Section 2B3.1(b)(2) of the United States Sentencing Guidelines imposes a three-level enhancement if a “dangerous weapon was brandished or possessed” during a bank robbery. But what if there is no weapon? What if the conduct amounts only to placing a hand into a shoulder bag in a manner that led a bank teller to believe that the robber was about to pull a gun? Doesn’t matter, as the Sixth Circuit is held in United States v. Tate that a hand in a bag is a “dangerous weapon.”
The defendant in Tate entered a bank with “an opaque shoulder bag across his body,” handed the teller a note demanding money and threatening harm before placing “his right hand into a shoulder bag in a manner that led the teller to believe the robber was about to pull out a gun.” There was no gun; there was only a hand, and so the question was “whether one’s hand, confined in a bag, amounts to a ‘dangerous weapon [] brandished or possessed’ during [a] bank robbery.”
The sentencing guidelines do not include a definition of “dangerous weapon.” Instead, definition of the term is provided by commentary stating that the term “dangerous weapon” means what a dangerous weapon actually is, “an instrument capable of inflicting death or serious bodily injury” and also something that is not “an instrument capable of inflicting death or serious bodily injury” but looks like it could be, that is, something that “closely resembles” an actual dangerous weapon. U.S.S.G. § 1B1.1 cmt. n.1(E); § 2B3.1 cmt. n.2.
The Sixth Circuit has recently held in two different cases, one sitting en banc, that commentary to the sentencing guidelines may not be used to expand the scope of terms used in the guidelines. United States v. Havis, 927 F.3d 382 (6th Cir. 2019)(en banc), and, United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021). The rationale for these decisions being that the sentencing commission is the equivalent of an administrative agency and lacks the power to make laws or expand laws through use of commentary, since Congress does not review commentary. That seems to be exactly what is happening when the term “dangerous weapon” is construed to include something that can actually cause harm and something that merely resembles closely something that could cause harm. Nevertheless, the Sixth Circuit majority ruled that the Supreme Court holding in McLaughlin v. United States, 476 U.S. 16 (1986), that the term “dangerous weapon” extended to the use of an unloaded gun during the robbery control the issue and the sentencing commission had merely followed this lead. So, an actual but unloaded gun is the equivalent of a mere hand? Not something the prototypical “ordinary English speaker” would think possibly true, but, in the end, what does that really mean?
Tate, most obviously, is a decision intended to limit the scope of Havis. It also errs in disregarding the directives in 18 U.S.C. § 994 that the sentencing guidelines are to be consistent with “all pertinent provisions of any Federal statute,” 18 U.S.C. § 994(a), and “all pertinent provisions of title 18, United States Code.” The error being that “dangerous weapon” is defined in title 18 of the United States Code at § 930(g)(2) as follows: “a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length." Title 18 of the United States Code has spoken to the question of whether a “dangerous weapon” can mean also something that merely resembles one or even someone’s hand; the Sixth Circuit has ignored this express statutory definition and its analysis is incorrect and flawed.
Comments