United States v. Chandler

104 F.4th 445

UNITED STATES of America v. James CHANDLER, Appellant

No. 22-1786

United States Court of Appeals, Third Circuit

Argued April 26, 2023

Filed: June 11, 2024

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-21-cr-00049-001), District Judge: Honorable R. Barclay Surrick

Abigail E. Horn [ARGUED], Federal Community Defender Office, Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant

Eileen C. Geiger [ARGUED], Justin Oshana, U.S. Attorney's Office, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Before: JORDAN, KRAUSE, and BIBAS, Circuit Judges

OPINION OF THE COURT

JORDAN, Circuit Judge.

James Chandler used a fake gun to twice rob on-duty United States Postal Service employees. In one of the robberies, he also kidnapped his victim. His use of what appeared to be a revolver was meant to scare his victims into compliance, and it did. The District Court therefore did not err when it enhanced Chandler's sentence for using the replica gun in the robberies and the kidnapping, nor in accepting his guilty plea to armed robbery charges. As for the kidnapping, Chandler's motivation was, at least in part, that the mail carrier was a government employee, so a further sentence enhancement was justified. We will therefore affirm his conviction and sentence.

I. BACKGROUND

Early one evening, a uniformed mailman parked his delivery truck in West Philadelphia and began his rounds. Chandler walked up behind him, pulled out what appeared to be a handgun, and pressed the muzzle to his back. Chandler was wearing a blue zip-up sweatshirt emblazoned with the letters "USPS." He threatened to kill the mailman and demanded packages, cards, and cash. He then forced the mailman to get into the back of the truck, before fleeing with four packages and several dollars.

A few weeks later, Chandler struck again. This time, the victim was a mail carrier who had parked her mail truck in West Philadelphia, half a mile from the location of the first robbery. Chandler, wearing the same USPS sweatshirt, again approached from behind and pointed the same fake revolver at his victim. He made her open the truck and put about three dozen packages into sacks. Under duress, she drove him to an address a mile away. Chandler then fled with the packages.

The next day, police arrested Chandler. In his waistband, they found the revolver, which turned out to be a gun replica that could not be fired. The postal carrier he robbed identified him and he confessed to stealing packages. He consented to a search of his apartment, where postal inspectors found the blue zip-up USPS sweatshirt stuffed inside a pillowcase.

Chandler was charged with two counts of armed robbery of a postal worker, under 18 U.S.C. § 2114(a), and one count of kidnapping a government employee, under § 1201(a)(5). He pled guilty to all three charges. As relevant here, the parties disputed two enhancements at sentencing: one, for using a dangerous weapon during a kidnapping and a robbery, U.S.S.G. §§ 2A4.1(b)(3), 2B3.1(b)(2)(D), and the other, for kidnapping a government employee, id. § 3A1.2(a)(1)(A), (a)(2). Agreeing with the government, the sentencing judge imposed both enhancements. Those rulings resulted in a final offense level of 37 and a guidelines range of 262 to 327 months. The judge sentenced Chandler to the bottom of that range: 262 months' imprisonment, with 5 years of supervised release.

Chandler now appeals the application of those two enhancements, arguing that the judge erred in holding that a replica of a gun constitutes a dangerous weapon, and further erred in holding that his kidnapping of the second mail carrier was motivated by her status as a government employee. He also appeals his conviction for armed robbery, rather than unarmed robbery, again arguing that a replica firearm is not a dangerous weapon.¹

II. DISCUSSION²

A. Under the Guidelines, a Replica Firearm Is a "Dangerous Weapon"³

The sentencing guidelines provide for enhanced sentences for both kidnapping and robbery if "a dangerous weapon" was used. Id. §§ 2A4.1(b)(3) (kidnapping); 2B3.1(b)(2)(D) (robbery). Chandler contests the dangerous-weapon enhancements to both his robbery and kidnapping charges, given that he did not use a real gun. "The government bears the burden of proving by a preponderance of the evidence that" the enhancements are applicable. United States v. Napolitan, 762 F.3d 297, 309 (3d Cir. 2014).

The relevant guidelines sections do not define "dangerous weapon," but the guidelines' commentary defines the term to include, besides "an instrument capable of inflicting death or serious bodily injury,"

an object that is not an instrument capable of inflicting death or serious bodily injury but [ ] closely resembles such an instrument; or [something] the defendant used . . . in a manner that created the impression that the object was such an instrument (e.g., a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun).

