United States v. Bendtzen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50249

Plaintiff-Appellee,

v.  D.C. No.

CR-06-00214-CAS

FREDERICK BENDTZEN,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted

May 5, 2008—Pasadena, California

Filed September 5, 2008

Before: Kim McLane Wardlaw and Sandra S. Ikuta,

Circuit Judges, and Jeremy D. Fogel,* District Judge.

Opinion by Judge Wardlaw

*The Honorable Jeremy D. Fogel, United States District Judge for the

Northern District of California, sitting by designation.

12317

UNITED STATES v. BENDTZEN 12321

COUNSEL

Sean K. Kennedy, Gia Kim, Federal Public Defenders, Los

Angeles, California, for defendant-appellant Frederick Bendt-

zen.

Thomas P. O’Brien, Christine C. Ewell, Christopher K. Lui,

United States Attorneys, Los Angeles, California, for

plaintiff-appellee United States of America.

OPINION

WARDLAW, Circuit Judge:

Frederick Bendtzen pled guilty to bank robbery, in viola-

tion of 18 U.S.C. § 2113(a), and was sentenced to eighty-

months imprisonment, twelve months below the low-end

Guidelines range of ninety-two months, followed by three

years of supervised release. Bendtzen appeals the upward

adjustment to his offense level pursuant to U.S. SENTENCING

GUIDELINES MANUAL (“U.S.S.G.”) § 2B3.1(b)(2) (2005),

which provides for a four-level increase where “a dangerous

weapon was otherwise used,” arguing that because he used

only a fake bomb, he did not use a dangerous weapon within

the meaning of § 2B3.1. He also contends that his criminal

history score overrepresented his criminal past and that the

district court erred by placing him in category VI. Because we

conclude that the district court correctly calculated Bendt-

zen’s Guideline sentence and that the sentence imposed was

reasonable, we affirm.

12322 UNITED STATES v. BENDTZEN

I. BACKGROUND

On March 2, 2006, Bendtzen entered the Santa Barbara

Bank and Trust and handed one of the tellers a note, which

read: “This is a robbery. I have a bomb on me, hand over all

you have or boom. No exploding money! I have a friend out-

side with same trigger. Wait 3 minutes before doing anything

else or boom!!” The teller gave Bendtzen $3,475 from her

drawer. Bendtzen then placed what appeared to be a bomb on

the counter of the bank teller’s window. He pretended to press

the detonator. After instructing the teller to wait four minutes

before doing anything, Bendtzen fled the bank. The Santa

Barbara police responded to the bank’s alarm with a bomb

squad, which removed the device and destroyed a clock that

looked like a detonator. Bendtzen was readily identified

through the bank surveillance photos of the robbery and was

arrested shortly thereafter.

Bendtzen was indicted for bank robbery, in violation of 18

U.S.C. § 2113(a). On September 27, 2006, he entered a guilty

plea. The Probation Office recommended a Guideline sen-

tence of 92 to 115 months, based on a base offense level of

twenty, a two-level upward adjustment for robbing a financial

institution, a four-level upward adjustment for otherwise

using a dangerous weapon, and a three-level downward

adjustment for acceptance of responsibility. The Probation

Office also calculated sixteen criminal history points, placing

Bendtzen in criminal history category VI.

At sentencing, Bendtzen argued that the four-level adjust-

ment for otherwise using a dangerous weapon does not apply

to fake weapons, that the Guidelines language was at best

ambiguous and the rule of lenity should apply, and that his

criminal history calculation was unreasonable. The district

court concluded that by the plain language of the Guidelines,

the four-level enhancement applied to both real and fake

weapons. The court also found that, although the Probation

Office’s criminal history calculation did take into account

UNITED STATES v. BENDTZEN 12323

many minor crimes, it also failed to consider many serious

criminal convictions that were outside the ten-year window,

including probation violations; DUIs; possessing, manufactur-

ing, or selling a dangerous weapon; receipt of known stolen

property; burglary; battery; and others. Therefore, the court

determined, in light of the factors enumerated in 18 U.S.C.

§ 3553(a), that an eighty-month sentence was appropriate.

