United States v. Beadion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-30197

Plaintiff-Appellee,

v.  D.C. No.

CR-03-00181-JWS

JOE CHARLES BEAUDION,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the District of Alaska

John W. Sedwick, District Judge, Presiding

Argued and Submitted

February 18, 2005—Seattle, Washington

Filed July 19, 2005

Before: Betty Binns Fletcher and Ronald M. Gould,

Circuit Judges, and Samuel P. King,* District Judge.

Opinion by Judge Gould

*The Honorable Samuel P. King, Senior United States District Judge

for the District of Hawaii, sitting by designation.

8475

UNITED STATES v. BEAUDION 8477

COUNSEL

Kevin F. McCoy, Assistant Federal Defender, Anchorage,

Alaska, for the defendant-appellant.

8478 UNITED STATES v. BEAUDION

Mark A. Rosenbaum, Assistant U.S. Attorney, Anchorage,

Alaska, for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge:

Joe Charles Beaudion appeals the sentence resulting from

his guilty plea to one count of bank robbery, in violation of

18 U.S.C. § 2113(a), and one count of use of a firearm in rela-

tion to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1). The district court sentenced Beaudion to 33

months for bank robbery and 84 months for “brandishing” the

firearm in the robbery, with the latter period determined in

accordance with the graduated scale of mandatory minimum

sentences in § 924(c)(1)(A)(i)-(iii). Beaudion challenges the

district court’s decision to apply the mandatory minimum sen-

tence for “brandishing” the firearm, rather than for simple

“use” of the firearm, which provides a lower minimum sen-

tence. Beaudion argues that the statutory terms “use” and

“brandish” are ambiguous, and that as a result the statutory

scheme provides two different sentences for the same con-

duct. Beaudion also argues that, under Blakely v. Washington,

124 S. Ct. 2531 (2004), and United States v. Booker, 125

S. Ct. 738 (2005), the factual determination of “brandishing”

for purposes of establishing a statutory minimum sentence

must be admitted by the defendant or proved by a jury beyond

a reasonable doubt. We have jurisdiction pursuant to 18

U.S.C. § 3742, and we affirm.

I

At about 11 a.m. on December 16, 2003, Joe Beaudion

entered the Wells Fargo Bank in Eagle River, Alaska wearing

a ski mask and carrying a sawed-off .22 caliber rifle and a

duffel bag.1 With the rifle in plain view, Beaudion approached

1

These facts are taken from Beaudion’s Presentence Report, which was

adopted expressly by the district court in its findings of fact.

UNITED STATES v. BEAUDION 8479

a bank teller window, saying, “No one has to get hurt. Just

hand over the large bills.” He removed a plastic grocery bag

from his duffel bag, placed the grocery bag on the teller’s

counter, and repeated, “Hand over the large bills.” Beaudion

also set his rifle in open view on the counter, without taking

his hand off it. Moving to the next teller window, Beaudion

again placed his rifle on the counter, took out another bag,

and repeated, “Give me all your money, give me the large

bills.”

Beaudion repeated this routine with the remaining three

tellers. During that time he left the rifle displayed on the sec-

ond teller’s counter and walked back and forth in front of all

the tellers, demanding, “Don’t give me the little stuff, give me

the big stuff, want the big stuff.” The tellers complied by

stuffing money in the grocery bags. When the tellers were fin-

ished, Beaudion collected the bags, retrieved his rifle, and left

the bank. He drove to a nearby bar where he was arrested sev-

eral hours later.

The grand jury returned a two-count indictment charging

Beaudion with bank robbery in violation of 18 U.S.C.

§ 2113(a) and (d) and with using a firearm in connection with

the robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

Count two charged that Beaudion “did knowingly use, carry,

and brandish” a firearm in connection with the robbery

charged in count one. Beaudion pleaded guilty to both counts.

He acknowledged carrying the rifle during the robbery, and

that everyone in the bank saw him with the rifle, but he dis-

puted that his conduct constituted brandishing. The district

court concluded that Beaudion brandished the weapon during

the bank robbery and sentenced him to the statutory seven-

year minimum for brandishing. The district court also sen-

tenced Beaudion to 33 months for the robbery pursuant to the

permissible sentencing range of the United States Sentencing

8480 UNITED STATES v. BEAUDION

Guidelines, for a total of 117 months. Beaudion timely

appealed.2

II

Beaudion argues that there is no distinction between “use”

and “brandish” under 18 U.S.C. § 924(c) because “one cannot

use a firearm without also brandishing it.” In his view, the

statutory scheme metes out two different punishments for the

same conduct. In light of this alleged ambiguity and in accor-

dance with the rule of lenity, see United States v. Jolibois, 294

F.3d 1110, 1113 (9th Cir. 2002),3 Beaudion requests we

vacate the seven-year portion of his sentence assessed pursu-

ant to the “brandishing” mandatory minimum sentence, and

remand for re-sentencing with the mandatory minimum sen-

tence established at five years for the “use” of a firearm.

[1] Our analysis begins with the plain language of § 924(c).