U.S.S.G. § 1B1.1 cmt. n.1(E).

That comment informed our jurisprudence for more than 30 years, but reliance on it has recently become questionable.⁴ The Supreme Court held in Kisor v. Wilkie, 588 U.S. 558, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019), that courts must perform a "now-essential" textual analysis before turning to the commentary. See United States v. Adair, 38 F.4th 341, 349-50 (3d Cir. 2022) (citing Kisor, 139 S. Ct. at 2415-18). Unless the guideline's text is ambiguous and the comment provides clarity, the text alone controls. United States v. Nasir, 17 F.4th 459, 471 (3d Cir. 2021) (en banc).

Ambiguity is thus the key to permissible reliance on the guideline's commentary. The Supreme Court has instructed that a regulation is "genuinely ambiguous . . . after a court has resorted to all the standard tools of interpretation" and come up short. Kisor, 139 S. Ct. at 2414. "[O]nly when that legal toolkit is empty and the interpretive question still has no single right answer can a judge . . . wave the ambiguity flag[.] . . . To make that effort, a court must carefully consider the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on." Id. at 2415 (cleaned up).

Even if genuine ambiguity does exist, we still will not defer to the agency's reading unless it is reasonable. Id. The commentary must clarify the ambiguity rather than change the meaning of the text. Kisor, 139 S. Ct. at 2415-16. If the commentary is reasonable, we afford it controlling deference; but only if the agency's interpretation: (1) was "one actually made by the agency"; (2) "implicate[s the agency's] substantive expertise"; and (3) "reflect[s] fair and considered judgment." Id. at 2416-17 (internal quotation marks omitted).

Chandler says that the term "dangerous weapon" is not genuinely ambiguous so we cannot rely on the commentary. Alternatively, he argues that, even if the term is ambiguous, the commentary is an unreasonable interpretation of the guideline.

We are unpersuaded by his arguments for two reasons. First, the term "dangerous weapon" is indeed genuinely ambiguous, being subject to a range of views, so we can rely on the Sentencing Commission's commentary to reasonably interpret the phrase to include replica firearms. Second, the meaning of the words "dangerous weapon," as understood from Supreme Court precedent at the time the pertinent guideline, § 1B1.1, was promulgated, encompassed replica firearms, thus making the commentary reasonable and entitled to controlling weight. We address each of those points more fully in turn.

1. The Phrase "Dangerous Weapon" Is Genuinely Ambiguous

Federal courts have grappled for many years with the scope of the term "dangerous weapon" in sentencing decisions.⁵ This debate continued with the recent split decision of the Sixth Circuit in United States v. Tate, a case involving a bank robber who placed his hand in a shoulder bag in a manner that led the teller to believe that the robber was about to pull out a gun. 999 F.3d 374, 376 (6th Cir. 2021). A majority of the panel affirmed the application of the dangerous-weapon sentencing enhancement but one judge saw the matter differently and concluded that "[n]o ordinary English speaker . . . would say that a robber possesses a dangerous weapon when the robber merely pretends to possess one." Id. at 386 (Murphy, J., concurring) (emphasis in original). The majority held, however, that "literal or dictionary definitions of words will often fail to account for settled nuances or background conventions that qualify the literal meaning . . . of legal language." Id. at 378 (majority opinion) (internal quotation marks omitted). In the majority's view, "creating the impression of possessing a gun can trigger the sentencing enhancement applicable to robberies." Id. at 381.

Our dissenting colleague in this case, like the concurring judge in Tate, defines "dangerous weapon" as "one by the use of which a fatal wound may probably or possibly be given." Dissent at 461 (quoting Dangerous Weapon, Black's Law Dictionary (5th ed. 1979); and citing Dangerous Weapon (def. 1), Ballentine's Law Dictionary (3d ed. 1969), and Weapon (def. 1), Webster's Third New International Dictionary (1966)). This ends the debate for him. And that definition of course fits the words, but it is not the only meaning. Both the Black's and Ballentine's definitions encompass a broader definition of the words "dangerous weapon" than the dissent suggests.

The Black's definition notes that "the manner of use enters into the consideration as well as other circumstances[.]" Dangerous Weapon, Black's Law Dictionary (5th ed. 1979). Similarly, later, the sixth edition of the same dictionary says that "[w]hat constitutes a 'dangerous weapon' depends not on nature of the object itself but on its capacity, given manner of...