                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0676n.06
                          Filed: September 17, 2007

                                            No. 06-2009

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE WESTERN
               v.                                         )        DISTRICT OF MICHIGAN
                                                          )
MICHAEL JOSIAH WINTERS,                                   )
                                                          )
      Defendant-Appellant.                                )
__________________________________________                )



BEFORE: COLE and GRIFFIN, Circuit Judges; and WATSON, District Judge.*

       GRIFFIN, Circuit Judge.

       Defendant Michael Josiah Winters appeals his 264 month sentence, contending that the

district court erred in failing to subtract two levels from his offense level for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a). Because the district court did not commit clear error

in denying Winters a reduction for acceptance of responsibility, we affirm Winters’ sentence.

                                                  I.

       On March 30, 2005, at approximately 9 a.m., Winters entered the Chemical Shore Line Bank

in Sister Lakes, Michigan. Upon entering, Winters approached a teller, Christine Mead, but found

that she was on the phone with a customer. Winters then retreated to a table in the lobby, wrote out

       *
        The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 06-2009
United States v. Winters


a demand note, and again approached the teller to tender the note. As Mead was still on the phone

with a customer, Winters paced back and forth in front of her window. He then drew from his

waistband a non-functioning black BB gun, which resembled a .45 caliber pistol. Winters pointed

the weapon at the teller and told her to hang up the phone. Winters then ordered the teller and a

trainee to lie on the floor and demanded that they not look at him or move. He jumped over the half

door that separated the customer area from the employee area and took an ATM bag from the counter

that contained approximately $6,000.

       Winters then approached the vault and confronted the branch manager, Barb Fisher, and Sue

Hebner, another employee. He pointed his weapon at Hebner and ordered Fisher to lie on the floor

and not to look at him. Winters ordered Hebner to provide him with a bag. He then demanded a

second, larger bag, and directed Hebner to open it. Because Hebner’s hands were shaking

uncontrollably, she was unable to open the bag as directed, and Winters grabbed the bag out of her

hands. He proceeded to fill the bag with money from the vault, taking approximately $47,000.

Winters then left, taking a total amount of $53,270 from the bank.

       Defendant was arrested on May 25, 2005, in Harvey, Illinois, and charged with armed bank

robbery, in violation of 18 U.S.C. § 2113(a) and (d). On January 23, 2006, Winters entered a plea

of guilty in front of a United States Magistrate Judge pursuant to a plea agreement. During

preparation of the Presentence Investigation Report (“PSR”), the investigator determined that

Winters had pointed the weapon at the bank employees and had acted in a manner that qualified as

“otherwise using” a dangerous weapon as provided in U.S.S.G. § 2B3.1(b)(2)(D) and recommended


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United States v. Winters


a four-level upward adjustment to Winters’ offense calculation. Winters disputed these findings,

instead claiming that he had always kept the weapon pointed towards the floor and that he had made

no verbal threats. According to Winters, this conduct merely constituted brandishing, rather than

“otherwise using” a weapon. Based on these denials, the investigating officer concluded that

Winters was not truthful in his representations and recommended that he be denied a two-level

“acceptance of responsibility” reduction to his offense calculation.

       The district court conducted an evidentiary hearing, receiving testimony from two of the

bank’s employees. The employees testified that Winters had pointed the weapon at them and made

loud demands, directly contravening Winters’ version of the robbery. The district court concluded

that Winters had mischaracterized the events of the robbery in an attempt to minimize his conduct

and subsequently denied Winters a two-level “acceptance of responsibility” reduction. In addition,

the district court determined that Winters qualified as a career offender pursuant to U.S.S.G. § 4B1.1,

resulting in an offense level of 34 and a criminal history category of VI. U.S.S.G. § 4B1.1(b). The

recommended Guideline custody range for such an offender is 262 to 300 months.1 Winters was

sentenced to 264 months. He now timely appeals.

                                                  II.

       Winters argues that the district court erred in refusing to grant him a two-point reduction in



       1
        An offense level of 34 and criminal history score of VI would typically yield a sentencing
range of 262 to 327 months. As the Guideline maximum may not exceed the statutory maximum,
the upper end of the range is reduced to 300 months. U.S.S.G. § 5G1.1(c)(1) (2006); 18 U.S.C.
§ 2113(d) (indicating 25 year maximum sentence).

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United States v. Winters


sentence based on acceptance of responsibility. First, Winters contends that, because he is a career

offender, his offense level is determined solely by the provisions of U.S.S.G. § 4B1.1(b), and that

any of his statements regarding his conduct during the robbery cannot constitute a denial of either

an element of the offense or of relevant conduct. He therefore opines that Application Note 1 of

U.S.S.G. § 4B1.1(b) explicitly precludes denial of his reduction in sentence. Second, Winters argues

that the court erred in its factual findings regarding his conduct and asserts that he merely

brandished, rather than “otherwise used,” his weapon during the course of the robbery. Although

he admits that this determination is irrelevant to the actual calculation of his offense level, he

contends that this issue affected the district court’s decision regarding his acceptance of

responsibility.