Bendtzen timely appeals.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 18 U.S.C. §§ 1291,

3742(a). We review de novo the district court’s interpretation

of the Sentencing Guidelines. United States v. Cantrell, 433

F.3d 1269, 1279 (9th Cir. 2006). We review the sentence

imposed for an abuse of discretion. Untied States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). We will reverse

the sentence only where it was procedurally erroneous or sub-

stantively unreasonable. Id.

III. ANALYSIS

A. The Sentencing Guidelines’ Definition of “Dangerous

Weapon”

[1] U.S.S.G. § 2B3.1(a) provides that the Base Offense

Level for Robbery is twenty. Subsection (b)(2) describes the

specific offense characteristics related to the use of a weapon

during the robbery:

(A) If a firearm was discharged, increase by 7 levels;

(B) if a firearm was otherwise used, increase by 6

levels; (C) if a firearm was brandished or possessed,

increase by 5 levels; (D) if a dangerous weapon was

otherwise used, increase by 4 levels; (E) if a danger-

ous weapon was brandished or possessed, increase

by 3 levels; or (F) if a threat of death was made,

increase by 2 levels.

12324 UNITED STATES v. BENDTZEN

U.S.S.G. § 2B3.1(b)(2). The district court increased Bendt-

zen’s sentence under § 2B3.1(b)(2)(D), concluding that the

fake bomb used by Bendtzen falls within the Guidelines defi-

nition of “dangerous weapon.”

[2] The general definition of “dangerous weapon” is set

forth in the Commentary to U.S.S.G. § 1B1.1—the Applica-

tion Instructions. See U.S.S.G. § 2B3.1 cmt. n.1 (2005) (refer-

ring the reader to Application Note 1(D) of § 1B1.1 for the

definition of “dangerous weapon”). Before the year 2000, the

term “dangerous weapon” was defined as “an instrument

capable of inflicting death or serious bodily injury.” U.S.S.G.

§ 1B1.1 cmt. n.1(d) (1998). The Guidelines commentary

directly addressed the use of a weapon that appeared to be

dangerous, but in fact was not, instructing: “Where an object

that appeared to be a dangerous weapon was brandished, dis-

played, or possessed, treat the object as a dangerous weapon.”

Id. Thus, before the 2000 amendments to the definition of

“dangerous weapon,” a court could adjust the offense level by

only three levels and only where the fake weapon was bran-

dished, displayed, or possessed. “Otherwise using” a weapon

that appeared to be dangerous, but was not, could not serve

as the basis for a four-level adjustment.

[3] This was changed when the Sentencing Commission

amended the general definition of “dangerous weapon.” The

Sentencing Commission redefined “dangerous weapon” as

(i) an instrument capable of inflicting death or seri-

ous bodily injury; or (ii) an object that is not an

instrument capable of inflicting death or serious bod-

ily injury but (I) closely resembles such an instru-

ment; or (II) the defendant used the object in a

manner that created the impression that the object

was such an instrument (e.g., a defendant wrapped a

UNITED STATES v. BENDTZEN 12325

hand in a towel during a bank robbery to create the

appearance of a gun).[1]

U.S.S.G. § 1B1.1 cmt. n.1(D) (2005).

According to the Sentencing Commission, the purpose of

the amendment was

to clarify under what circumstances an object that is

not an actual, dangerous weapon should be treated as

one for the purposes of the guideline application.

The amendment is in accord with the decisions in

United States v. Shores, 966 F.2d 1383 (11th Cir.

1992) (toy gun carried but never used by a defendant

qualifies as a dangerous weapon because of its

potential, if it were used, to arouse fear in victims

and dangerous reactions by police or security per-

sonnel) and United States v. Dixon, 982 F.2d 116

(3rd Cir. 1992) (hand wrapped in a towel qualifies as

a dangerous weapon if the defendant’s actions cre-

ated the impression that the defendant possessed a

dangerous weapon).

U.S.S.G. Supp., App. C, vol. II, amend. 601 (2002).

[4] The 2000 amendment, however, went beyond merely

clarifying the definition of “dangerous weapon.” In particular,

by building a direct reference to fake weapons into the general

definition, without any reference to brandishing or possession,

the 2000 amendment applies to both the three- and the four-

level adjustments. Therefore, whereas before the year 2000

1

“The [2000] amendment also delete[d] the term ‘displayed’ wherever

it appears in the Guidelines Manual in an enhancement with ‘brandished.’