See, e.g., Gwaltney of Smithfield, Inc. v. Chesapeake Bay

Found., Ltd., 484 U.S. 49, 56 (1987) (“It is well settled that

‘the starting point for interpreting a statute is the language of

the statute itself.’ ”); see also Wilderness Soc’y v. U.S. Fish

& Wildlife Service, 353 F.3d 1051, 1060 (9th Cir. 2003) (en

banc). 18 U.S.C. § 924(c)(1) provides a three-tier sentencing

framework, increasing the mandatory minimum sentence in

correlation to the severity of the firearm’s involvement with

the crime:

[A]ny person who, during and in relation to any

crime of violence or drug trafficking crime . . . uses

2

We review de novo a district court’s interpretation of a federal statute.

May Trucking Co. v. Oregon Dep’t of Transp., 388 F.3d 1261, 1265 (9th

Cir. 2004). We also review de novo whether a sentence was imposed ille-

gally. United States v. Hanna, 49 F.3d 572, 576 (9th Cir. 1995).

3

The rule of lenity generally “requires the sentencing court to impose

the lesser of two penalties where there is an actual ambiguity over which

penalty should apply.” Jolibois, 294 F.3d at 1113.

UNITED STATES v. BEAUDION 8481

or carries a firearm, or who, in furtherance of any

such crime, possesses a firearm, shall, in addition to

the punishment provided for such crime of violence

or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not

less than 5 years;

(ii) if the firearm is brandished, be sentenced to a

term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a

term of imprisonment of not less than 10 years.

“Brandish” is defined in subsection (D)(4):

For purposes of this subsection, the term “brandish”

means, with respect to a firearm, to display all or

part of the firearm, or otherwise make the presence

of the firearm known to another person, in order to

intimidate that person, regardless of whether the fire-

arm is directly visible to that person.

18 U.S.C. § 924(c)(1)(D)(4). To “brandish” a weapon for pur-

poses of § 924(c)(1), then, requires: 1) the open display of the

firearm, or knowledge of the firearm’s presence by another in

some manner, and 2) the purpose of intimidation.

[2] Next we must determine the statutory meaning of “use,”

which is not defined by § 924(c). First, the Supreme Court has

construed “use” in analyzing a previous version of § 924(c),

determining that “use” meant “active employment,” or some-

thing more than simple possession. See Bailey v. United

States, 516 U.S. 137, 149-51 (1995) (holding that defendants

who passively stored firearms for later use could not be con-

sidered “using” a firearm for the purposes of § 924(c)), super-

seded by statute as stated in United States v. Grace, 367 F.3d

29, 35 & n.4 (1st Cir. 2004). The Court in Bailey gave some

8482 UNITED STATES v. BEAUDION

examples: “The active-employment understanding of ‘use’

certainly includes brandishing, displaying, bartering, striking

with, and, most obviously, firing or attempting to fire a fire-

arm. . . . [E]ven an offender’s reference to a firearm in his

possession could satisfy § 924(c)(1).” Id. at 148. Under the

Court’s interpretation in Bailey, “use” would encompass other

actions besides “brandishing,” like the “bartering” of a fire-

arm, which belies Beaudion’s premise that the terms overlap

completely. Id.; see also Smith v. United States, 508 U.S. 223,

240-41 (1993) (holding that the exchange of a firearm for nar-

cotics constitutes “use” of a firearm under § 924(c)(1)).4

[3] Second, when terms are not otherwise defined, we must

interpret them “as taking their ordinary, contemporary, com-

mon meaning.” Perrin v. United States, 444 U.S. 37, 42

(1979). “Use” commonly has numerous meanings which,

unlike the statutory definition of “brandish,” are not limited

by intimidatory purpose nor knowledge of the firearm by

another. 2 THE NEW SHORTER OXFORD ENGLISH DICTIONARY

4

Subsequent congressional amendment of § 924(c)(1) superseded the

Court’s holding in Bailey that possession of a firearm was insufficient to

trigger the five-year mandatory minimum sentence. See 18 U.S.C.

§ 924(c)(1)(A), as amended by Pub. L. No. 105-386, 112 Stat. 3469

(1998) (adding possession of a firearm in furtherance of the crime as

action sufficient to apply the five-year mandatory minimum sentence).

Because “the meaning of statutory language, plain or not, depends on con-

text,” King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991), we must also

consider how the post-Bailey 1998 amendment of § 924(c)(1) altered the

meaning of “use.” Bailey, 516 U.S. at 143 (“ ‘Use’ draws meaning from

its context, and we will look not only to the word itself, but also to the

statute and the sentencing scheme, to determine the meaning Congress

intended.”).

The addition of “possess[ion] [of] a firearm” clearly broadens the realm

of possible conduct that qualifies for the five-year mandatory minimum

sentence. The 1998 amendments also added the definition of “brandish.”

See Pub. L. 105-386, 112 Stat. 3469 (1998). That Congress added a spe-

cific and narrow definition for “brandish” while simultaneously broaden-

ing the type of conduct grouped with “use” further supports the conclusion

that the two terms are distinct.