       The United States Sentencing Guidelines provide for a two-level reduction to a defendant’s

offense level, provided that the defendant “clearly demonstrates acceptance of responsibility for his

offense.” U.S.S.G. § 3E1.1(a). The Application Notes state:

       1.     In determining whether a defendant qualifies under subsection (a), appropriate
       considerations include, but are not limited to, the following:

                  (a) truthfully admitting the conduct comprising the offense(s) of
                  conviction, and truthfully admitting or not falsely denying any
                  additional relevant conduct for which the defendant is accountable
                  . . . . Note that a defendant is not required to volunteer, or
                  affirmatively admit, relevant conduct beyond the offense of
                  conviction in order to obtain a reduction under subsection (a). A
                  defendant may remain silent in respect to relevant conduct beyond the
                  offense of conviction without affecting his ability to obtain a
                  reduction under this subsection. However, a defendant who falsely
                  denies, or frivolously contests, relevant conduct that the court
                  determines to be true has acted in a manner inconsistent with

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No. 06-2009
United States v. Winters


               acceptance of responsibility.

                                                ***

       3.      Entry of a plea of guilty prior to the commencement of trial combined with
       truthfully admitting the conduct comprising the offense of conviction, and truthfully
       admitting or not falsely denying any additional relevant conduct for which he is
       accountable . . . will constitute significant evidence of acceptance of responsibility
       for purposes of subsection (a). However, this evidence may be outweighed by
       conduct of the defendant that is inconsistent with such acceptance of responsibility.
       A defendant who enters a guilty plea is not entitled to an adjustment under this
       section as a matter of right.

U.S.S.G. § 3E1.1, cmt. n.1 and n.3.

       Defendant bears the burden of proving by a preponderance of the evidence that a sentence

reduction for acceptance of responsibility is warranted. United States v. Banks, 252 F.3d 801, 806

(6th Cir. 2001) (citing United States v. Benjamin, 138 F.3d 1069, 1075 (6th Cir. 1998)). The district

court’s factual determinations regarding Winters’ acceptance of responsibility will only be disturbed

if the court’s findings were clearly erroneous. United States v. Bolden, 479 F.3d 455, 464 (6th Cir.

2007) (citing United States v. Brown, 367 F.3d 549, 556 (6th Cir. 2004)); see also U.S.S.G. § 3E1.1,

cmt. n.5 (“The sentencing judge is in a unique position to evaluate a defendant’s acceptance of

responsibility. For this reason, the determination of the sentencing judge is entitled to great

deference on review.”). “Questions of law, however, such as the appropriate application of a

guideline to a particular set of facts, are subject to de novo review.” Banks, 252 F.3d at 806 (citing

United States v. Morrison, 983 F.2d 730, 732 (6th Cir. 1993)).

       Based on Winters’ testimony during his change of plea hearing and his statements during his

interview with Pretrial Services, the investigating officer believed that Winters denied relevant

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United States v. Winters


conduct pertaining to his behavior during the robbery. On that basis, the officer recommended

against granting a two-point reduction under U.S.S.G. § 3E1.1(a) for acceptance of responsibility.

Winters objected to this recommendation, stating that he always pointed his weapon towards the

floor and denied making threats to bank employees. Winters’ denials prompted the district court to

hold an evidentiary hearing as to Winters’ conduct during the robbery.

       The district court received testimony from Christine Mead, the teller that Winters initially

approached during the robbery. She testified that Winters pointed his weapon at her face and loudly

ordered her to hang up the phone. Winters then instructed her, along with another teller, to lie on

the floor. Mead testified that she feared for her safety. Winters confronted another bank employee,

Sue Hebner, at the bank’s vault. She testified that Winters pointed his weapon at her face and

ordered her not to look at him.     He further ordered Hebner to provide him with a bank bag,

demanded a larger bag, and then ordered her to open the bag. Hebner testified that she feared that

she would be shot or otherwise harmed if she did not comply with Winters’ commands.

       Based on this testimony, the district court found that Winters minimized his conduct by

denying that he pointed his weapon at bank employees, denying that he ordered Mead to hang up the

phone, and denying that he ordered employees to lie on the floor. Accordingly, the district court

concluded that Winters did not fully accept responsibility for the forceful and violent aspects of his

offense. A district court’s decision to deny a two-point reduction under U.S.S.G. § 3E1.1(a) is

appropriate when it determines the defendant’s behavior is inconsistent with acceptance of

responsibility. U.S.S.G. § 3E1.1, cmt. n.3. Indeed, a “‘defendant who enters a guilty plea is not


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No. 06-2009
United States v. Winters


entitled to an adjustment under this section as a matter of right.’” United States v. Turner, 324 F.3d

456, 463 (6th Cir. 2003) (quoting U.S.S.G. § 3E1.1, cmt. n.3); United States v. Guthrie, 144 F.3d

1006, 1012 (6th Cir. 1998).

