USA v. Patrick L. Stitman, 05-2277.  In the summer of 2003, Patrick Stitman went on a bank robbery spree, hitting three banks on three separate occasions. Each time, he threatened to shoot or kill the bank teller, even though he was actually unarmed. During one robbery, Stitman told the bank teller that he had a gun and pointed to his hip, where the teller observed a "bulge."  The court imposed a sentence of 70 months in prison.

On appeal, Stitman argues that the district court clearly erred when it imposed the enhancement under § 2B3.1(b)(2)(E), because, rather than "brandishing or possessing" a dangerous weapon, he had merely concealed his hand in his pocket during the course of the bank robbery.

The application notes for the 2003 Sentencing Guidelines explicitly indicate that an object will be considered a "dangerous weapon" for purposes of subsection (b)(2)(E) if "the object closely resembles an instrument capable of inflicting death or serious bodily injury" or "the defendant used the object in a manner that created the impression that the object was an instrument capable of inflicting death or serious bodily injury." U.S.S.G. § 2B3.1(b)(2)(E), cmt. n.2.

The test is whether "a reasonable person, under the circumstances of the robbery, would have regarded the object that the defendant brandished, displayed or possessed as a dangerous weapon.

It is well established that "[a]n application note is binding authority ‘unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of’ that Guideline." United States v. Dyer, 464 F.3d 741, 743 (7th Cir. 2006).  Here, Stitman’s behavior, for all practical purposes, was identical to the example given in the Application Notes. The difference between wrapping a hand in a towel and concealing it in a pocket is inconsequential.

For the purposes of this enhancement, therefore, the type of object that the perpetrator uses to create the appearance of a dangerous weapon is irrelevant; what is important is whether the object creates an objectively reasonable belief that the perpetrator is armed.

It is the district court’s job to determine whether a particular item objectively created this impression. The district court here understood this and found that "Stitman’s behavior was such as to generate belief on the part of his observers, reasonable observers," that he was in possession of a weapon.

In the end, the 7th Circuit finds that the district court’s conclusion that Stitman’s actions were enough to lead an objective observer to believe that he was in possession of a gun was clear error.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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