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960 F.2d 115

Docket No. 91-50095.

United States v. Taylor

Ninth Circuit Court of Appeals

Submitted Feb. 6, 1992.*

Decided March 30, 1992.

Ninth Circuit Court of Appeals · decided 1992-03-30

2 counsel of record

Key passage — most relied on by later courts

“[a]lthough the gun carried by [defendant] was a plastic gun, the Sentencing Guidelines indicate that an object that appeared to be a dangerous weapon [should be treated] as a dangerous weapon”

quoted by 1 later decision, including United States v. Farrow

“intentionally created the appearance that he possessed a dangerous weapon, he told his victim he had a gun, and the victim reasonably believed that [he] was armed,”

quoted by 1 later decision, including United States v. Hart

Applies 18 U.S.C. § 2113

Relies on King v. Lynaugh · Wrenn v. Benson · United States v. Smith

Good law ✅— No negative treatment on recordhow we know

Opinion by Thomas Tang · Decided 1992-03-30

How this case has been cited

Cited by 29 later decisions — most recently February 2011 · most notably United States v. Dixon (1992), United States v. Bates (2000)

23 federal appellate ·

140199220002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*116Michael Alcala, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

¶2John J. Byrne, Jr., Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

¶3Before TANG, KOZINSKI and TROTT, Circuit Judges.

¶5TANG, Circuit Judge:

¶6Jeffrey Scott Taylor pleaded guilty to bank robbery. He appeals the district court’s enhancement of his sentence for brandishing, possessing, or displaying a dangerous weapon. Sentencing Guidelines § 2B3.2(b)(2)(C).

¶7Taylor robbed the Home Federal Bank in La Canada, California on September 29, 1990. Taylor approached the bank teller and handed her a note reading, in relevant part: “This is a hold up. I have a gun in the waistband of my pants.” Taylor then pulled up his shirt to reveal a t-shirt. Underneath the t-shirt, in the waistband of Taylor’s pants, was what appeared to be a gun. Taylor pulled the t-shirt tightly so that the teller saw the clear outline of a gun handle. Taylor, in fact, never denies that there was a gun in his waistband.

¶8On the basis of this evidence, the district court added a three-point enhancement in calculating Taylor’s sentence under the Sentencing Guidelines. We affirm.

¶9DISCUSSION

¶10Sentencing Guidelines § 2B3.2(b)(2)(C) instructs district courts to increase a defendant’s base offense level by three “if a dangerous weapon (including a firearm) was brandished, displayed, or possessed” by the defendant in the course of a robbery.1 Section 2B3.2(b)(2)(C), Application Note 1, incorporates Section lBl.l’s commentary defining “dangerous weapon.” This commentary states that, “[w]here an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon.” Sentencing Guidelines § 1B1.1, Application note 1(d) (emphasis added).

¶11The district court’s conclusion that Taylor possessed, brandished, or displayed what appeared to be a dangerous weapon was not clearly erroneous. See United States v. Heldberg, 907 F.2d 91, 93 (9th Cir.1990) (“We review a district court’s conclusion that a defendant possessed a firearm during the commission of an offense for clear error.”). Taylor’s conscious and deliberate display of the outline of a gun under his shirt, in conjunction with his note stating that he had a gun, instilled fear in his victim and facilitated the commission of the crime. Taylor also increased the risk that his actions would provoke a violent response by victims and/or the police. See United States v. Smith, 905 F.2d 1296, 1300 (9th Cir.1990) (Section 2B3.1(b)(2)(C) enhancement applies to an inoperable gun because the defendant’s conduct still “instills fear in the average citizen and creates the possibility of immediate, violent response.”).

¶12Whether Taylor actually possessed a functioning firearm is beside the point. He intentionally created the appearance that he possessed a dangerous weapon, he told his victim he had a gun, and the victim reasonably believed that Taylor was armed. Cf. Heldberg, 907 F.2d at 94 (Sentencing Guidelines § 2Dl.l(b)(l)’s enhancement for possession of a “dangerous weapon” applies to “an object that appears to be a dangerous weapon in the possession of a defendant during the commission of an offense”) (emphasis added); United States v. Martinez-Jimenez, 864 F.2d 664, 666-67 (9th Cir.) (toy gun constitutes a “dangerous weapon” within the meaning of 18 U.S.C. § 2113(d); “the robber’s creation of even the appearance of dangerousness is sufficient to subject him to enhanced punishment” because “the robber subjects victims *117to greater apprehension [and] ... creates a likelihood that the reasonable response of police and guards will include the use of deadly force.”), cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989).

¶13AFFIRMED.

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