                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-2242
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Peter Clayton Wingate,                 *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: February 9, 2004
                                Filed: June 2, 2004
                                 ___________

Before RILEY and RICHARD S. ARNOLD, Circuit Judges, and HOVLAND,1
      District Judge.
                          ___________

RILEY, Circuit Judge.

     Peter Clayton Wingate (Wingate) pled guilty to an armed robbery he committed
when he was eighteen years old. At sentencing, the district court2 increased
Wingate’s offense level for using a person under eighteen years old to commit the


      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.
      2
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
offense or to assist in avoiding detection or apprehension. Wingate appeals his
sentence. We affirm.

I.     BACKGROUND
       On September 27, 2002, Wingate robbed the Valley Bank and Trust in New
Ulm, Minnesota, taking approximately $81,579. Earlier in the day, Wingate set a
diversionary car fire in New Ulm to draw police attention away from the bank.
Wingate carried a .22 caliber Henry survival rifle in his pants during commission of
the robbery, but did not display it. Wingate told the teller to open the safe, informed
her he had two accomplices outside, and said anyone who attempted to exit the bank
before he left would be shot. Weeks before the bank robbery, Wingate met with two
minors, J.B., age 17, and A.C., age 16, to discuss and plan the robbery.

        Federal Bureau of Investigation Special Agent Michael Dudley (Special Agent
Dudley) interviewed Wingate following his arrest. During the interview, Wingate
stated he and Gary Dey (Dey) originally devised the plan for the robbery. The two
had discussed a diversion, and decided they needed others to assist them.
Approximately two weeks to one month before the robbery, Wingate and Dey met
with A.C. and J.B. at J.B.’s house. During the meeting, Wingate and Dey described
the robbery to the minors, the minors agreed to cooperate, and all involved agreed to
split the robbery proceeds.

        In his plea agreement, Wingate agreed he set the diversionary car fire in a
salvage yard in New Ulm. At the change of plea hearing, Wingate again admitted he
set the diversionary fire, and also said the two minors, J.B. and A.C., helped set the
fire. Later, Wingate stated that, although the two minors were not with him when he
set the fire, J.B. and A.C. dropped Wingate off at the salvage yard and, after he set the
fire, they picked him up and drove to A.C.’s house to pick up a scanner. From there,
Wingate, J.B., and A.C. drove to J.B.’s house, then the two minors drove Wingate to
a wooded area near the bank, where Wingate surveilled the bank for approximately

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thirty minutes before robbing it. At some point during the robbery, unknown to
Wingate, the two minors came to the bank and stayed outside. Wingate testified he
thought the two minors would leave the area after they dropped him off at the bank.

      After the robbery, Wingate ran to a river nearby, but eventually went to J.B.’s
house and spent the night there. Later, Wingate split the stolen money with five
people, including J.B. and A.C. In a written confession, Wingate admitted all the
people with whom he had divided the robbery proceeds had, in some way, helped
plan or prepare for the robbery, and the two minors “helped me the day of the
robbery, before the robbery.”

       At Wingate’s sentencing hearing, the district court applied a two-level
enhancement under section 3B1.4 of the United States Sentencing Guidelines
(Guidelines). The district court found the applicable guideline range was 78 to 97
months, and sentenced Wingate to 78 months. Wingate appeals, arguing (1) the
enhancement for use of a minor under section 3B1.4 exceeds its authorizing
legislation and does not apply to a defendant under twenty-one years of age, and (2)
the facts do not support a finding Wingate “used” a minor.

II.    DISCUSSION
       A.     Standard of Review
       “The correct application of the guidelines is a question of law subject to de
novo review, while a factual determination of the sentencing court is reviewed under
a clearly erroneous standard.” United States v. Tirado, 313 F.3d 437, 440 (8th Cir.
2003) (citation omitted).

      B.     Authority to Promulgate Section 3B1.4
      Wingate argues the United States Sentencing Commission (Commission)
exceeded its authority when it promulgated section 3B1.4, contending this section’s
authorizing legislation “expressly limited any enhancement to defendants aged 21

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years or older.” Conversely, the government claims the Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. 103-322 § 140008, 108 Stat. 1796 (1994),
directed that defendants twenty-one years and older receive the two-level
enhancement, not that defendants eighteen to twenty years old were not to receive the
enhancement. Because the authorizing legislation did not exclude eighteen to twenty-
year-olds from the coverage of the enhancement, the government argues, the
Commission had authority to adopt section 3B1.4 in its current form.

       Under the Violent Crime Control and Law Enforcement Act of 1994, Congress
directed the Commission to promulgate an enhancement providing that “a defendant
21 years of age or older . . . shall receive an appropriate sentence enhancement if the
defendant involved a minor in the commission of the offense.” Pub. L. 103-322
§ 140008(a), 108 Stat. 1796. The Commission’s guideline mandates a two-level
enhancement if a defendant used or attempted to use someone under eighteen years
old “to commit the offense or assist in avoiding detection of, or apprehension for, the
offense.” U.S.S.G. § 3B1.4 (2003). The guideline, however, does not mention “what
age a defendant needed to be for the guideline to apply.” United States v. Kravchuk,
335 F.3d 1147, 1158 (10th Cir. 2003).

       Congress has granted the Commission “significant discretion in formulating
guidelines for sentencing convicted federal offenders.” United States v. LaBonte,
520 U.S. 751, 757 (1997) (citation omitted). Due to the Commission’s expertise,
courts defer to the Commission’s interpretation of a Congressional directive as long
as the interpretation is consistent with the directive’s plain language. United States
v. Murphy, 254 F.3d 511, 512 (4th Cir. 2001). Unless the guideline is “at odds” with
the Congressional directive, the Commission also has discretion to enlarge the class
of defendants to whom a particular enhancement applies. United States v. Ramsey,
237 F.3d 853, 857 (7th Cir. 2001) (citing LaBonte, 520 U.S. at 757).




