United States v. Tate

999 F.3d 374

UNITED STATES of America, Plaintiff-Appellee,

v.Tre Reshawn TATE, Defendant-Appellant.

No. 20-5071

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 28, 2021

Rehearing En Banc Denied July 16, 2021

CHAD A. READLER, Circuit Judge.

For the crime of bank robbery, the Sentencing Guidelines establish a tiered structure of sentencing enhancements based upon how an individual effectuates the robbery. See U.S.S.G. § 2B3.1(b)(2). When a defendant discharges a firearm while robbing a bank, the Guidelines prescribe a seven-level increase to his base offense level. Id. § 2B3.1(b)(2)(A). Less serious conduct results in a smaller boost to one's offense level. For instance, a defendant who merely brandishes or possesses (but does not discharge) a firearm receives an increase of five offense levels. See id. § 2B3.1(b)(2)(C).

Near the lower end of this sentencing hierarchy is the setting in which a defendant brandishes or possesses a "dangerous weapon" while committing a robbery. Id. § 2B3.1(b)(2)(E). Doing so subjects the defendant to a three-level increase to his base offense level. Id. Tre Reshawn Tate received this three-level enhancement for concealing his hand in a bag to suggest the existence of a dangerous weapon while robbing a bank. Given the text and context of § 2B3.1(b)(2)(E), the district court correctly included the enhancement in Tate's sentence. We thus affirm.

BACKGROUND

A man wearing a black knit cap, sunglasses, and a dark jacket covering the lower portion of his face entered a bank with an opaque shoulder bag across his body. As he approached a bank teller, the man displayed a note that read: "You have 30 seconds to give me 20 thousand dollars in Big Bills an[d] I'll let Everyone live Don't Make A Sound!" The man then began audibly counting down from thirty. As he reached single digits, the man placed his right hand into his shoulder bag in a manner that led the teller to believe the robber was about to pull out a gun. The teller responded by reaching into a bank till to retrieve what ended up being $12,000 and handed it to the man. The man stuffed the cash into his bag and fled the scene.

While initially unsuccessful in apprehending the robbery suspect, officers did obtain several items used in the robbery, including the suspect's cap, jacket, and sunglasses. Forensic examiners were able to match a fingerprint found on the sunglasses to one that was recently added to an FBI database. The fingerprint was that of Tre Reshawn Tate, who lived a mile from the bank. Tate's age and physical characteristics also matched those of the robber. And after obtaining a search warrant for Tate's DNA, officers were able to confirm that Tate's DNA was found on the cap and jacket.

A federal grand jury indicted Tate on charges stemming from the robbery. Tate later pleaded guilty to violating 18 U.S.C. § 2113(a), the federal bank robbery statute. During sentencing, the probation office suggested adding three levels to Tate's total offense level in accordance with the "Specific Offense Characteristics" set out in U.S.S.G. § 2B3.1(b) due to Tate having "brandished or possessed" a "dangerous weapon" during a bank robbery. Tate objected, maintaining that there was insufficient evidence in the record to apply the § 2B3.1(b)(2)(E) enhancement because he did not possess a dangerous weapon during the robbery. Relying in part on a Guidelines application note indicating that a dangerous weapon can include using an object in a manner that creates the impression that the object was capable of inflicting serious injury, the district court overruled Tate's objection. From the resulting Guidelines imprisonment range of 41 to 51 months, the district court imposed a sentence of 41 months’ imprisonment. Tate's timely appeal followed.

ANALYSIS

Tate contends that his sentence is procedurally unreasonable because the district court incorrectly calculated his Guidelines range by applying § 2B3.1(b)(2)(E) ’s dangerous-weapon enhancement. According to Tate, the district court improperly deemed Tate's act of hiding his hand in a bag in a suggestive manner as amounting to "brandish[ing] or possess[ing]" a "dangerous weapon" worthy of applying the enhancement. To do so, says Tate, the district court had to expand the generally accepted meaning of the term "dangerous weapon" by reference to the Guidelines commentary section, thereby violating our command in United States v. Havis that the Guidelines’ "application notes are to be ‘interpretations of , not additions to , the Guidelines themselves.’ " 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (quoting United States v. Rollins , 836 F.3d 737, 742 (7th Cir. 2016) (en banc)) (holding that the Commission's use of commentary to expand the reach of an otherwise clear Guideline "deserves no deference"); see also United States v. Riccardi , 989 F.3d 476, 479 (6th Cir. 2021) ("But guidelines commentary may only interpret, not add to, the guidelines themselves."). Alternatively, Tate argues that even if the district court was correct in its reading of § 2B3.1(b)(2)(E), Tate's action of placing his hand in the shoulder bag falls outside the range of conduct to which the enhancement should apply.

