                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              FEB 4 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,                      No. 03-7063
           v.                                     Eastern District of Oklahoma
 KEVIN G. MAXWELL,                                   (D.C. No. 03-CR-015-P)

                  Defendant-Appellant.


                              ORDER AND JUDGMENT           *




Before EBEL , MURPHY , and McCONNELL , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore submitted without oral argument.

       Appellant Kevin G. Maxwell, a first time offender, robbed a bank in Durant

Oklahoma, armed with nothing more than his hand inside his jacket pocket, which



       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the teller believed was a weapon. Specifically, he approached the teller and told

her to place all her money in a white bag, starting with the “big bills.” At least

twice he told her to hurry. When the teller asked him to repeat what he had said,

he moved his hand inside his coat, which led her to believe he had a weapon.

Throughout the duration of the robbery, he kept his hand in his coat. The bank

surveillance camera showed him at the teller station with his right hand reaching

across his torso, concealed inside his jacket. At one point, he said to her: “You

better have more than that.” After receiving the money, Mr. Maxwell apologized

to the teller, left the building, and was apprehended twenty minutes later with the

money but with no weapon.

      Mr. Maxwell confessed and later pleaded guilty to the bank robbery,

without a plea agreement. At sentencing, he received a three-level enhancement

under U.S.S.G. §2B3.1(b)(2)(E), which applies “if a dangerous weapon was

brandished or possessed” during the course of a robbery. The district court

explained that “[t]he guideline enhancement pursuant to §2B3.1(b)(2)(E) does

apply when a defendant creates an impression [he] possess[es] an object capable

of inflicting death or serious bodily injury.” The court found the Guideline

applicable, noting that Mr. Maxwell moved his hand inside his coat in response to

a question from the teller, and kept his hand in his jacket for the remainder of the

encounter, “which suggested to her the presence of a weapon and created a


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perceived threat.” The district court also observed that Mr. Maxwell had made a

“threatening remark,” namely: “You better have more than that.” The court

concluded by finding that “the defendant’s actions did indeed create the

impression that the defendant possessed a dangerous weapon.”

       On appeal, Mr. Maxwell concedes that an enhancement under

§2B3.1(b)(2)(E) does not require that the defendant actually have a dangerous

weapon; it is sufficient that “the defendant ‘used the object in a manner that

created the impression that the object’ was a dangerous weapon.” Appellant’s Br.

6, quoting §2B3.1, comment (n.2). He argues, however, that under the facts of

this case, the district judge erred in his conclusion that the enhancement applies.

       In reviewing a district court’s finding that the defendant possessed a

dangerous weapon within the meaning of §2B3.1(b)(2)(E), this court reviews for

clear error, meaning that we ask whether the findings are adequately supported in

the record and not clearly erroneous.     United States v. Farrow , 277 F.3d 1260,

1268 (10th Cir. 2002). We review        de novo Mr. Maxwell’s claim that the district

court did not apply the correct legal standard.    Id. at 1262.

       Numerous decisions of this and other courts have found that a concealed

hand may be the basis for an enhancement under §2B3.1(b)(2)(E). See, e.g.,

Farrow , id. ; United States v. Abbott , 69 Fed. Appx. 936, 937 (10th Cir. 2003)

(unpublished); United States v. Souther , 221 F.3d 626, 629 (4th Cir. 2000);


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United States v. Dixon , 982 F.2d 116, 121 (3d Cir. 1992). In   Farrow , this Court

held that whether a robber has created an impression that he has a dangerous

weapon must be evaluated under an objective standard: whether a reasonable

person would perceive the object (here, Mr. Maxwell’s hand inside his jacket

pocket) as a dangerous weapon. 277 F.3d at 1268.

       The mere fact that the victim perceived that the defendant had a weapon is

not dispositive.   Id. at 1268. As we said in Farrow , “boundaries must be drawn to

insure that innocent conduct is not punished due solely to potentially

unreasonable perceptions of particular victims.”    Ibid. Courts must examine the

totality of the evidence, including words spoken and the surrounding context, to

determine whether it was reasonable for the victim to think that the defendant was

wielding a weapon. In Farrow , for example, the bank robbery defendant held his

hand inside a pocket and told the teller: “don’t try anything funny. Don’t make a

scene or I’ll do something reckless.”   Id. at 1261-62. In Abbott , the robber said:

“This is a robbery! Hand over all cash. Please don’t cause anyone to be hurt!” 69

Fed. Appx. at 937.   1



       In concluding that Mr. Maxwell’s actions reasonably gave the impression

that he was in possession of a dangerous weapon, the district court did not rely

solely on the subjective reaction of the teller, but properly considered the entire


       1
           We cite Abbott not as binding precedent but simply as an illustration.

                                           -4-
context, including the timing of the movement of his hand to his pocket (in

reaction to a question from the teller), its duration (until the end of the robbery),

and his potentially threatening words (“You better have more than that”). We

cannot say that the court’s conclusion was clear error. Mr. Maxwell’s actions

themselves are not distinguishable from those that the Court found worthy of the

enhancement in Farrow . While the words spoken by Mr. Maxwell were less

obviously threatening than those in    Farrow and Abbott , the district court did not

clearly err in deeming them “threatening.” Mr. Maxwell has admitted that the

teller was “intimidated” by his actions; it stands to reason that she was

intimidated because she thought he carried a weapon.

       Appellant also argues that the district court implicitly applied an erroneous

legal standard, because it did not consider evidence of his lack of intent. We do

not think the district court erred. As we have explained, the standard for judging

whether an object used by a robber is reasonably perceived as a dangerous

weapon is objective. While the intention of the defendant and the perception of

the victim may be relevant evidence, neither is a necessary or conclusive element.

To be sure, as Appellant points out, this Court in        Farrow referred to evidence

suggesting that the defendant had an intent to convey the impression he was

carrying a weapon, but the Court did not suggest this was anything more than one

element in the totality of the circumstances.         Farrow , 277 F.3d at 1268.


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     The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED .

                                                  Entered for the Court,



                                                  Michael W. McConnell

                                                  Circuit Judge




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