United States v. Ortiz

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT ORTIZ, Defendant-Appellant.

No. 22-2061

United States Court of Appeals, Tenth Circuit

February 24, 2023

D.C. No. 1:21-CR-00280-JB-1, D.N.M.

Before MORITZ, SEYMOUR, and EID, Circuit Judges.

ORDER AND JUDGMENT^[*]

Nancy L. Moritz Circuit Judge

Robert Ortiz challenges his 57-month sentence for carjacking on three grounds. Finding no error, we affirm.

Background

In November 2020, Ortiz-unemployed, unhoused, and suffering from drug addiction, posttraumatic stress disorder, anxiety, and depression-was inside a laundromat trying to obtain quarters from the washing machines. As he was doing so, Ortiz noticed a BMW parked outside. He approached the vehicle, opened the driver's-side door, and demanded the keys from the passenger (who was the only person in the vehicle at that time). When the passenger resisted, Ortiz pulled out a BB gun, pointed it at him, and again demanded the keys.^[1] The passenger told Ortiz that he did not have the keys. Ortiz then returned to the laundromat, located the driver, and demanded the keys while pointing the BB gun at the driver's chin. The driver gave Ortiz the keys and told the passenger to exit the vehicle. Ortiz then drove away in the BMW. Although neither victim was injured, both believed Ortiz intended to shoot them.

Four days later, officers saw Ortiz run a red light while driving the BMW. Ortiz attempted to flee but was arrested after a short chase. The government indicted Ortiz for carjacking. He pleaded guilty without a plea agreement.

Before sentencing, the United States Probation Office prepared a presentence investigation report (PSR). As relevant here, the PSR recommended adding four levels to Ortiz's base offense level under the United States Sentencing Guidelines (the Guidelines or U.S.S.G.) because he "otherwise us[ed]" a dangerous weapon during the offense. U.S.S.G § 2B3.1(b)(2)(D). The PSR set Ortiz's total offense level at 23, which, when combined with a criminal history category of III, produced an advisory Guidelines sentencing range of 57 to 71 months.

Ortiz objected to the four-level enhancement for otherwise using a dangerous weapon under § 2B3.1(b)(2)(D), arguing that his conduct warranted only a three-level enhancement under § 2B3.1(b)(2)(E) for brandishing a dangerous weapon. He accordingly advocated for a total offense level of 22 and a resulting Guidelines range of 51 to 63 months.

Before the sentencing hearing, the district court issued an order overruling Ortiz's objection. After surveying caselaw from the Tenth Circuit and virtually every other circuit, the district court explained that for the otherwise-used enhancement to apply, the threat posed to the victim must be specific rather than general. The district court then determined that Ortiz used the BB gun to create a specific threat by pointing the BB gun at the victims and demanding the keys to the BMW. Although the district court agreed with Ortiz that the cases affirming otherwise-used enhancements typically involved more egregious conduct, it rejected his argument that the Guidelines impose a "proportionality requirement" for sentencing. R. vol. 1, 45. The district court therefore concluded that Ortiz's conduct amounted to otherwise using the BB gun, meriting the four-level enhancement.

At his sentencing hearing, Ortiz argued for a sentence of 41 months below his Guidelines range. In support, he cited negative experiences in his upbringing, his extensive substance-abuse history, and his need for treatment and education. He also reiterated that his conduct was less egregious than that typically captured by the otherwise-using enhancement in § 2B3.1(b)(2)(D), warranting a lower sentence. The district court ultimately imposed a sentence within, but at the bottom of, the Guidelines range-57 months in prison plus three years of supervised release-and later issued a written order memorializing and further explaining its sentencing decision.

Ortiz appeals, raising three issues.

Analysis

I. Otherwise Using a Dangerous Weapon

Ortiz first argues that the district court erred in applying the four-level enhancement under § 2B3.1(b)(2)(D) for "otherwise us[ing]" a dangerous weapon during the offense. In his view, he should have only received a three-level enhancement for "brandish[ing]" under § 2B3.1(b)(2)(E). "We review the factual findings underlying a district court's sentencing determination for clear error and review the underlying legal conclusions de novo." United States v. Marrufo, 661 F.3d 1204, 1206 (10th Cir. 2011) (italics omitted) (quoting United States v. Hooks, 551 F.3d 1205, 1216 (10th Cir. 2009)).