1. When reviewing a sentence's procedural reasonableness, we ordinarily apply an abuse-of-discretion standard. See Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The government, however, asserts that our review of Tate's challenge to the calculation of his Guidelines range is confined to "plain error" due to Tate's failure to preserve the argument. On that score, we note that while Tate did challenge the application of the § 2B3.1(b)(2)(E) enhancement before the district court, the precise nature of his challenge was somewhat different than how he frames his argument today. Whether that distinction means Tate's argument today was unpreserved, and thus subject to plain error review, is a fair point of debate. Cf. United States v. Fleming , 894 F.3d 764, 771 (6th Cir. 2018) (evaluating the defendant's argument under both plain error and abuse of discretion where the defendant's general objection to an upward variance was "arguably sufficient to preserve" the specific procedural unreasonableness at issue). But we need not resolve that debate here, as Tate's challenge fails even under the more forgiving abuse-of-discretion standard, by which we review legal errors de novo. United States v. Stubblefield , 682 F.3d 502, 510 (6th Cir. 2012).

a. Section 2B3.1(b)(2)(E) imposes a three-level enhancement if a "dangerous weapon was brandished or possessed" during a covered robbery. The interpretative question Tate raises is whether one's hand, confined in a bag, amounts to a "dangerous weapon [ ] brandished or possessed" during his bank robbery. Tate believes it does not. A "dangerous weapon," says Tate, is not one's hand when covered in a bag. Instead, it must be something that, when used in its ordinary course, is "able or likely to cause injury [when] used against another." See Appellant's Br. at 18 (citing Merriam-Webster Dictionary's definition of "dangerous" and "weapon").

In matters of textual interpretation, however, "literal or dictionary definitions of words will often fail to account for settled nuances or background conventions that qualify the literal meaning of language and, in particular, of legal language." John F. Manning, The Absurdity Doctrine , 116 Harv. L. Rev. 2387, 2393 (2003). As a result, we customarily measure a term's meaning with an eye on the broader context in which the term appears as well as the term's original public meaning at the time of enactment. See United States v. Grant , 979 F.3d 1141, 1144 (6th Cir. 2020) (observing that a court should not "mechanistically pars[e] down each word of the statute to its dictionary definition, no matter the resulting reading that would give the law"); Antonin Scalia, A Matter of Interpretation 23 (1997) ("A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."). In other words, we do not woodenly interpret a legal text "in a vacuum," see Abramski v. United States , 573 U.S. 169, 179, 134 S.Ct. 2259, 189 L.Ed.2d 262 (2014), but instead discern "the meaning of a statement" in a law from the "context in which it is made," see United States v. Briggs , ––– U.S. ––––, 141 S. Ct. 467, 470, 208 L.Ed.2d 318 (2020). We customarily employ these settled principles in interpreting acts of Congress. See, e.g. , New Prime Inc. v. Oliveira , ––– U.S. ––––, 139 S. Ct. 532, 539, 202 L.Ed.2d 536 (2019). So too our interpretation of the Sentencing Commission's words, which are a product of delegated authority for rulemaking akin to an administrative agency when enacting a legislative rule. See Stinson v. United States , 508 U.S. 36, 44, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) ; see also United States v. Reaves , 253 F.3d 1201, 1203 (10th Cir. 2001) ("We interpret the Sentencing Guidelines according to accepted rules of statutory construction.").

Turning to the use of the phrase "dangerous weapon" in the federal robbery Guidelines, the phrase's meaning encompasses not only objects that are per se dangerous, but also those that, by their objective appearance, create the possibility of danger. Telling here is the fact that the Supreme Court adopted this reading of the phrase "dangerous weapon" in an analogous context just a year before the Guidelines first employed the term. In McLaughlin v. United States , a unanimous Supreme Court held that the term "dangerous weapon" as used in 18 U.S.C. § 2113(d) —a statutory penalty enhancement applicable to one who uses a dangerous weapon during a bank robbery—extended to the use of an unloaded gun during the robbery. 476 U.S. 16, 17–18, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986). Employing a functional approach to that phrase, the Supreme Court provided three "independently sufficient"...