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United States v. Pope

February 3, 2009

UNITED STATES OF AMERICA, APPELLEE,
v.
STEVEN W. POPE, ALSO KNOWN AS STEVEN WILLSAM, ALSO KNOWN AS STEPHEN POPE, ALSO KNOWN AS STEVEN MCQUEEN, ALSO KNOWN AS STEVE W. POPE, ALSO KNOWN AS STERN W. POPE, ALSO KNOWN AS WILLIAM S. POPE, DEFENDANT-APPELLANT.



SYLLABUS BY THE COURT

Defendant Steven W. Pope appeals from a February 28, 2008 judgment of the United States District Court for the Eastern District of New York (Sandra L. Townes, Judge) convicting him, following a guilty plea, of two counts of bank burglary, in violation of 18 U.S.C. § 2113(a). The District Court sentenced defendant principally to seven years of imprisonment pursuant to an upward departure. On appeal, Pope makes two central arguments: (1) that his sentence was procedurally unreasonable because the District Court erroneously applied a two-level enhancement to Pope's base offense level under Section 2B2.1(b)(4) of the United States Sentencing Guidelines, for possession of a dangerous weapon; and (2) that the non-guidelines sentence was substantively unreasonable because it was more than twice the maximum recommended sentence under the Guidelines and the variance was based only on Pope's criminal history. We hold today that Section 2B2.1(b)(4) requires only possession of a dangerous weapon, and therefore applies even if a defendant did not use the object in question as a weapon in the course of committing the crime. We conclude that the sentence was both procedurally and substantively reasonable.

Affirmed.

The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge

Argued: January 16, 2009

Before: CABRANES and LIVINGSTON, Circuit Judges, and EATON, Judge.*fn1

Defendant Steven W. Pope appeals from a February 28, 2008 judgment of the United States District Court for the Eastern District of New York (Sandra L. Townes, Judge) convicting him, following a guilty plea, of two counts of bank burglary, in violation of 18 U.S.C. § 2113(a). The District Court sentenced defendant, pursuant to an upward departure, to seven years of imprisonment, three years of supervised release, restitution of $2,244.55, and a special assessment of $200. On appeal, Pope makes two central arguments: (1) that his sentence was procedurally unreasonable because the District Court erroneously applied a two-level enhancement to Pope's base offense level pursuant to Section 2B2.1(b)(4) of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), for possession of a dangerous weapon; and (2) that the non-guidelines sentence was substantively unreasonable because it was more than twice the maximum sentence under the Guidelines and was based only on Pope's criminal history. For the reasons set forth below, we conclude that the sentence was both procedurally and substantively reasonable, and accordingly affirm the judgment of the District Court. We write to clarify that U.S.S.G. § 2B2.1(b)(4) requires only possession of a dangerous weapon; it applies even if the defendant did not use the object in question as a dangerous weapon in the course of committing the crime.

BACKGROUND

I. Factual Overview

On October 19, 2006, Pope burglarized a branch of Citibank in Brooklyn, New York. He was among a group of individuals that entered the bank by cutting a hole in the fence between the bank and the adjacent property, and breaking the bank's rear window. They then forced open the safes located in the bank's teller area and stole approximately $1,078.78.

On July 22, 2007, Pope burglarized a Chase Bank branch in Queens, New York. He and at least one other person broke a side window of the bank, using a sledgehammer. They then stole approximately $1,165.77 in coins from coin safes located in the bank's teller area.

Based upon the facts of these two burglaries, a federal grand jury in the Eastern District of New York returned an indictment on August 2, 2007, charging Pope with two counts of bank burglary, in violation of 18 U.S.C. § 2113(a), and two counts of bank theft, in violation of 18 U.S.C. § 2113(b). On September 21, 2007, Pope pleaded guilty to the two counts of bank burglary, pursuant to a plea agreement.

In anticipation of sentencing, the United States Probation Office ("Probation Office") prepared a Presentence Investigation Report ("PSR"). The PSR set forth a base offense level of twelve for each of the bank burglaries, pursuant to U.S.S.G. § 2B2.1(a)(2). (We note that the statutory maximum for each count was twenty years. See 18 U.S.C. § 2113(a).) The PSR then applied, pursuant to U.S.S.G. § 2B2.1(b)(4), a two-level enhancement for possession of a deadly weapon because Pope had used a sledgehammer to break into the Chase Bank branch during the July 22, 2007 burglary. Pursuant to U.S.S.G. § 3D1.4, two points were added to reflect Pope's conviction of two counts of burglary. The adjusted, combined offense level for both burglaries was sixteen, which was then reduced by three levels for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b). The final adjusted offense level was calculated to be thirteen.

The PSR also noted Pope's extensive criminal history, and it assigned him fourteen criminal history points for four prior convictions. First, on January 30, 1992, Pope was convicted of attempted burglary of a pharmacy in Queens, New York. Second, on June 15, 1994, he was convicted of attempted burglary of a beverage distribution center in Hempstead, New York. Third, on September 26, 2001, Pope was convicted of burglarizing a Rite Aid store in New York, New York. Fourth, on May 30, 2001, he was convicted of attempted possession of dangerous contraband in prison. Pope received three criminal history points for each of these four convictions, for a total of twelve points. Furthermore, because he committed the 2006 and 2007 bank burglaries while still on parole for his 2001 burglary conviction, Pope was assigned two additional criminal history points, for an adjusted total of fourteen points, establishing a criminal history ...


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