Because ‘brandished’ applies in any case in which ‘all or part of the

weapon was displayed,’ the Commission determined that inclusion of ‘dis-

played’ in the[ ] enhancements is redundant. This part of the amendment

[was] not intended to make a substantive change to the guidelines.”

U.S.S.G. Supp., App. C, vol. II, amend. 601.

12326 UNITED STATES v. BENDTZEN

the use of a fake weapon could qualify only for a “brandish-

ing or possessing” adjustment, after the 2000 amendments it

qualifies for all “dangerous weapon” adjustments. Compare

U.S.S.G. § 1B1.1 cmt. n.1(d) (1998), with § 1B1.1 cmt. n.1(d)

(2000).

[5] Bendtzen makes an argument—which we agree with the

district court is interesting but ultimately unpersuasive—that

the distinction between “brandishing” and “otherwise using”

a dangerous weapon, where the use of a fake weapon can

qualify for the former but not the latter adjustment, survives

the 2000 amendments. In support of this argument, Bendtzen

points to the revised Commentary to § 2B3.1, which reads in

relevant part:

Consistent with Application Note 1(d)(ii) of § 1B1.1

(Application Instructions), an object shall be consid-

ered to be a dangerous weapon for purposes of [the

three-level “brandishing” adjustment] if (A) the

object closely resembles an instrument capable of

inflicting death or serious bodily injury; or (B) the

defendant used the object in a manner that created

the impression that the object was an instrument

capable of inflicting death or serious bodily injury

(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. § 2B3.1 cmt. n.2 (2005). This definition is identical

to the general definition of “dangerous weapon,” but only ref-

erences the three-level “brandishing” adjustment. Thus,

Bendtzen argues that this narrower definition applies, and,

accordingly, the use of a fake weapon can qualify only for the

three-level adjustment.

[6] However, applying this narrower definition of “danger-

ous weapon” is prohibited by the Guidelines. The expansive

definition is “of general applicability . . . except to the extent

expressly modified in respect to a particular guideline or pol-

UNITED STATES v. BENDTZEN 12327

icy statement.” U.S.S.G. § 1B1.1 cmt. n.1 (emphasis added).

The narrower definition does not expressly modify the general

definition. See United States v. Orr, 312 F.3d 141, 144 (3d

Cir. 2002) (“An omission in the partial restatement of [Appli-

cation Note 1(d) to § 1B1.1’s definition of dangerous weapon]

in Application Note 2 to § 2B3.1 does not expressly circum-

scribe the general definition, especially in light of the recogni-

tion in Application Note 2 to § 1B1.1 that “[d]efinitions of

terms also may appear in other sections.”) (second alteration

in original). To the contrary, the narrow definition’s prefatory

clause states that it is “[c]onsistent with Application Note

1(d)(ii) of § 1B1.1”—the general definition of “dangerous

weapon.” U.S.S.G. § 2B3.1 cmt. n.2 (emphasis added). We

therefore decline to read the narrow definition of “dangerous

weapon” as overriding the general definition.

[7] Bendtzen points out that the prefatory clause to the

revised Commentary, which explicitly incorporates the gen-

eral definition, creates a redundancy. “It is a well-established

principle of statutory construction that ‘legislative enactments

should not be construed to render their provisions mere sur-

plusage.’ ” Am. Vantage Cos., Inc. v. Table Mountain Ran-

cheria, 292 F.3d 1091, 1098 (9th Cir. 2002) (quoting Dunn v.

Commodity Futures Trading Comm’n, 519 U.S. 465, 472

(1997)). Under Bendtzen’s view, to avoid construing the

revised definition as a mere redundancy, it must be read as

limiting the general definition of “dangerous weapon” as

applying only to the three-level “brandishing” adjustment.

[8] Like most rules of statutory interpretation, the canon of

statutory construction upon which Bendtzen relies is not an

absolute principle. An unnecessary provision within a statute,

“inserted out of an abundance of caution[, is] a drafting

imprecision venerable enough to have left its mark on legal

Latin (ex abundanti cautela).” Fort Stewart Sch. v. Fed.