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       Three circuits have ruled section 3B1.4 may be applied to defendants under
twenty-one years old. Kravchuk, 335 F.3d at 1158-59; Murphy, 254 F.3d at 513;
Ramsey, 237 F.3d at 858. In Kravchuk, the Tenth Circuit recognized the Fourth
Circuit in Murphy and the Seventh Circuit in Ramsey “note that Congress certainly
intended the enhancement to apply to those over twenty-one, but that Congress’s
directive made no mention of any special policy for those under twenty-one.”
Kravchuk, 335 F.3d at 1158. Accordingly, the Tenth Circuit ruled the Congressional
directive does not conflict with section 3B1.4’s plain language and, thus, the
guideline is valid. Id. at 1158-59.

       Conversely, the Sixth Circuit found section 3B1.4 inapplicable to defendants
under age twenty-one. United States v. Butler, 207 F.3d 839, 849-52 (6th Cir. 2000)
(Jones, J., concurring and writing for the court in ruling section 3B1.4 inapplicable
to defendants under age twenty-one).3 The court in Butler opined the Commission
“failed to comport with a clear Congressional directive when it eliminated the
requirement that the defendant be at least twenty-one years old to be subject to
enhancement under U.S.S.G. § 3B1.4.” Id. at 849 (Jones, J., concurring).

      “When construing the Guidelines, we look first to the plain language, and
where that is unambiguous we need look no further.” United States v. Ashley, 342
F.3d 850, 852 (8th Cir. 2003) (citation omitted). We conclude section 3B1.4’s
wording does not directly conflict with the plain language of Congress’s directive,
which requires the enhancement apply to defendants age twenty-one and over. The
Commission’s guideline encompassed Congress’s directive because, under section
3B1.4, defendants over age twenty-one will receive the enhancement. The
enhancement merely extends the application to defendants under age twenty-one.


      3
      The Sixth Circuit majority opinion on the issue of the applicability of section
3B1.4 was actually contained in a concurring opinion, written on behalf of two judges
and addressing section 3B1.4. Butler, 207 F.3d at 849-52 (Jones, J., concurring).

                                         -5-
Ramsey, 237 F.3d at 858. Although Congress stated the guideline “shall” apply to
defendants over twenty-one years old, the guideline does not automatically exclude
its application to those under age twenty-one. We have previously observed
Congress gave the Commission “broad authority” to promulgate the Guidelines.
United States v. Webb, 214 F.3d 962, 965 (8th Cir. 2000). We join the Fourth,
Seventh, and Tenth Circuits in holding section 3B1.4 is not contrary to the
Congressional directive, and section 3B1.4 validly applies to defendants under age
twenty-one. See Kravchuk, 335 F.3d at 1158-59.

      C.    Facts Supporting Application of Section 3B1.4
      Wingate also argues the facts do not support a finding he actually “used”
minors during the bank robbery. Wingate claims the term, “use” requires “active
employment,” and he did not “actively employ” the minors. Instead, Wingate
contends the minors were more of an “audience” than “participants.”

       Under section 3B1.4, an enhancement is appropriate “[i]f the defendant used
or attempted to use a person less than eighteen years of age to commit the offense.”
“‘Used or attempted to use’ includes directing, commanding, encouraging,
intimidating, counseling, training, procuring, recruiting, or soliciting.” U.S.S.G.
§ 3B1.4, cmt. n.1. In United States v. Warner, 204 F.3d 799, 800-01 & n.2 (8th Cir.
2000), we held the district court did not plainly err in applying the enhancement
where the defendant suggested to undercover officers that he would leave his
daughter with the officers while he took the officers’ money to his drug supplier. In
United States v. Pospisil, 186 F.3d 1023, 1031-32 (8th Cir. 1999), we affirmed an
enhancement, without requiring active involvement, when a defendant encouraged
minors to participate in a cross burning, although the minors apparently did nothing
except attend a speech the defendant gave on “white power,” shortly before the cross
burning. In Pospisil, we focused on the defendant’s acts rather than any affirmative
acts on the part of the minors involved. See id. at 1031-32 (concluding the district
court did not err in finding the defendant “encouraged” the minors).

                                         -6-
       Focusing on Wingate’s actions in this case, the district court properly assessed
the two-level enhancement. Wingate recruited and solicited the two minors to help
him commit the crime. Wingate admitted to Special Agent Dudley that he discussed
the plan for the robbery with the two minors and others. On one occasion, Wingate
admitted the minors helped him create the diversionary car fire, presumably because
the two minors transported Wingate to and from the diversionary fire site. The
minors later dropped Wingate at the bank robbery site. At sentencing, the bank’s vice
president testified Wingate threatened the tellers by saying both Wingate and people
outside the bank would harm them.

       The district court found Wingate, not the minors, conceived the idea for a
diversionary fire. The district court further found, although the minors did not
participate in the fire, the minors knew Wingate was setting the fire and picked him
up after he lit it. The district court noted the agreement to split the booty of the bank
robbery among Wingate, the minors, and others.

       Wingate affirmatively acted to involve the minors in the offense and to assist
him in accomplishing the bank robbery. But for Wingate’s conduct, J.B. and A.C.
would not have been involved in this crime. Accordingly, the district court’s factual
findings at sentencing regarding Wingate’s use of minors during the commission of
the offense were not clearly erroneous, and the district court properly applied the two-
level enhancement under section 3B1.4.

III.   CONCLUSION
       For the reasons stated, we affirm.
                       ______________________________




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