       Winters’ argument that his misstatements are immaterial because they did not affect the

Guideline calculation ignores the plain language of U.S.S.G. § 3E1.1(a), cmt. n.1. While the

provision states that a defendant need not volunteer or admit conduct that is not relevant to the

offense, it contains no license to affirmatively misrepresent conduct to the court or to the

investigating pretrial services officer. In fact, the comment cautions that false denials of relevant

facts are inconsistent with acceptance of responsibility. U.S.S.G. § 3E1.1, cmt. n.1 and n.3.

Moreover, we have upheld denials of sentence reductions even where the deceitful conduct could

not affect the defendant’s sentencing range. See, e.g. Bolden, 479 F.3d at 460 (denial appropriate

when defendant who had already pleaded guilty did not assist in recovery of property stolen by co-

conspirators); Guthrie, 144 F.3d at 1012 (denial warranted when defendant who had already pleaded

guilty blamed actions on bad advice of counsel and did not assist in recovering fruits of his offense);

see also United States v. Wallace, No. 93-3287, 1994 WL 43460 (6th Cir. Feb. 14, 1994)

(unpublished) (upholding denial where defendant blamed actions, in part, on poor advice).2 As these



       2
         In Banks, even though we vacated the denial of a U.S.S.G. § 3E1.1(a) reduction on the
grounds that post-plea criminal conduct that gave rise to the denial was unrelated to the underlying
offense, we nevertheless contemplated that an acceptance of responsibility reduction could later be
denied “if the defendant gives false information to his probation officer and/or refuses to provide all
financial information requested by his probation officer, or gives false information during his plea
proceedings. . . .” 252 F.3d at 807.

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United States v. Winters


cases demonstrate, minimizing one’s conduct is a sufficient basis to deny an acceptance of

responsibility reduction.

        Insofar as Winters’ second point is relevant, we have squarely addressed the issue of whether

pointing a weapon at a victim during a robbery constitutes “otherwise using” a weapon, rather than

mere brandishing. See Bolden, 479 F.3d at 461; see also U.S.S.G. § 1B1.1 cmt. n.1(C) and (I)

(2006). In Bolden, we distinguished between displaying a firearm with an intent to intimidate, which

is brandishing, and pointing a firearm at an individual and making a demand, which constitutes use

beyond brandishing. Bolden, 479 F.3d at 461. We reasoned that the pointing of a firearm at an

individual, coupled with a verbal order, conveys the implicit threat that failure to comply with

instructions will result in immediate use of the weapon. Id. By contrast, merely brandishing the

weapon in an attempt to intimidate an individual conveys only the mere possibility that the device

may be used, but there is no imminent threat of use. Id.

        The district court did not err in determining that Winters’ conduct constituted use beyond

mere brandishing. Like the assailants in Bolden, Winters pointed his weapon and issued orders, but

did not explicitly threaten violence. Even without a specific, elucidated threat, Winters’ conduct is

sufficient to convey the message that failure to comply would result in being shot. Bolden, 479 F.3d

at 461. Indeed, Mead and Hebner feared that they would be harmed if they did not follow Winters’

instructions.3


        3
        Moreover, Winters’ reliance on United States v. Moerman, 233 F.3d 379 (6th Cir. 2000) and
United States v. Kushmaul, 147 F.3d 498 (6th Cir. 1998) is misplaced as these cases predate the 2000
United States Sentencing Guideline definition of “brandished.” As we explained in Bolden, the pre-

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United States v. Winters


                                                III.

       Based on the foregoing reasons, we affirm the judgment of the district court.




2000 definition of “brandished” meant “the weapon was pointed or waived about, or displayed in
a threatening manner.” 479 F.3d at 462 (quoting U.S.S.G. § 1B1.1 cmt. n.1(C) (1998)). Similarly,
as “otherwise using” means something more than simple brandishing, a defendant, prior to 2000,
would have to do something more than point or waive about his weapon in order to receive the
“otherwise using” adjustment. Id. In the 2000 version of the Guidelines, the definition of “brandish”
was modified to its current definition of “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.” U.S.S.G. § 1B1.1 cmt. n.1(C)
(2006). As we observed in Bolden, pointing a weapon at an individual and issuing a command goes
beyond mere brandishing under the post-2000 definition. 479 F.3d at 462.

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