Labor Relations Auth., 495 U.S. 641, 646 (1990). It is likely

that the narrow definition was inserted out of excess caution

to ensure that district courts would apply the new, general

12328 UNITED STATES v. BENDTZEN

definition of “dangerous weapon” when applying the three-

level “brandishing” adjustment. See Orr, 312 F.3d at 144 (“It

is . . . likely that Application Note 2 to § 2B3.1 focuses on

reminding district courts to apply the expansive definition of

“dangerous weapon” in § 1B1.1.”).

[9] We conclude that the general definition of “dangerous

weapon,” which includes objects that appear to be dangerous

weapons, applies to both the three-level “brandishing” adjust-

ment as well as the four-level “otherwise used” adjustment.

The district court correctly found that Bendtzen “otherwise

used” a fake bomb. The parties do not—indeed they cannot—

dispute that Bendtzen’s conduct was more culpable than mere

“brandishing.” His use of the fake bomb was intended to and

did have a coercive effect and aroused fear and panic in the

bank. He threatened to kill the bank teller by pretending to

press a detonator and leaving the fake bomb on the teller’s

counter. The use of the fake bomb required the resources of

the city to ensure the public safety exactly as a real bomb

would have required. Indeed, to ensure the safety of the

bank’s employees and others, the Santa Barbara Police bomb

squad evacuated the bank and used a robot to remove the

device, which was then destroyed. Bendtzen’s conduct is vir-

tually indistinguishable from that of the defendant’s in United

States v. Miller, 206 F.3d 1051, 1052 (11th Cir. 2000), who

used a fake bomb to rob a bank. In Miller, the Eleventh Cir-

cuit held that “lighting the fuse [of a fake bomb] is like the

cocking of a handgun,” and thus it constitutes “otherwise

us[ing]” a fake bomb. Id. at 1054. Because Bendtzen “other-

wise used” an object that closely resembled an instrument

capable of inflicting death or serious bodily injury—a fake

bomb—when he robbed the Santa Barbara Bank and Trust,

the district court did not err in applying the four-level adjust-

ment to his offense level.

[10] We also reject Bendtzen’s argument that, because

these Guidelines provisions create an ambiguity, the rule of

lenity should apply. See United States v. Fuentes-Barahona,

UNITED STATES v. BENDTZEN 12329

111 F.3d 651, 653 (9th Cir. 1997) (per curiam) (holding that

the rule of lenity applies to the Sentencing Guidelines as well

as to penal statutes). The rule of lenity is applicable only

where “there is a grievous ambiguity or uncertainty in the lan-

guage and structure of [an] Act, such that even after a court

has seize[d] every thing from which aid can be derived, it is

still left with an ambiguous statute.” Chapman v. United

States, 500 U.S. 453, 463 (1991) (second alteration in origi-

nal, internal quotation marks and citations omitted); see also

United States v. Technic Servs., Inc., 314 F.3d 1031, 1052

(9th Cir. 2002) (noting that application of the rule of lenity is

appropriate only if the Guidelines are “truly ambiguous”).

Here, although Bendtzen advanced an argument that, if

accepted, might create an ambiguity where none otherwise

exists, it remains the case that, simply read, the definition of

“dangerous weapon” uniformly applies to both the “brandish-

ing” and “otherwise using” adjustments. Because the plain

meaning of these Guidelines provisions is clear, the rule of

lenity is inapplicable.

B. Reasonableness of Bentdzen’s Sentence

Bendtzen argues that the sentence imposed by the district

court was unreasonable because it did not take into account

the overstated nature of his criminal history score. Bendtzen

points out that three of his convictions were a month shy of

falling beyond the ten-year window at the time he committed

the instant offense and that they were each of a minor nature.

The Government responds that a below-Guidelines sentence

should be presumed reasonable and that even without the pre-

sumption, Bendtzen’s sentence is reasonable.

[11] In Carty, we clarified that “[o]n appeal, we first con-

sider whether the district court committed significant proce-

dural error, then we consider the substantive reasonableness

of the sentence.” 520 F.3d at 993. We explicitly rejected any

presumption of reasonableness for within-Guidelines sen-

tences. Id. at 988.

