young committed per-
jury, or that the adjustment is warranted on other grounds, or resen-
tence him without it. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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