Before: Becker, Chief Judge, and Stapleton, Circuit Judge, and Pollak,* District Judge. * Honorable Louis H. Pollak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
The opinion of the court was delivered by: Pollak, District Judge.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Criminal No. 96-cr-00162
Section 2B3.1 of the Sentencing Guidelines establishes offense levels for those federal crimes which constitute types of "robbery." The base offense level is 20. U.S.S.G. § 2B3.1. Enhancement of the base offense level is mandated whenever the generic crime of robbery has especially hurtful consequences (e.g., serious bodily injury or the loss of property of great value) or is carried out in conjunction with any of the other forms of disapproved conduct that the Sentencing Commission has particularized under the heading "Specific Offense Characteristics." Thus, sub-section (b)(2) of § 2B3.1 calls for offense-level enhancements of the base offense level ranging from two levels, "if a threat of death was made," U.S.S.G. § 2B3.1(b)(2)(F), to seven levels, "[i]f a firearm was discharged." U.S.S.G. § 2B3.1(b)(2)(A). A five-level enhancement is called for "if a firearm was brandished, displayed, or possessed." U.S.S.G. § 2B3.1(b)(2)(C). It is the proper construction of this latter provision that is placed in issue in this appeal.
The precise question presented by this appeal is whether a firearm concealed on the person of one who is committing a bank robbery is "a firearm" which, within the meaning of U.S.S.G. § 2B3.1(b)(2)(C), "was possessed" (emphasis added). In calculating appellant's sentence, the district court found that the firearm was "possessed," and accordingly added five levels to the base offense level. We agree with the district court's reading of the guideline, and we therefore affirm.
Between May and August of 1996, four Pittsburgh banks were robbed, and bank surveillance photographs taken at the time of the robberies suggested that one person had committed all four robberies. On October 4, 1996, FBI agents were assigned to patrol downtown Pittsburgh with a view to finding the robber. One of the agents spotted a man -- Leslie Thomas Weadon -- who looked like the surveillance photographs, and he was arrested. When arrested, Weadon had a gun in the waistband of his trousers. Subsequent to his arrest Weadon acknowledged that he had committed the four bank robberies and that he had carried a gun in his pocket on three of the four occasions. On October 8, 1996, Weadon was indicted on four counts of bank robbery in contravention of 18 U.S.C. § 2113(a).
On November 29, 1996, Weadon pleaded guilty to the four-count indictment. Hearings on sentence were held on April 17 and April 24, 1997, and sentence was imposed on the latter date. Over defense counsel's objection that Weadon's concealed weapon played no part in any of the three bank robberies in which he had it in his pocket, the district court added five points to the base offense level on the ground that Weadon's having the firearm on his person during the robberies meant that he "possessed" the firearm within the meaning of U.S.S.G. § 23B.1(b)(2)(C) (five level enhancement "if a firearm was brandished, displayed, or possessed"). The five-level enhancement resulted in an offense level of 28 and (since Weadon had no prior criminal record and hence was in criminal history category I) a guideline incarceration range of 78-97 months.*fn1 The district court imposed a prison term of 78 months. (But for the five-level enhancement, the guideline range would have been 46 to 57 months). In appealing his sentence, Weadon challenges the district court's reading of U.S.S.G. § 23B.1(b)(2)(C) as mandating a five-level enhancement. Our review of a district court's interpretation of the sentencing guidelines is de novo. United States v. Dixon, 982 F.2d 116 (3d Cir. 1992), cert. denied, 508 U.S. 921 (1993).
As explained above, at Weadon's sentencing his base offense level was enhanced by five levels pursuant to the directive of U.S.S.G. § 2B3.1(b)(2)(c) that "if," in the course of a robbery, "a firearm was brandished, displayed, or possessed, increase by five levels." As noted, the predicate for the enhancement was the fact that Weadon had a gun in his pocket during three of the four robberies to which he pleaded guilty.
On appeal Weadon contends that carrying a gun in one's pocket is not possession of that gun within the intendment of the quoted guideline. Weadon argues "that `possessed' should be construed similarly to `brandished' or `displayed,' and that the guideline should not be applied to enhance a sentence where the firearm was not utilized during the robbery." In support of these linked contentions Weadon makes two linked arguments. The argument that the guideline is without application unless the firearm has been "utilized during the robbery" draws upon the fact that Application Note 4 of the Sentencing Commission's Commentary on § 2B3.1 specifies that "[t]he combined adjustments for weapon involvement and injury are limited to a maximum enhancement of 11 levels;" the Commentary's use of the phrase "weapon involvement" is said by Weadon to evidence "a clear intention that for the enhancement to apply, the firearm must be actively used or employed to further the goals of the robbery." The argument that " `possessed' should be construed similarly to `brandished' or `displayed' " is based upon the ejusdem generis ...