12330 UNITED STATES v. BENDTZEN

[12] “It would be procedural error for a district court to fail

to calculate—or to calculate incorrectly—the Guidelines

range; to treat the Guidelines as mandatory instead of advi-

sory; to fail to consider the § 3553(a) factors; to choose a sen-

tence based on clearly erroneous facts; or to fail adequately to

explain the sentence selected . . . .”2 Carty, 520 F.3d at 993.

Bendtzen’s sentence was correctly calculated. The district

court properly counted “[a]ny . . . prior sentence that was

imposed within ten years of the defendant’s commencement

of the instant offense.” U.S.S.G. § 4A1.2(e)(2) (2005). In

addition, the district court did not treat the Guidelines as man-

datory; indeed, it imposed a sentence below the Guidelines

range. Further, the district court carefully considered the

§ 3553(a) factors, and imposed a sentence that was sufficient,

but not greater than necessary, to achieve the goals of sentenc-

ing.3 Finally, the court’s explanation for the sentence is more

than adequate. Following arguments from counsel, the court

explained that Bendtzen had “a serious criminal history situa-

tion,” but had “suffered from extreme childhood abuse,” was

“extremely remorseful,” had drug and alcohol problems that

contributed to the offense, and had “very supportive parents.”

The district court also reasoned on the record that an eighty-

month sentence would serve as much of a deterrent as a sen-

tence within the Guidelines range. Finally, the court rejected

Bendtzen’s argument that his criminal history was overrepre-

sented because he had committed several serious crimes that

were not counted, balancing out the aged and minor nature of

some of the counted convictions. See Rita v. United States,

2

Bendtzen does not challenge any of the district court’s findings as

clearly erroneous.

3

At Bendtzen’s sentencing hearing, the district court stated:

[I]n this case it seems to me that the question that I have to

answer when I evaluate the 3553(a) factors is . . . whether the

sentence imposed is a sufficient deterrent. And I have to say after

looking at this file that I think 80 months in custody is a suffi-

cient deterrent and 92 months in custody would not make any dif-

ference under the 3553(a) factors.

UNITED STATES v. BENDTZEN 12331

127 S.Ct. 2456, 2469 (2007) (holding that there was no proce-

dural error when a district court simply stated that defendant’s

reasons for a below-Guidelines sentence were “insufficient,”

and that a sentence at the bottom of the Guidelines range was

“appropriate”); Carty, 520 F.3d at 995 (upholding a sentence

in a case that was not complex, even though the district court

“gave no explicit reasons” for the sentence imposed).

[13] Bendtzen nevertheless argues that the sentence is sub-

stantively unreasonable given the nature of his criminal his-

tory. Although we do not presume a sentence is reasonable

because it is within or below the Guidelines range, “we recog-

nize that a correctly calculated Guidelines sentence will nor-

mally not be found unreasonable on appeal.” Carty, 520 F.3d

at 988. “For a non-Guidelines sentence, we are to ‘give due

deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.’ ” Id. at

993 (quoting Gall v. United States, 128 S.Ct. 586, 597

(2007)).

Because “a Guidelines sentence ‘will usually be reason-

able,’ ” id. at 994 (quoting Rita, 127 S.Ct. at 2465), Bendt-

zen’s below-Guidelines sentence, supported by the district

court’s specific reasoning, is reasonable. See United States v.

Perez-Perez, 512 F.3d 514, 515-16 (9th Cir. 2008) (holding

that a within-Guidelines sentence based in part on the defen-

dant’s extensive criminal history was reasonable despite the

defendant’s argument that his prior drug conviction was de

minimis).

CONCLUSION

[14] The Sentencing Guidelines provide a four-level adjust-

ment for “otherwise us[ing]” a dangerous weapon in connec-

tion with a robbery. U.S.S.G. § 2B3.1(b)(2)(D). For purposes

of this adjustment, the definition of “dangerous weapon”

includes objects that appear to be instruments capable of

inflicting death or serious bodily injury. U.S.S.G. § 1B1.1

12332 UNITED STATES v. BENDTZEN

cmt. n.1(D). Bendtzen’s use of the fake bomb constituted

“otherwise us[ing] a dangerous weapon.” Further, the district

court did not err by considering Bendtzen’s past crimes and

thereby arriving at a category VI criminal history. Accord-

ingly, Bendtzen’s eighty-month sentence is substantively rea-

sonable.

AFFIRMED.