Section 2B3.1 incorporates the definitions for the terms otherwise used and brandished from U.S.S.G. § 1B1.1's application notes. See § 2B3.1 cmt. n.1. Those application notes define otherwise used as "conduct [that] did not amount to the discharge of a [dangerous weapon] but was more than brandishing, displaying, or possessing a . . . dangerous weapon." § 1B1.1 cmt. n.1(J). And brandished "means that all or part of the weapon was displayed, or the presence of the weapon was otherwise made known to another person, in order to intimidate that person, regardless of whether the weapon was directly visible to that person." § 1B1.1 cmt. n.1(C).

We distinguish between otherwise using a dangerous weapon and brandishing a dangerous weapon by looking at specificity of the threat-we will affirm the otherwise-used enhancement when the defendant pointed a weapon at a victim to create a specific rather than general threat of harm. See, e.g., United States v. Gilkey, 118 F.3d 702, 705 (10th Cir. 1997); United States v. Rucker, 178 F.3d 1369 (10th Cir. 1999).^[2] For instance, in Gilkey, the defendant robbed a diner and pointed his weapon directly at various victims while making various demands:

[H]e (1) pointed [the weapon] at the victims, (2) used it to threaten them, (3) pointed it at one victim's head while grabbing and lifting her neck and demanding money, and (4) grabbed another victim, forced him to an office area while pointing the gun at him, and demanded that he open the safe and provide money.

118 F.3d at 705 (emphases added). We held that the defendant's use of the gun to threaten the victims specifically and directly and to force them to move according to his instructions constituted conduct more culpable than brandishing, even though it was unclear whether physical contact between the gun and the victims occurred or whether the defendant verbalized a threat to kill. Id. In so doing, we explained that the "specific rather than general pointing of the gun" elevated the gun's use from mere brandishing to otherwise using. Id. at 706; see also United States v. Roberts, 898 F.2d 1465, 1469-70 (10th Cir. 1990) (holding that defendant otherwise used knife by placing it against victim's throat from behind while demanding money at ATM).

Two years later, we relied on Gilkey to similarly hold that a defendant had otherwise used a dangerous weapon when he "pointed a gun . . . at the [victims] while ordering them to comply with his demands." Rucker, 178 F.3d at 1371 (emphasis added).

Other circuits likewise "distinguish[] between the general pointing or waving about of a weapon, which amounts to 'brandishing,' and the pointing of a weapon at a specific victim or group of victims to force them to comply with the robber's demands." United States v. Johnson, 199 F.3d 123, 126 (3d Cir. 1999); see also id. (collecting cases, including Gilkey, from five circuits).^[3] In fact, "[v]irtually all of the circuits to address the question have held that where a dangerous weapon is pointed at a person and some further verbal threat or order accompanies the pointing of the weapon to facilitate commission of the underlying crime," the otherwise-used enhancement should apply. United States v. Yelverton, 197 F.3d 531, 534 (D.C. Cir. 1999) (collecting cases, including Gilkey, from seven circuits). And as in this circuit, the rationale underlying this "majority view suggests that the key consideration is whether a gun (or other weapon) was pointed at a specific person in an effort to create fear so as to facilitate compliance with a demand, and ultimately to facilitate the commission of the crime." Id.

Notwithstanding this consensus, Ortiz contends that pointing a weapon at a victim, even coercively, constitutes only brandishing, not otherwise using. But Ortiz's only authority for this point is a dissent from the Ninth Circuit. See United States v. Albritton, 622 F.3d 1104, 1108-12 (9th Cir. 2010) (Berzon, J., dissenting). And Ortiz acknowledges our precedent and the weight of authority from other circuits holding that pointing a weapon to convey a specific threat can constitute otherwise using that weapon. We therefore reject Ortiz's argument that pointing a gun at a victim can never constitute otherwise using it.

Shifting gears, Ortiz concedes that pointing a weapon may sometimes constitute otherwise using that weapon, but he stresses that a defendant must do more than merely point a dangerous weapon for pointing to cross the line from brandishing into otherwise using. And in Ortiz's view, mere pointing is all he did here. But Ortiz did not merely point the BB gun. Instead, as the district court found and as the government emphasizes, he pointed the BB gun directly at the victims to force them to comply with his demands for the keys to the car. In particular, recall that when the passenger first resisted Ortiz's demands for the car keys, Ortiz pulled out the BB gun, pointed it at him, and demanded the keys a second time. And after learning that the keys were not in the car, Ortiz then located the driver, pointed the BB gun at his chin, and demanded the...