UNITED STATES v. BEAUDION 8483

3531-32 (1993); cf. Taylor v. United States, 495 U.S. 575, 596

(1990) (instructing that the rule of lenity “cannot dictate an

implausible interpretation of a statute, nor one at odds with

the generally accepted contemporary meaning of a term”).

Many concealed uses of a weapon are prime examples of

“uses” that do not constitute “brandishing.” For example, if

Beaudion had used the butt of his rifle to break the bank’s

padlock, or had snuck up on a guard and used the firearm to

knock him unconscious, he would have used his rifle in the

robbery without brandishing it. That each instance of “bran-

dishing” will necessarily include the “use” of a firearm is

unsurprising because § 924(c) creates a tiered framework,

with both of the more serious tiers, discharge of a firearm or

brandishing a firearm, naturally a subset of the most general

level of use of a firearm. Use can occur without brandishing,

and brandishing can occur without discharge, notwithstanding

that brandishing and discharge are each a type of use. The

terms at issue here, brandishing and use, are not ambiguous

because, as illustrated by the above examples, “use” fre-

quently may occur without an instance of “brandishing,” as

will be the case where a firearm is used without displaying it

to anyone.

III

[4] Beaudion next argues that, after Blakely and Booker, the

Sixth Amendment requires that the determination of whether

he “brandished” the firearm be decided by a jury and not by

the district court.5 See Blakely, 124 S. Ct. at 2537 (“[T]he rel-

evant ‘statutory maximum’ is not the maximum sentence a

5

We review for plain error because Beaudion did not raise his Sixth

Amendment challenge below. United States v. Ameline, 409 F.3d 1073,

1078 (9th Cir. 2005) (en banc); Fed. R. Crim. P. 52(b). Plain error

requires: (1) “error,” (2) that is “plain,” and (3) that “affects substantial

rights.” United States v. Olano, 507 U.S. 725, 732 (1993). An error not

plain to the district court but which becomes plain by the time of appeal

qualifies as plain error. Johnson v. United States, 520 U.S. 461, 468

(1997).

8484 UNITED STATES v. BEAUDION

judge may impose after finding additional facts, but the maxi-

mum he may impose without any additional findings.”). The

Supreme Court addressed the constitutionality of the manda-

tory minimum sentences of § 924(c) in Harris v. United

States, holding that a judicial finding that a defendant bran-

dished a firearm under 18 U.S.C. § 924(c)(1) was constitu-

tionally sufficient to impose a mandatory minimum sentence.

536 U.S. 545, 567-68 (2002) (“That factor [brandishing] need

not be alleged in the indictment, submitted to the jury, or

proved beyond a reasonable doubt.”).

[5] Beaudion argues that Harris is no longer good law in

light of the Court’s subsequent decisions in Blakely and

Booker. That question is not properly before us because the

District Judge in this case did not have to make any factual

findings to conclude that Beaudion brandished the rifle. Count

two of Beaudion’s indictment, to which he pleaded guilty,

charged that he “did knowingly use, carry, and brandish” the

rifle in connection with the bank robbery in violation of

§ 924(c)(1)(A)(ii). Beaudion admitted that he walked into the

bank holding the rifle in plain view and laid it on the counter

as he demanded the tellers give him cash. Beaudion merely

denied that these facts legally amounted to brandishing.6 That

the district court disagreed with his legal argument does not

raise a Sixth Amendment issue.

IV

[6] We hold that “use” and “brandish” have distinct mean-

ings within the statutory framework of 18 U.S.C. § 924(c).

We affirm Beaudion’s sentence under 18 U.S.C. § 924(c) for

brandishing a firearm in the robbery.

[7] Although Beaudion does not raise the issue on appeal,

6

Beaudion objected to the testimony alleging that he pointed the rifle at

the tellers, but this fact is unnecessary to conclude that he brandished the

rifle for purposes of § 924(c)(1)(A)(ii).

UNITED STATES v. BEAUDION 8485

the district court sentenced Beaudion under the premise that

the United States Sentencing Guidelines were mandatory. We

now know the Guidelines are advisory. Booker, 125 S. Ct. at

755-56. Pursuant to Ameline, 409 F.3d 1073, 1084 (9th Cir.

2005) (en banc), we ordered the parties to file supplemental

briefs indicating whether either party wished to pursue a

remand. See also United States v. Moreno-Hernandez, No.

03-30387, 2005 WL 1560269, *9 (9th Cir. July 5, 2005).

Beaudion responded affirmatively. Ameline, 409 F.3d at 1084

(“If an eligible party seeks resentencing under Booker/Fanfan,

we will then engage in the plain error analysis described in

this opinion.”). We conclude from the district court’s com-

ments at Beaudion’s sentencing hearing that there is “a rea-

sonable probability that [Beaudion] would have received a

different sentence had the district judge known that the sen-

tencing guidelines were advisory.” Id. at 1078. Accordingly,

we VACATE Beaudion’s sentence and REMAND for resen-

tencing.

AFFIRMED in part, VACATED and REMANDED in

part.